SC: Admits gross misuse of 498-A

CASE NO.:
Appeal (crl.) 206 of 2008

PETITIONER:
Som Mittal

RESPONDENT:
Govt. of Karnataka

DATE OF JUDGMENT: 29/01/2008

BENCH:
H.K. Sema & Markandey Katju

JUDGMENT:
J U D G M E N T
(Arising out of Special Leave Petition (Crl.) NO. 1719 OF 2006)
Delivered by:
H.K. SEMA, J
MARKANDEY KATJU, J


H.K.SEMA,J.



(1) Leave granted.

(2) Heard learned counsel for the parties.

(3) This appeal is directed against the judgment and
order dated 28th March, 2006 passed by the High Court of
Karnataka at Bangalore in Criminal Petition No. 1535 of 2006
filed under Section 482 of the Code of Criminal Procedure with
a prayer to quash cognizance of offence under Sections 25 and
30(3) of the Karnataka Shops and Commercial Establishments
Act, 1961 (in short the Act ) by Metropolitan Magistrate Traffic
Court III.
(4) In view of the order that we propose to pass, it may
not be necessary to recite the entire facts leading to the filing
of the present appeal. Suffice it to say that an unfortunate
incident had occurred on 13th December, 2005 in which late
Smt. Pratibha Srikant Murthy was stated to have been
murdered on her way to work from her residence. Pursuant to
the aforesaid incident a complaint was filed on 27th December,
2005 against the appellant alleging violation of Sections 25
and 30(3) of the Act before the Metropolitan Magistrate. On
30th December, 2005, the Metropolitan Magistrate took
cognizance of the offences under aforesaid sections of the Act.
On 23rd March, 2006, a petition under Section 482 of the Code
of Criminal Procedure for quashing of the complaint and
cognizance was filed before the High Court. The High Court,
by its impugned order dated 28th March, 2006, dismissed the
petition. Hence, the present appeal by special leave.
(5) The High Court, by its impugned order, has altered
the cognizance taken by the Magistrate under Section 25 read
with Section 30(3) to that one under Section 25 read with
Section 30(1) of the Act. The High Court was of the view that
taking cognizance against the appellant cannot be found fault
with and dismissed the petition.
(6) It is noticed, therefore, that petition under
Section
482 was filed at the threshold for quashing of the cognizance
taken by the Magistrate.
(7) Mr. K. K. Venugopal, learned Senior counsel for the
appellant has addressed us on merits of the case. He would
contend that the appellant is a Managing Director and
occupying the position of management and, therefore, he
would be entitled for exemption under Section 3(h) of the Act.
He would further contend that the appellant, being Managing
Director of the company, would not be liable for prosecution
under Section 25 read with Section 30(1) of the Act.
(8) Per contra, Ms Anitha Shenoy, learned counsel
appearing on behalf of the respondent, contended that
Chapter VIII of the Act deals with a penal provision. She
would contend that the language, Whoever contravenes
employed in Section 30 of the Act would include the Managing
Director.

(9) At this stage we are not prepared to enter into the
merits of the case on the basis of contentions urged by the
respective counsel. Here are our reasons:
(10) In a catena of decisions this Court has deprecated
the interference by the High Court in exercise of its inherent
powers under Section 482 of the Code in a routine manner. It
has been consistently held that the power under Section 482
must be exercised sparingly, with circumspection and in
rarest of rare cases. Exercise of inherent power under Section
482 of the Code of Criminal Procedure is not the rule but it is
an exception. The exception is applied only when it is brought
to the notice of the Court that grave miscarriage of justice
would be committed if the trial is allowed to proceed where the
accused would be harassed unnecessarily if the trial is allowed
to linger when prima facie it appears to Court that the trial
would likely to be ended in acquittal. In other words, the
inherent power of the Court under Section 482 of the Code of
Criminal Procedure can be invoked by the High Court either to
prevent abuse of process of any Court or otherwise to secure
the ends of justice.

(11) This Court, in a catena of decisions, consistently
gave a note of caution that inherent power of quashing a
criminal proceeding should be exercised very sparingly and
with circumspection and that too in the rarest of rare cases.
This Court also held that the High Court will not be justified in
embarking upon an inquiry as to the reliability or genuineness
or otherwise of the allegations made in the F.I.R. or the
complaint and that the extra-ordinary or inherent powers do
not confer an arbitrary jurisdiction on the court to act
according to its whims and caprice.
(12) We now refer to a few decisions of this Court
deprecating the exercise of extra ordinary or inherent powers
by the High Court according to its whims and caprice.
(13) In State of Bihar v. J.A.C. Saldanha (1980) 1
SCC 554 this Court pointed out at SCC p. 574:
The High Court in exercise of the extraordinary
jurisdiction committed a grave error by making
observations on seriously disputed questions of
facts taking its cue from affidavits which in such a
situation would hardly provide any reliable material.
In our opinion the High Court was clearly in error in
giving the direction virtually amounting to a
mandamus to close the case before the investigation
is complete. We say no more.
(14) In Hazari Lal Gupta v. Rameshwar Prasad (1972)
1 SCC 452 this Court at SCC p. 455 pointed out:
In exercising jurisdiction under Section 561-A of
the Criminal Procedure Code, the High Court can
quash proceedings if there is no legal evidence or if
there is any impediment to the institution or
continuance of proceedings but the High Court does
not ordinarily inquire as to whether the evidence is
reliable or not . Where again, investigation into the
circumstances of an alleged cognizable offence is
carried on under the provisions of the Criminal
Procedure Code, the High Court does not interfere
with such investigation because it would then be
the impeding investigation and jurisdiction of
statutory authorities to exercise power in
accordance with the provisions of the Criminal
Procedure Code.

(15) In Jehan Singh v. Delhi Administration (1974) 4
SCC 522 the application filed by the accused under Section
561-A of the old Code for quashing the investigation was
dismissed as being premature and incompetent on the finding
that prima facie, the allegations in the FIR, if assumed to be
correct, constitute a cognizable offence.

(16) In Kurukshetra University v. State of Haryana
(1977) 4 SCC 451, this Court pointed out:
It surprises us in the extreme that the High Court
thought that in the exercise of its inherent powers
under Section 482 of the Code of Criminal
Procedure, it could quash a first information report.
The police had not even commenced investigation
into the complaint filed by the Warden of the
University and no proceeding at all was pending in
any court in pursuance of the FIR. It ought to be
realized that inherent powers do not confer an
arbitrary jurisdiction on the High Court to act
according to whim or caprice. That statutory power
has to be exercised sparingly, with circumspection
and in the rarest of rare cases.
(emphasis supplied)

(17) In State of Bihar v. Murad Ali Khan (1988) 4 SCC
655 this Court held that the jurisdiction under Section 482 of
the Code has to be exercised sparingly and with
circumspection and has given the working that in exercising
that jurisdiction, the High Court should not embark upon an
enquiry whether the allegations in the complaint are likely to
be established by evidence or not.
(18) In State of Haryana & ors (appellant) v. Bhajan
Lal & ors. (respondents) 1992 Supp. (1) SCC 335, this Court
after referring to various decisions of this Court, enumerated
various categories of cases by way of illustration wherein the
inherent power under Section 482 of the Code should be
exercised by the High Court. They are:
(1) Where the allegations made in the first
information report or the complaint, even if they are
taken at their face value and accepted in their
entirety do not prima facie constitute any offence or
make out a case against the accused.
(2) Where the allegations in the first information
report and other materials, if any, accompanying
the FIR do not disclose a cognizable offence,
justifying an investigation by police officers under
Section 156(1) of the Code except under an order of
a Magistrate within the purview of Section 155(2) of
the Code.

(3) Where the uncontroverted allegations made in
the FIR or complaint and the evidence collected in
support of the same do not disclose the commission
of any offence and make out a case against the
accused.

(4) Where, the allegations in the FIR do not
constitute a cognizable offence but constitute only a
non-cognizable offence, no investigation is permitted
by a police officer without an order of a Magistrate
as contemplated under Section 155(2) of the Code.

(5) Where the allegations made in the FIR or
complaint are so absurd and inherently improbable
on the basis of which no prudent person can ever
reach a just conclusion that there is sufficient
ground for proceeding against the accused.

(6) Where there is an express legal bar engrafted in
any of the provisions of the Code or the concerned
Act (under which a criminal proceeding is
instituted) to the institution and continuance of the
proceedings and/or where there is a specific
provision in the Code or the concerned Act,
providing efficacious redress for the grievance of the
aggrieved party.

(7) Where a criminal proceeding is manifestly
attended with mala fide and/or where the
proceeding is maliciously instituted with an ulterior
motive for wreaking vengeance on the accused and
with a view to spite him due to private and personal
grudge.
(19) We may observe here that despite this Court s
consistently held in catena of decisions that inherent power of
the High Court should not be exercised according to whims
and caprice and it has to be exercised sparingly, with
circumspection and in the rarest of rare cases, we often come
across the High Court exercising the inherent power under
Section 482 of the Code of Criminal Procedure in a routine
manner at its whims and caprice setting at naught the
cognizance taken and the FIR lodged at the threshold
committing grave miscarriage of justice. While it is true that
so long as the inherent power of Section 482 is in the Statute
Book, exercise of such power is not impermissible but it must
be noted that such power has to be exercised sparingly with
circumspection and in the rarest of rare cases, the sole aim of
which is to secure the ends of justice. The power under
Section 482 is not intended to scuttle justice at the threshold.
(20) The rulings cited by Mr. K.K. Venugopal East
India Commercial Co. Ltd., Calcutta & Anr. V. The
Collector of Customs, Calcutta 1963 (3) SCR 338; T. Prem
Sagar v. The Standard Vacuum Oil Company Madras &
Ors. 1964 (5) SCR 1030; Boothalinga Agencies v. V.T.C.
Poriaswami Nadar 1969 (1) SCR 65; and S.M.S.
Pharmaceuticals Ltd. V. Neeta Bhalla & Anr. (2005) 8 SCC
89 are not applicable in the facts of this case at this stage in
view of our view above.


(21) In the result, there is no infirmity in the order
passed by the High Court warranting our interference in
exercise of our power under Article 136 of the Constitution.
This appeal is, accordingly, dismissed.

(22) We clarify that we do not express any opinion on the
merits of the case. The trial court shall decide the matter
expeditiously uninfluenced by any observations made by this
Court or the High Court. The trial court shall decide the
maintainability of the complaint at the time of consideration of
the charge. We further make it clear that it is open to the
parties to urge all the contentions as available under the law,
including the maintainability of the complaint before the trial
judge at the time of consideration of this charge.
(23) With these observations and directions, the appeal
is dismissed.

Markandey Katju, J.



1. I have perused the judgment of my learned brother Hon ble
H.K.
Sema, J. in this appeal.

2. I respectfully agree with his conclusion that the appeal be
dismissed
but only because of the observations in his judgment that we are not
expressing any opinion on the merits of the case. However, I think
it is
necessary to give my separate concurrent judgment in this case.

3. The appellant before us, Mr. Som Mittal, is the Managing
Director of
Hewlett Packard Global Soft Ltd. He filed a petition under Section
482,
Cr.P.C. before the Karnataka High Court challenging the order dated
30.12.2003 passed by the Metropolitan Magistrate Traffic Court III,
Bangalore, taking cognizance of an offence under Section 25 of the
Karnataka Shops and Commercial Establishments Act, 1961 (in short
`the
Act ) read with Section 30(3) of the same and also the conditions
imposed
by the Karnataka Government in its order dated 9.2.2005. It may be
mentioned that cognizance was taken on a complaint filed by the
respondent
through its Senior Labour Inspector, 18th Circle, Bangalore.

4. Section 25 as amended by Act No.14 of 2002 reads as follows :

25. Prohibition of employment of women and young
persons during night: No woman, or a young person,
shall be required or allowed to work whether as an
employee or otherwise in any establishment during
nights.

Provided that the State Government may, by
notification exempt any establishment of Information
Technology or Information Technology enabled service
from the provisions of this section relating to,
employment of women during night subject to the
condition that the establishment provides facilities of
transportation and security to such women employees
and subject to any other condition as may be specified in
the notification.

5. It may be noted from the above provision that while the main
part of
Section 25 is prohibition of employment of women and young persons
in a
shop or commercial establishment during night, the proviso enables
the State
Government to exempt any establishment of Information Technology
from
the provisions of the section subject to the condition that the
establishment
provides facility for transportation and security to the woman
employees.

6. The Deputy Labour Commissioner, Region 2, Bangalore, in
exercise
of the power under the proviso to Section 25 issued an office order
in terms
of Section 25 read with Rule 24(b) of the Karnataka Shops and
Commercial
Establishments Rules 1963 granting exemption. Condition No.2 of the
said
Order stated :

Transport facilities from the residence to workplace and
back shall be provided free of cost and with adequate
security.

7. It appears that on 13.12.2005 at about 2 a.m. a woman
employee of
the Company of which the appellant was Managing Director was
traveling
from her house to the workplace situated in Electronic City,
Bangalore.
While on the way the vehicle driver took the vehicle to a secluded
place and
raped and killed the said woman employee. This fact finds reference
in the
letter of the Bangalore City Police Commissioner dated 26.12.2005
addressed to the Labour Commissioner, and in the said letter it is
stated that
adequate security had not been provided to the said woman employee
during
her travel from her home to the workplace. It is on the basis of
this letter
that the complaint was filed on the basis of which cognizance was
taken by
the learned Magistrate.

8. Shri K.K. Venugopal, learned counsel for the appellant, has
invited
our attention to Section 3(1)(h) of the Act which states :
3(1) Nothing in this Act shall apply to

(h) person occupying positions of management in
any establishment.

9. We agree with Shri Venugopal that the Managing Director is
surely a
person occupying a position of management in the establishment and
hence
Section 3(1)(h) is clearly attracted to the facts of this case.

10. However, learned counsel for the State Government has relied
on
Section 2(h) of the Act which states :

2(h) Employer means a person having charge of or
owning or having ultimate control over the affairs of an
establishment and includes members of the family of an
employer, a manager, agent or other person acting in the
general management or control of an establishment;

11. Learned counsel for the respondent submitted that Section 30
(1) of the
Act states that Whoever contravenes any of the provisions of
Sections 4, 5 -
-----, 25 and 39, shall, on conviction, be punished with fine .
She
submitted that the word whoever in section 30 is broad enough to
include
the Managing Director also.

12. To my mind, there seems to be some apparent conflict between
section 30 and section 3(1)(h) of the Act since while the latter
provision
states that a person in a position of management is outside the
purview of the
Act, it is contended by counsel for the respondent that the former
provision
includes a person in management also since the word whoever is
very
wide.

13. Since section 30 is also part of the Act, hence prima facie
it seems that
a Managing Director does not come within the purview of the Act in
view of
section 3(1)(h). It prima facie seems that only persons not in a
position of
management will come within the purview of the Act, and hence they
alone
can be penalized under Section 30. If persons in a position of
management
are also intended to be penalized then that will require an
amendment to the
Act, in particular Section 3(1)(h) thereof. The Court cannot amend
an Act of
the legislature, and cannot fill up a casus omissus.

14. However, I am not expressing any final opinion on the
merits of the
matter, and it is left open for the court concerned to interpret the
various
provisions of the Act.

15. While I agree with my learned brother, Hon ble Sema J. that
the
power under section 482 Cr.P.C. is to be exercised sparingly, I
cannot agree
with my learned brother that it should be exercised in the rarest
of the rare
cases .

16. The expression rarest of the rare cases was used in
connection with
Section 302 IPC to hold that death penalty should only be imposed in
rarest
of rare cases vide Constitution Bench decision of this Court in
Bachan
Singh vs. State of Punjab (vide para 207) AIR 1980 SC 898. In my
opinion, this expression cannot be extended to a petition under
Section 482
Cr.P.C.. Though I agree with my learned brother Hon ble Sema J.
that the
power under Section 482 Cr.P.C. should be used sparingly, yet there
may be
occasions where in the interest of justice the power should be
exercised.

17. In this connection, I would also like to refer to the
situation prevailing
in the State of Uttar Pradesh where due to deletion of the provision
for
anticipatory bail under Section 438 Cr.P.C. by Section 9 of
the U.P. Act
16 of 1976, huge difficulties have been created both for the public
as well as
for the Allahabad High Court.

18. It may be noted that in U.P. such provision for anticipatory
bail has
been deleted while it continues to exist in all other States in
India, even in
terrorist affected States. The result is that thousands of
petitions under
Section 482 are filed every year in Allahabad High Court praying for
stay of
arrest or for quashing the FIR, because in the absence of the
provision of
anticipatory bail many persons who are innocent cannot get
anticipatory bail
even though the FIR filed against them may be frivolous and/or
false. Even
if such persons get regular bail under Section 439, before that they
will have
to go to jail, and thus their reputation in society may be
irreparably
tarnished.

19. It has been held by this Court in Joginder Kumar vs. State
of U.P.
and others AIR 1994 SC 1349 (vide para 24) that No arrest can be
made
because it is lawful for the Police Officer to do so. The existence
of the
power to arrest is one thing and the justification for the exercise
of it is quite
another. The Police Officer must be able to justify the arrest
apart from his
power to do so. Arrest and detention in police lock up of a person
can cause
incalculable harm to the reputation and self esteem of a person. No
arrest
can be made in a routine manner on a mere allegation of commission
of an
offence made against a person. It would be prudent for a Police
Officer in
the interest of protection of the constitutional right of a citizen
and perhaps
in his own interest that no arrest should be made without a
reasonable
satisfaction reached after some investigation as to the genuineness
and bona
fides of a complaint and a reasonable belief both as to the person s
complicity and even so as to the need to effect arrest. Denying a
person of
his liberty is a serious matter. The recommendation of the Police
Commissioner merely reflects the constitutional concomitants of the
fundamental right to personal liberty and freedom.
A person is not liable to arrest merely on the suspicion of
complicity in an
offence. There must be a reasonable justification in the opinion of
the
officer effecting the arrest that such arrest is necessary and
justified. Except
in heinous offences, an arrest must be avoided if a police officer
issues
notice to a person to attend the Station House and not to leave
Station
without permission would do.
20. In para 13 of the same judgment this Court has also referred
to the
Third Report of the National Police Commission which stated that by
and
large nearly 60% of the arrests in the country were unnecessary or
unjustified. Also, 43.2 % of the expenditure in jails was over such
prisoners
only who need not have been arrested at all.

21. Despite this categorical judgment of the Supreme Court it
appears that
the police is not at all implementing it. What invariably happens
is that
whenever an FIR of a cognizable offence is lodged the police
immediately
goes to arrest the accused person. This is clear violation of the
aforesaid
judgment of the Supreme Court.

22. It may be noted that Section 2(c) Cr.P.C. defines a
cognizable offence
as an offence in which a police officer may arrest without warrant.
Similarly
Section 41 Cr.P.C. states a police officer may arrest a person
involved in a
cognizable offence. The use of the word `may shows that a police
officer is
not bound to arrest even in a case of a cognizable offence. When he
should
arrest and when not is clarified in Joginder Kumar s case (supra).

23. Again in Section 157(1) Cr.P.C. it is mentioned that a
police officer
shall investigate a case relating to a cognizable offence, and if
necessary take
measures for the arrest of the offender. This again makes it clear
that arrest
is not a must in every case of a cognizable offence.

24. Because of absence of the provision for anticipatory bail in
U.P.
thousands of writ petitions and Section 482 Cr.P.C. applications are
being
filed in the Allahabad High Court praying for stay of the petitioner
s arrest
and/or quashing the FIR. This is unnecessarily increasing the work
load of
the High Court and adding to the arrears, apart from the hardship to
the
public, and overcrowding in jails.

25. The right to liberty under Article 21 of the Constitution is
a valuable
right, and hence should not be lightly interfered with. It was won
by the
people of Europe and America after tremendous historical struggles
and
sacrifices. One is reminded of Charles Dicken s novel `A Tale of
Two
Cities in which Dr. Manette was incarcerated in the Bastille for 18
years on
a mere lettre de cachet of a French aristocrat, although he was
innocent.

26. In Ghani vs. Jones (1970) 1 Q.B. 693 (709) Lord Denning
observed :
A man s liberty of movement is regarded so
highly by the Law of England that it is not to be hindered
or prevented except on the surest grounds.

The above observation has been quoted with approval by a
Constitution
Bench decision of this Court in Maneka Gandhi vs. Union of India AIR
1978 SC 597 (vide para 99).

27. Despite this clear enunciation of the law many people are
arrested and
sent to the jail on the basis of false and/or frivolous FIRs.

28. In my opinion the problem will be obviated by restoring the
provision
for anticipatory bail which was contained in Section 438 Cr.P.C. but
was
deleted in U.P. by Section 9 of U.P. Act 16 of 1976.

29. It is surprising that the provision for anticipatory bail
has been deleted
in U.P although it exists in all other States in India, even in
terrorist affected
States. I do not understand why this provision should not exist in
U.P. also.

30. As pointed out in Balchand Jain vs. State of Madhya Pradesh
AIR
1977 SC 366, the provision for anticipatory bail was included in the
Cr.P.C.
of 1973 in pursuance of the Forty First Report of the Law Commission
which observed:-

The necessity for granting anticipatory bail arises
mainly because sometimes influential persons try to
implicate their rivals in false cases for the purpose of
disgracing them or for other purposes by getting them
detained in jail for some days. In recent times, with the
accentuation of political rivalry, this tendency is showing
signs of steady increase. Apart from false cases, where
there are reasonable grounds for holding that a person
accused of an offence is not likely to abscond, or
otherwise misuse his liberty while on bail, there seems no
justification to require him first to submit to custody and
remain in prison for some days and then apply for bail.

31. Thus the provision for anticipatory bail was introduced in
the Cr.P.C.
because it was realized by Parliament in its wisdom that false and
frivolous
cases are often filed against some persons and such persons have to
go to jail
because even if the First Information Report is false and frivolous
a person
has to obtain bail, and for that he has to first surrender before
the learned
Magistrate, and his bail application is heard only after several
days (usually
a week or two) after giving notice to the State. During this period
the
applicant has to go to jail. Hence even if such person subsequently
obtains
bail his reputation may be irreparably tarnished, as held by the
Supreme
Court in Joginder Kumar s case (supra). The reputation of a person
is a
valuable asset for him just as in law the good will of a firm is an
intangible
asset. In Gita Lord Krishna said to Arjun:
lEHkkforL;
pkdhfrZej.kknfrfjP;rss
For a self-respecting man, death is preferable to dishonour
(Gita Chapter 2, Shloka 34)
32. No doubt anticipatory bail is not to be granted as a matter
of course by
the Court but only in accordance with the principles laid down by
the
Supreme Court in Gurbaksh Singh vs. State of Punjab AIR 1980 SC
1632.
However, we are of the view that there must be a provision for
anticipatory
bail in U.P. for the reason already mentioned above.

33. Experience has shown that the absence of the provision for
anticipatory bail has been causing great injustice and hardship to
the citizens
of U.P. For instance, often false FIRs are filed e.g. under Section
498A IPC,
Section 3/4 Dowry Prohibition Act etc. Often aged grandmothers,
uncles,
aunts, unmarried sisters etc. are implicated in such cases, even
though they
may have nothing to do with the offence. Sometimes unmarried girls
have
to go to jail, and this may affect their chances of marriage. As
already
observed by me above, this is in violation of the decision of this
Court in
Joginder Kumar s case (supra), and the difficulty can be overcome by
restoring the provision for anticipatory bail.

34. Moreover, the Allahabad High Court is already over-burdened
with
heavy arrears and overloaded with work. This load is increasing
daily due to
the absence of the provision for anticipatory bail. In the absence
of such
provision whenever an FIR is filed the accused person files a writ
petition or
application under Section 482 Cr.P.C. and this has resulted in an
unmanageable burden on this Court. Also jails in U.P. are
overcrowded.

35. The Allahabad High Court had on several occasions requested
the
State Government to issue an Ordinance immediately to restore the
provision for anticipatory bail, (e.g. in Vijay Kumar Verma vs.
State of
U.P., 2002 Cr.L.J. 4561) but all its requests seem to have fallen on
deaf ears.
It seems that there is an impression in some quarters that if the
provision for
anticipatory bail is restored crimes will increase. In my opinion
this is a
specious argument, since it has not made much difference to the
crime
position in the States where the provision for anticipatory bail
exists, even in
terrorist affected States. No doubt the recommendation of a Court
is not
binding on the State Government/State Legislature but still it
should be
seriously considered, and not simply ignored. The Court usually
makes a
recommendation when it feels that the public is facing some
hardship. Such
recommendation should, therefore, be given respect and serious
consideration.

36. I, therefore, make a strong recommendation to the U.P.
Government
to immediately issue an Ordinance to restore the provision for
anticipatory
bail by repealing Section 9 of U.P. Act No. 16 of 1976, and
empowering the
Allahabad High Court as well as the Sessions Courts in U.P. to grant
anticipatory bail.

37. In this connection I may also refer to the decision of the
Seven Judge
Full Bench of Allahabad High Court in Smt. Amarawati and another vs.
State of U.P. (2005 Crl. L.J. 755) in which the Full Bench has
mentioned
that the Sessions Judge while considering a bail application under
Section
439 Cr.P.C. can grant interim bail till the final disposal of the
bail
application subsequently. This will enable innocent persons to
avoid going
to jail pending consideration of their bail application.

38. I am informed that despite this Seven Judge Full Bench
judgment
which has clearly mentioned that a Sessions Judge can grant interim
bail, the
Session Courts in U.P. are ignoring the said judgment and are not
granting
interim bail pending disposal of the final bail application even in
appropriate
cases. This is wholly improper. Decisions of this Court and of the
High
Court must be respected and carried out by the sub-ordinate courts
punctually and faithfully. It is, therefore, directed that
Amarawati s case
(supra) must be implemented in letter and spirit by the Sessions
Courts in
U.P. and in this connection the Registrar General of Allahabad High
Court
will circulate letters to all the District Judges in U.P. along with
a copy of
this judgment to ensure faithful compliance of the decision of the
Full Bench
decision of the High Court in Amarawati s case (supra).

39. The Secretary General of this Court shall send a copy of my
judgment
to the Chief Secretary, Home Secretary and Law Secretary of U.P. as
well as
to the Registrar General of Allahabad High Court and also to the
President/Secretary of Allahabad Bar Association and the Allahabad
High
Court Advocates Association as well as Oudh Bar Association,
Lucknow
forthwith. A copy shall also be sent to the Chief Secretary, Home
Secretary
and Law Secretary of all State Governments/Union Territories in
India who
shall direct all officials to strictly comply with the judgment of
this Court in
Joginder Kumar s case (supra).

RTI information can't be denied on ground of pending probe: HC

December 04, 2007 21:03 IST

The Delhi high court has held that a person cannot be denied information under the Right to Information Act merely on the ground that an investigation is pending in a case and that the public authorities have to explain to the applicant how sharing the information would hamper the probe.

"The mere existence of an investigation process cannot be a ground for refusal of information and the authority withholding information must show satisfactory reasons as to why the release of such information would hamper the investigation process," Justice S Ravinder Bhat said.

"Such reasons should be relevant, and the opinion of the process being hampered should be reasonable and based on material," the court said while emphasising that the Act which was akin to welfare measures should be liberally interpreted.

The court passed the order on a petition of Bhagat Singh who was denied information on the earnings of his wife, with whom he has a discord, by the Income-Tax department on the ground that the matter was being investigated.

Singh, who was accused by his wife Saroj Nimal of taking a dowry of Rs 10 lakh from her, had filed a complaint in the I-T department against his wife for tax evasion in order to get details of her wife's earning.

Singh filed a request with the I-T department for investigation of his wife's sources of income in view of the fact that she was a primary teacher and she had alleged paying him Rs 10 lakh as dowry, something which seemed unlikely with her limited source of income.

After some time, he sought information from the department under the RTI Act about the details of preliminary inquiry which was refused by officials on the ground of pending information.

Directing the department to provide all the details on the preliminary inquiry, the court said, "The order of Community Information Centre and the department do not reflect any reasons why the investigation process would be hampered."

Another RTI Judgement

1 Central Information Commission

Appeal No.35/IC(A)/ 06
F. No.CIC/MA/A/ 2006/00108
Dated, the 8th May, 2006

Name of the Appellant: Sh. Bhagat Singh, House No.5879, Block No.4,
Street No.5, Dev Nagar, Karol Bagh,
New Delhi – 110 005.

Name of the Public Authority : Director General of Income Tax (Investigation) ,
Department of Revenue, Ministry of Finance, 3rd floor, ARA Center, E-2 Jhandewalan Extension,New Delhi.
DECISION
Grounds of Appeal:
The appellant had filed a complaint dated 24.9.2003 against Smt Saroj Nimal,his wife, regarding Tax Evasion on Rs.10 lakhs to the Department of Income Tax (Investigation) . On 10.11.2005 the appellant filed an application under RTI Act asking for the details of the action taken by the Department of Income Tax on the Tax Evasion Petition (TEP) filed by him. The CPIO vide his letter dated 10.1.2006 informed the appellant that the information could not be made available as it was exempt u/s 8 (1)(j), being personal information, the disclosure of which has no relationship to any public activity or interest. The appellant filed his first appeal on January 21, 2006 to the Appellate Authority, which upheld the decision of the CPIO vide his order dated 3.2.2006.
The appellate authority has observed that the appellant was having a personal dispute with the complainee and the complaint made to the Department of Income Tax was out of personal grievance. The appellant’s interest in the information sought was purely of a personal nature and, therefore, the information sought has no relationship with any public activity or interest .
The appellant has, in his appeal to the Commission, stated that he has been falsely implicated in a dowry case by Smt. Saroj Nimal, in which she has accused that an amount of more than Rs.10 lakhs was spent by her on her second marriage with the appellant. A criminal case against the appellant is pending on the basis of the complaint by Smt. Saroj Nimal. The appellant has, therefore, questioned the basis of her dowry complaint by seeking evidence from Investigation Wing of Department of Income Tax on sources of income and assets acquired, which has a direct bearing on the capacity of Smt. Saroj Nimal to pay the amount of dowry mentioned above. The appellant has also mentioned that the sources of income and declared assets and 2 expenditure of Smt. Saroj Nimal are not in proportionate to the known or declared sources of income by her. The appellant, therefore, requested the CPIO to provide him with the details of investigations made by the Directorate of Income Tax (Investigation) on TEP filed by him.

Commission’s Decision:
The appellant has mentioned the reason, as above, for seeking information on the Tax Evasion Petition (TEP) filed by him against his wife. The aspects of strained human relations that may become the reason for seeking information is out of the purview of our mandate. However, the public actions, irrespective of the cause of such actions, and disclosure of its outcome, fall under the domain of RTI Act. The action taken on TEP has to be examined accordingly.

On the issue of progress report on TEP, it has been observed that: “Investigations of the complaint on tax evasion by the IT department is a part of the process of identifying the offenders and assessing the extent of tax evasion by them. Until the nature of offence is duly examined and thoroughly investigated and necessary action is taken under the relevant provisions of tax laws,the disclosure of investigation report on tax evasion is barred u/s 8(1) (h).
Needless to say, the Department of Income Tax is expected to conduct investigations fairly and objectively, and that in a transparent manner, so that the relevant investigation report could be made public, soon after the taxes due from the offenders are recovered”. (Ref. Appeal No.34/IC(A)/ 06 dated 4th May 2006)

As the investigations on TEP has been conducted by DIT (Inv.), the relevant report is the outcome of public action, which needs to be disclosed.

This, therefore, cannot be exempted u/s 8(1)(j) as interpreted by the appellate authority.

Accordingly, DIT (Investigation) is directed to disclose the report as per the provision u/s 10 (1) & (2), after the entire process of investigation and tax recovery,
if any, is complete in every respect.
The appeal is accordingly disposed off.
Sd/-
(Prof. M.M. Ansari)
Information Commissioner
Authenticated true copy: (Munish Kumar) Assistant Registrar
3 Cc:
1. Sh. Bhagat Singh, House No.5879, Block No.4, Street No.5, Dev Nagar, Karol Bagh, New Delhi – 110 005.
2. Sh. S.S. Gandhi, Director General of Income Tax (Investigation) ,Department
of Revenue, Ministry of Finance, 3rd floor, ARA Center, E-2 Jhandewalan Extension, New Delhi.

Ancestral property

source:

1. http://sbn-caselaw.blogspot.com/2007/05/cases-on-sale-of-immoveable-property.html
   
2. http://sbn-caselaw.blogspot.com/2007/06/case-law-on-properties-of-joint-family.html
   

The mere fact that the properties were not separately entered by the coparcener in the book of account or that he did not maintain a separate account of earnings from these properties would not deprive the properties of their character of self acquired properties. AIR 1976 SC 1715.



Where ancestral property which is sold in execution of decree against the karta is subsequently acquired by a coparcener with the aid of his own funds, the property would be treated as the self acquired property of the co-parcener. Revappa case AIR 1960 Mys 97.


The burden of proving that any particular property is joint family property is on person who on first instance claims it as so. AIR 1960 SC 335. Only after the possession of adequate nucleus is shown, the onus shifts on to the person who claims the property as self acquired, affirmatively to make out that the property was acquired without any aid from the joint family estate. AIR 1969 SC 1076. One of the tests in determination of the adequacy of the nucleus is the income which yields. AIR 1984 SC 1171.



Where the manager of HUF claims that what is acquired is his separate property he should prove that he acquired it with his separate funds. AIR 1961 SC 1268, AIR 1969 SC 1076. Where there is an acquisition by the manager in his own name and there is no independent source of income, the presumption arises that the new acquisition was joint family property. AIR 1954 SC 379, AIR 1959 SC 906.



If the admissions are made by a member, then the onus shifts on him to prove that what he admitted is not true. AIR 1961 SC 1268.

The principle of Mitakshara Law that sons have independent co-parcenary rights in the ancestral estate and that father is subject to their control in he alienation of family property has been almost destroyed by the principle which has been established by the decisions that sons cannot setup their rights against their fathers alienation for an antecedent debt or against his creditors remedies for their debts, if not tainted with immorality, though not incurred for the family necessity or benefit. AIR 1952 SC 170. The concurrence of all the adult members is conclusive presumption of law. AIR 1951 Mys 38.FB.

The settled law through decisions of Privy council and various High courts is that “ A sale or mortgage of family property by the managing member is valid on the ground of justifying family necessity where it is: (a) For the payment of decree debts and other debts binding on the family. (b) To pay off the claims of Govt on account of Land Revenue, cesses, taxes and other dues. (c) For the payment of rents due to the landlord or the payment of decrees for arrears of rent obtained by land lord against family. (d) For the maintenance of members of the family. (e) For the purpose of defraying the expenses of the first marriage of the co-parcener and of daughters born in the family. (f) For the expenses of the necessary family ceremonies including funeral and annual shradha. (g) For the expenses of necessary litigation in connection with the recovery or protection of the joint estate or the establishment of adoption of his minor son. (h) For the expenses of defending the head of the family or any member against a serious criminal charge. (i) For the purpose of carrying on an ancestral trade or business. (j) To raise money to avert a sale or destruction of the whole or any part of the family property. (k) For the expenses of necessary repairs to the family residential house or family properties and for the protection of fields and lands belonging to the family from floods etc.,

Managers discretion regarding legal necessity or benefit of the estate can be subjected to judicial review. AIR 1964 SC 1385.

It is not open for a coparcener to sue for injunction restraining the manager from alienating on the ground that it is not for legal necessity or benefit. B.C.Ray, Justice however observed that injunction may be granted in case of waste or ouster. Sunil kumar case: AIR 1988 SC 576.

Gift by a manager even of a small extent of Joint family property to a relative out of love and affection is void as it is not a gift for pious purposes ( i.e religious and charitable purposes ) within the meaning of that expression in Hindu Law. Guramma v/s Mallappa AIR 1964 SC 510. see also AIR 1967 SC 569. A gift to a concubine or stranger is void. AIR 1980 SC 253.

In Krishnamurthy v/s Abdul khadar case AIR 1956 Mys 14 Where the property is acquired by the managing member and all the members of the family are in possession of the family property, it could very well be presumed that the new acquisition is family property.

Hindu Law:- Husband, wife and children living together constitute joint family. Property acquired by members of such joint family is presumed to be joint family property or coparcenary property not withstanding fact that it was acquired without the aid of ancestral nucleus, unless contrary is proved. Parties by their conduct and treatment of property in their hands, can impress self acquired property with character of joint family property with character of joint family property. Krishnamurthy case before KHC reported in 2005(3) KarLJ 420.

Property Transfer

1. A transaction would be a sale only if the entire consideration is money. — P.R. Srinivasan v The Corporation of the City of Bangalore, 1957 Mys. L.J. 418 : ILR 1957 Mys. 167.


2. Incorrect recital regarding consideration by itself does not lead to an inference that intention of parties was to convey title only on payment of consideration, or price can be promised or paid at a later date also — Explained. — G. Hampamma v K.S. Kalingappa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.



3. Dower due to a Muslim wife from her husband is valid consideration to support a sale in favour or the wife in payment of the dower. — Union of India v K. Mohammed Hussain, 1966(1) Mys. L.J. 279.



4. Muhammadan Law — Hiba-bil-iwaz — Gift for consideration is no gift but sale — Transfer of property by Muhammadan husband to his wife in settlement of her claim of mahr or dower debt is sale and not hiba or gift — If property so transferred is immovable property of value of one hundred rupees or upwards, title to property can be conveyed only by registered instrument, and not by mere oral agreement followed by delivery of possession — Where Muhammadan wife was put in possession of immovable property by her husband in settlement of his dower debt, and transfer was not effected by registered instrument, but only by oral agreement, there is no conveyance of title in favour of wife, and consequently sale effected by wife subsequently to third party is invalid. Held: A gift given in lieu of mahr, if not registered within the meaning of Section 17 of the Registration Act, such a gift is invalid in the eye of law. — Smt. Marembi and Others v Umar sab and Another, 1998(4) Kar. L.J. 643.



5. Oral sale of immovable properties over Rs. 100/- in value is of no effect and cannot be specifically enforced. — Mallangowda and Others v Gavisiddangowda, 1959 Mys. L.J. 261 : ILR 1958 Mys. 746 : AIR 1959 Mys. 194.





6. The fact that under Section 54 of the Transfer of Property Act, a sale of property of the value of less than Rs. 100 could be effected by mere delivery of possession does not mean that when parties choose to write out an instrument of sale, such an instrument need not be registered and the unregistered document cannot be used to make out the character of the possession. Section 49 of the Registration Act and Section 54 of the Transfer of Property Act prohibit such use. The vendee can prove by independent evidence that he is in possession of the property, which formerly belonged to somebody else, and that his possession can be traced to delivery of possession by that other person pursuant to a transaction of sale. The benami nature of a transaction or that the real title vests in the claimant has to be proved by evidence a acceptable to a Court of law. Where the documents relating to the property are inadmissible in evidence, custody of those documents by the claimant cannot have any value. In a case where the circumstances and arguments relied upon by the claimant are equally available to the alleged benamidar, the only safe course for the Court is to give effect to documents relating to the property which are registered as required by law. — K. Thimmiah v B.H. Nanjappa, 1965(1) Mys. L.J. 44.






7. RIGHT OF RECONVEYANCE Where the right to get a reconveyance was personal to the promisee, it is a personal right and cannot be transferred. — Thippaiah v Mallamma, ILR 1973 Mys. 738.






8. ABSENCE OF PROOF OF PAYMENT OF SALE CONSIDERATION — SALE NOT INVALID It is well-settled principle of law that a deed of transfer of immovable property whether by sale or mortgage which has been executed according to law and has been registered, becomes operative to pass on the title and the property from transferor to the transferee, namely, from the vendor to the vendee or the like, and further even if in a deed, where, it is mentioned that consideration expressed in the conveyance has been paid, but, as a matter of fact, it has been found that it has not been paid, does not render the transaction to be void for want of consideration. Once the transferring of immovable property has been done by a registered document, transaction becomes complete and effective and the passing of title or interest is not postponed, even till the future date of payment, until and unless there is an express covenant or term to that effect, in the deed, agreed between the parties. If the consideration has not been paid, then it is always open to the vendor to realise the consideration by legal means. The deed in the present case does not show by any of its terms that the passing of interest or title in the property had been postponed, instead, it is provided that vendor by this deed transfers and conveys the absolute ownership of the property. So, the deed unambiguously appears to be a sale deed. This deed does neither contain any term in writing in it to indicate that the property transferred is a security and the transfer of interest thereunder is suspended, nor does it provide that after the repayment of the alleged loan, the property will stand or be reverted or be reconveyed. No such term is contained therein. — Dr. ]acob Ijjzarus Chelly v Dokka Samuel, 1995(5) Kaj. L.J. 692A.




9. Consideration need not be solely money consideration though in an agreement, sale price is the main consideration — If there are other considerations also by way of reciprocal promise then a party chosing to enforce the contract cannot dissect the same into two parts, namely, one which is favourable to him and the other which is unfavourable/inconvenient to him — merely becasue definition of sale is restricted to payment of prices the argument that the other consideration cannot be considered as part of the agreement held to be not acceptable. — Indira Rai v Pamshumm Kallappa Hande, ILR1988 Kar. 1307.





10. HOUSE PROPERTY WITH 'COMPOUND' According to dictionary meaning, compound is an enclosed space with whatever buildings there are on it. Since it is enclosed there is little point in speaking of a compound wall. In the instant case, the sale deed describes the property in the schedule as house property with compound, etc. Therefore, it is clear that the property sold is with compound which means "compound wall". Compound by itself is used to refer to the wall. Therefore, absence of the word "wall" after the house property with compound in the schedule cannot be made much of. In cities sometimes all the four walls of the compound may not be owned by the owner of the house which is enclosed with a compound. But when the property sold under a sale deed is described as house property with compound and if one takes the dictionary meaning of the word "compound", no further explanation is needed to clarify that the house property and the enclosing compound wall are together sold under the sale deed. It is not open to interpret that the walls of the compound do not belong to the vendor. — Devikarani v Venkatesha Sastry, 1994(5) Kar. L.J. 99A.




11. Sale of immovable property — Execution and registration of sale deed — Plea that consideration is not paid the vendee not put in actual 'possession — Remedy — Non- payment of consideration by itself does not render the sale imperfect or invalid; remedy to vendor is for recovery of the amounts and not for declaration of title and possession — If actual possession not delivered to vendee, open to vendee to sue for possession — Explained. — Sint. Therojamnia & Another v D.H. Sadashivaiah, 1990(3) Kar. L.J. 504.



12. Future payment of consideration does not arrest passing of title if instrument registered — Title gets conveyed as soon as instrument with stipulation of consideration is registered — Non-delivery of possession does not affect conveyance of title — Delivery of possession not , essential ingredient — Right to possession incidental to right of ownership -Conveyance of title if dependent upon passing of consideration, passing of title deferred till payment of consideration — Explained. — G. Hampamma v K.b.Kalingapa and Others, 1989(2) Kar. L.J. 523 : ILR 1989 Kar. 2764.



13. The plaintiff had entered into the transaction in question in order to liquidate the loan which he had taken from the defendant-Bank. The document also discloses that the transfer was made for a consideration which could have been best fetched. The plaintiff in the document also admits that Rs. 3,000/-which was over and above the debt of the Bank was received by him in cash. So far as the provision for reconveyance is concerned it was agreed that if the plaintiff repays Rs. 13,000/- along with all the expenses which the respondent-Bank had incurred by way of insurance charges, taxes, repairs, etc., within 5 years, then the respondent-Bank will be obliged to reconvey the property in his favour. The transaction in question was entered into between the parties not in order to establish the relationship of debtor and creditor but was entered only with the sole purpose of liquidating the existing loan. The document is in fact a document of conveyance or sale with a condition to repurchase. — Basappa Shivalingappa Revadigar (dead) by LRs. v Karnataka Bank Ltd., Kundgol, Dhanvad, 1994(5) Kar. L.J. 463.


14. If a sale property of less than Rs. 100 in value is effected by delivery of possession, that sale is as provided by Section 54 of the Transfer of Property Act, a valid sale. It is not rendered invalid by reason of the execution of an unregistered instrument of sale recording it. — Govindappa and Another v Vishivanath alias Eshwarayya, 1961 Mys. L.J. 528 : ILR 1961 Mys. 942.








15. Title to property covered by a decree for specific performance passes only on the execution and registration of the sale deed and not from the date of the decree or the date of the deposit of the purchase money.In the absence of some provision in the sale deed to the contrary, title passes with the execution and registration of the sale deed. A sale deed which is executed by the Court in pursuance of a decree for specific performance is a transfer by the Court on behalf of the judgment-debtor and the sale deed so executed has got all the characteristics of a transfer inter vivos. — Mrs. Christine Pais v K. Ugappa Shetty, 1965(2) Mys. L.J. 692.




16. Municipal Property Register is not title deed. Land Revenue Patta is not. — Hazarat Asmruddin Durga v Hussein Ktian Saheb, 1966(1) Mys. L.J. 772.






17. Where the defendant purported to sell certain sites and convey title therein to the plaintiffs and it was not disclosed in the sale deeds that the Sy. No. in which the sites were situate had vested in the Government under Section 3 of the Inams Abolition Act and that the only right the vendor had in those sites was to apply for being registered as occupant thereof and that he was transferring only such right to the plaintiffs. Held, there was a breach of the duty on the part of the vendor under Section 55(l)(a) of the Transfer of Property Act and the plaintiffs were entitled to avoid the sale and claim refund of the price paid by them. — Hanumappa v Munithimmiah, 1974(1) Kar. L.J. Sh. N. 298.


18. In a suit for damages for breach of the implied warranty under Section 55(2) of the Transfer of Property Act, the non-production of the sale deed is immaterial, where no contract to the contrary is pleaded. Even if the vendee knew the defect in the title of the vendor, still he can avail himself of the statutory warranty. In such a suit, the cause of action arises on the date of dispossession and not on the date of the sale deed. — Basappa v Kodliah, 1958 Mys. L.J. 491: AIR 1959 Mys. 46 : ILR1958 Mys. 237.



19. Contract of sale — Vendee's revocation of — Vendor's defective title as ground for — Such ground is available to vendee to revoke contract even if he had prior knowledge of defective title — Even where contract of sale is completed, vendee is entitled to cancel contract and seek refund of purchase money, as statutory provision deems implied contract for title — Where contract is only at executory stage, vendee cannot be compelled to purchase, on ground that he was aware of defective title at time of entering into contract of sale. The provisions of Section 55(2) of the Transfer of Property Act deem implied contract for title and even in cases where there is a completed contract of sale, the purchaser is entitled to cancel the contract and seek the refund of purchase money. .... It is also open to the parties to waive the implied warrantee of title by a contract to the contrary. However, in a contract where it is only at an executory stage, it would not be proper in law to force upon the purchaser to purchase the property on the ground that he was aware of the defective or imperfect title at the time of agreement of sale. It does not prevent in law for the purchaser to revise his opinion before the contract is concluded however with a qualified liability on the purchaser to compensate any loss or damages which the vendor has sustained in the course of such transaction for which the purchaser has equally contributed by his folly. — R.L Pinto and Another v F.F. Menzes and Another, 2001(3) Kar. L.J. 571C (DB).


20. Section 55(4)(a) has no application to a case where in respect of the transfer of property the prospective buyer is put in possession of the property. Such a case is governed by the equitable principle on the basis of an implied agreement arising out of taking over possession without paying the consideration amount. Where immediately after agreement the prospective buyer is put in possession, the vendor is entitled to interest on the unpaid purchase money. The circumstance that the vendor could not remove the doubts over his title cannot be such a conduct on his part, which suffices to relive the purchaser from the liability to pay interest wholly or in part. — Malkajappa Bhimappa Bennur v Bhimappa Kashappa Parasannavar, 1965(2) Mys. L.J. 229.



21. Section 55(4)(a) is based upon an established rule of law that it is the part of the right of the owner of the property to receive rent and profits of the property owned and that right continues until the title or ownership is lost. As the agreement of sale does not confer any title or transfer any title in the suit schedule property agreed to be sold, and the title continues to vest with the owner/vendor of the property agreed to be sold, evenafter the agreement of sale, it is governed by Section 55(4}(a) of the T.P. Act. — B.R. Midani v Dr. A.B. Asivathanarayana and Others, 1992(3) Kar. L.J. 207B (DB) : ILR 1992 Kar. 2224 (DB).




22. Mere agreement of sale does not have the effect of creating or vesting title in the plaintiff of the suit property. As per Section 55(4)(a) of the Transfer of Property Act, the seller is entitled to the rent and profits of the property till the ownership thereof passes to the buyer. — G.M. Chinnaswamy v Smt. P.K. Prqfulla, 1992(3) Kar. LJ/186B (DB) : ILR 1992 Kar. 2294 (DB).



CASE LAW ON GIFT OF IMMOVEABLE PROPERTIES


ACCEPTANCE OF GIFT BY DONEE — INFERENCE.

There is nothing in Section 122 of the Transfer of Property Act to show that acceptance of a gift should be express. Where the donee knew about the gift, being present at the time of registration of the gift deed and did not object to it, it can safely be inferred that the donee accepted the gift. — Lingaiah v Siddamma and Others, 1982(1) Kar. L.J. 34.


CONDITIONS IN GIFT DEED

If donor has voluntarily executed the deed and donee has accepted during his lifetime, any condition imposed on donee for full and proper enjoyment of property gifted becomes void while validity of gift deed remains intact — not control passing of title in favour of donee — D. Venkatesha Cowda v State of Kamataka and Others, 1990(1) Kar. L.J. 242.

Recital as to maintenance in gift deed in absence of specific recital reserving rights to revocation on failure to perform condition mentioned in gift deed — Held, cannot have the effect of making the gift a conditional gift enabling donor to revoke the same on failure to perform such condition. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

Recital as to maintenance in a gift deed in the absence of specific recital reserving right to revocation on failure to perform condition mentioned therein — Held, not a conditional gift deed — Only remedy available to the donor is to enforce the condition in a Court of law — Donor cannot unilaterally cancel the gift deed. — Narayanamma and Another v Papanna, 1988(1) Kar. L.J. 80 : ILR 1987 Kar. 3892.

The super adding of a condition to a gift is permissible in law under Section 31 of the Act and acceptance of a gift by the donee is necessary for rendering the gift valid in law, therefore, when a donee accepts a gift which is burdened by a condition that a superadded, it is nothing but a donee agreeing to that condition and therefore, the consequences provided in Section 126 of the Transfer of Property Act will have to follow — Defeasance clause would not always affect the rule of perpetuity — It depends on facts and circumstances of each case. — Govindamma v Secretary, Municipal first Grade College, ILR 1986 Kar. 1175.



GIFT — DELIVERY OF POSSESSION.
Under the Transfer of Property Act, it is not necessary that possession of the property gifted must be delivered forthwith. Thus, where under a document the right, title and interest in the properties were vested in the donee, he becomes absolute owner, though delivery of possession is postponed, and hence the document is not a will. — Parvati and Another v Mrutyunjaya Gurupadayya and Another, 1983(1) Kar. L.J. 14.



REGISTERED GIFT DEED — DENIAL OF EXECUTION

Registered gift deed — Denial of execution of, by person by whom it purports to have been executed — Burden of proof of execution is on party relying upon deed and burden has to be discharged by calling at least one of attesting witnesses to prove execution — Where burden has not been discharged, deed cannot be used as evidence of gift. Held: Section 123 of the Transfer of Property Act, requires the specific mode in the matter of execution of gift of immoveable property. That gift of immoveable property can be made only by the execution of the registered deed attested by two witnesses. .... The law prescribes the specific mode that it must be effected by a registered instrument or deed signed by or on behalf of the donor and attested by at least two witnesses. Section 68 of the Indian Evidence Act, 1972 required the production of at least one of the attesting witness to prove its execution. Compliance with the provisions of Section 68 or 69 of the Indian Evidence Act is necessary to make gift deed admissible in evidence. .... None of the attesting witnesses of the deed has been examined in this case to prove the execution thereof. The deed dated 29-11-1960 could not be used as evidence and its execution cannot be said to have been proved. — Smt. Flora Margaret v A. Larwence, 2000(6) Kar. LJ. 27B.


MODE OF TRANSFER

Gift — Transfer of property under — Mode of transfer — Gift deed may provide for transfer of existing property to donee at future date and/or on happening of certain events — Intention of donor to be gathered by reading deed as a whole — No word thereof to be ignored as meaningless — Effect to be given to every part of deed — Where gift deed in favour of two minor donees jointly concludes with words "you shall enjoy property and live as you wish after you have attained majority and got married", the words to be interpreted that gift would take effect oniy when donees marry on attaining majority — Property not conveyed to donees as marriage between them did not take place. Held: A reading of Section 123 along with Sections 122 and 5 of the Act, it appears to me that in the matter of gift also, transfer or conveyance of the property may be provided to take place in present or in future. The gift deed may also provide that the transfer may be effective on the happening of certain conditions in future. In other words, person making the gift may provide that the interest in gifted property will stand conveyed or transferred as per deed either in present or in future. In the deed, it has to be looked into to ascertain the intention of the parties, whether the transfer has been effected in present or in future, Expression lastly used in the document, "you shall enjoy the above mentioned property and live, as you wish after you attained majority and got married". These expressions have to be taken as controlled by the expression used earlier that the intention of the author is that the right and title as an absolute owner of the property should pass on to the donees on the fulfilment of those conditions. That as the document appears to have been executed with the object of the marriage and the effect of it is that donees could get absolute ownership under the deed on the fulfilment, of both the conditions, namely, attaining the age of majority by both of them and they getting married and until and unless this had so happened, the property had to remain in possession of the husband of the donor. This action shows that till the happening of the condition, namely, the attaining the age of majority by the two donees and their getting married, the property had to remain in possession of the husband of the donor, so, the property had not been transferred to the donees, the transfer could take effect only on the donees attaining majority and getting married. That as the marriage did not takes place in the present case and the plaintiff did not marry the defendant's daughter, deed did not become effective to transfer the title of the property to the plaintiff and defendant 1 and the title of the property re-examined with the donor. Mere execution of the deed of cancellation at subsequent stage will not lead to the conclusion that the gift deed had been acted upon. The deed cancelling the gift deed might have been executed as a matter of mere precaution and for safety protection. — Hutchegowda v Smt. Jayamma and Another, 1996(2) Kar, L.J. 751.


ATTESTATION OF GIFT DEED

In the present case, the gift deed in question has been registered and the necessary endorsements are made by the Sub-Registrar. P.W. 2 has sworn that he had attested the deed. But he has nowhere stated in his evidence that the executrix namely, Gangavva affixed her signature or mark to the gift deed in his presence or acknowledged to him, that she had affixed her signature or mark to the gift deed. Therefore, his evidence does not satisfy the ingredients of definition 'attested'. Hence, it will have to be held that attestation by P.W. 2 and another person as required by law, has not been proved. Therefore, though Gangavva appears to have admitted execution of the gift deed as is seen from the endorsement of the Sub-Registrar, it will have to be held that the gift deed, though registered, does not satisfy the ingredients of Section 123 main part. When that is so, no title in law can be said to have passed from Gangavva to the plaintiffs, even assuming that Gangavva did have such title to transfer. — Anant Somappa Pattar v Kalappa Devendrappa Yarakad, 1987(2) Kar. L.J. Sh. N. 177: ILR 1985 Kar. 1432.


Gift - proof of attestation. Where the attestor called as witness says he does not know who else attested and there is no other evidence, held, the gift deed was not proved as required by law. — Kempamma v Honnamma, 1979(1) Kar. LJ. Sh. N. 85.

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Imp Judgements to fight No - maintainence case

Here are a collection which will help you.
regards

Citations.
1. Bhagwan Dutt Vs.Kamala Devi,AIR1975SC83
2. Deb Narayan Halder Vs.Smt.Anshree Halder,2003( 4)Crimes74( SC)
3. Bheekha Ram Vs. Goma Devi, !999 CRI.L.J.1789
4. Hansubai Vs. Balakrishna, 1981CriLJ110
5. Teja Singh Vs.Chhoto,1981 CriLJ1467
6. Ila Vipin Pandya Vs.Smita Ambalal Patel, AIR 2000 Bombay 345
7. Nirmala Devi Vs. Ved Praksh AIR 1993 Himachal Pradesh 1


8. Savitri Pandey Vs. Prem Chandra Pandey, ((2002) 2 SCC 73


9. Rathina Marie Prem Vs. Marcel Fernandes, 1997 CRI..L.J 2524
10. Kum.L.Usharani and othersVs. D.S.Lkshmaiah, 1993 CRI.L.J.982
11. Partha Pratim Basak Vs. Arundhati Basak, C.R.R.No.1653 of
2006, High Court of Calcutta
12.CASE NO.:
Appeal (civil) 6534-6536 of 1995

PETITIONER:
ADHYATMA BHATTAR ALWAR
Vs.
RESPONDENT:
ADHYATMA BHATTAR SRI DEVI
DATE OF JUDGMENT: 06/11/2001
BENCH:
D.P. Mohapatra & Doraiswamy Raju

Imp Judgements to fight No - maintainence case

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1.All maintenance laws are made before legaislation on the female
copercenary rightwas legislated in 2005.Hence, the maintenanance
laws need a fresh look. The judges dismiss such plea with the
proposition that the inherited property is not yeilding income. Now
the question is-Should a person be rewarded for not utilising a
property?

2. Please compile the rulings in the following judgments
Citations.
1. Bhagwan Dutt Vs.Kamala Devi,AIR1975SC83
2. Deb Narayan Halder Vs.Smt.Anshree Halder,2003( 4)Crimes74( SC)
3. Bheekha Ram Vs. Goma Devi, !999 CRI.L.J.1789
4. Hansubai Vs. Balakrishna, 1981CriLJ110
5. Teja Singh Vs.Chhoto,1981 CriLJ1467
6. Ila Vipin Pandya Vs.Smita Ambalal Patel, AIR 2000 Bombay 345
7. Nirmala Devi Vs. Ved Praksh AIR 1993 Himachal Pradesh 1

8. Savitri Pandey Vs. Prem Chandra Pandey, ((2002) 2 SCC 73

9. Rathina Marie Prem Vs. Marcel Fernandes, 1997 CRI..L.J 2524
10. Kum.L.Usharani and othersVs. D.S.Lkshmaiah, 1993 CRI.L.J.982
11. Partha Pratim Basak Vs. Arundhati Basak, C.R.R.No.1653 of
2006, High Court of Calcutta
12.CASE NO.:
Appeal (civil) 6534-6536 of 1995

PETITIONER:
ADHYATMA BHATTAR ALWAR
Vs.
RESPONDENT:
ADHYATMA BHATTAR SRI DEVI
DATE OF JUDGMENT: 06/11/2001
BENCH:
D.P. Mohapatra & Doraiswamy Raju
(Supreme Court)

3. See the Neeraj aggarwal's case
i)unclean hands-not entitled
ii)Qualified idle-not entitled.

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Refer my HC PETITION too, its posted on
http://mynation.net/abio/

check refered other judgements too

There are judgements of Punjab &Haryana High Court whwich have set aside such complaints stating that the complaints are vague and general because they do not contain exact details of time,date, effect of torture and who committed the same;misappropriati on of dowry articles,which item was entrusted to whom?If details of judgements required, let me know.

Here are the judgements of PUNJAB AND HARYANA HIGH COURT that might help;
1.Criminal Misc. No 2126 of 1989 Decided on 7-2 -1991,Harbans Lal and ors VS State of Punjab.

2. Criminal Misc No10381-M of1991 Decided on 18.12.1998,Anil Kumar VS Rita Kumari.

3.Criminal Misc No 3641-M of 1990 Decided on 8-4-1991,Smt. Hukami Devi and Ors VS The State of Haryana and anr. (IMPORTANT JUDGEMENT).

4.Criminal Misc No 2304-M of 1991 Decided on 2-2-1993,Gurdev Singh VS Smt Nachhattar Kaur alias Mandip Kaur.

5.Criminal Misc No 12577-M of 1991 Decide On 19-8-1992,Gurmeet Singh and Ors VS State Of Haryana and anr.

6.Criminal Misc No 8021(Petition No NOT legible,pls CHECK)-M of 1990 Decided on 12-4-1991,Angrez Singh and ors VS State of Punjab and ors.

THE ABOVE JUDGEMENTS GENERALLY STATE THAT:

1. IN ABSENCE OF THE DETAILS OF WHICH ITEMS OF DOWRY WERE ENTRUSTED TO WHICH OF THE ACCUSED,IPC 406,MAY NOT BE APPLICABLE;

2.DETAILS OF DATE&TIME OF THE TORTUROUS ACT AND WHAT EFFECT IT CAUSED ARE REQUIRED FOR APPLICABILITY OF IPC 498A.

Supreme Court Judgement, Civil Appeal No 5803 of 1997(arising out of SLP(C)No. 396 of 1997 ) Decide on 27.8.1997,Smt Jasbir Kaur Sehgal Vs District Judge Dehradun and others,HAS LEVIED A MAINTAINENCE OF Rs 5000/- PER MONTH TO THE WIFE ON AN ESTIMATED ANNUAL INCOME OF Rs two lacs forty thousand OF THE HUSBAND;You may ask the court, if applicable to levy the maintainence proportionately as per you income;