Whether appointment of an advocate as a Government Counsel is an appointment in Government service

The ‘appointment of any legal practitioner as a District Government Counsel is only professional engagement,’ it is difficult to appreciate the submission for which sustenance is sought from the provisions contained in the same Manual. The appointment being for a fixed term and requiring express renewal in the manner provided in the Manual, there is no basis to contend that it is not a professional engagement of a legal practitioner but appointment to post in Government service which continues till attaining the age of superannuation. Continue reading

Rithwik Energy Generation Pvt. Ltd. Vs. Bangalore Electricity Supply Company Ltd. & Ors. Etc.[SC 2018 FEBRUARY]

KEYWORDS:- Power Purchase Agreement- NECESSARY ISSUE-

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DATE:-February 06, 2018-

If the issue was “necessary” to be decided for adjudicating on the principal issue, and was decided, it would be treated as directly and substantially in issue as the judgment was, in fact, based upon such a decision. The other principle is that the issue must be decided on the facts of each case, the material test to be applied being whether the Court considers the adjudication of the said issue material and essential for its decision.

ACTS:- Electricity Act.

SUPREME COURT OF INDIA

Rithwik Energy Generation Pvt. Ltd. Vs. Bangalore Electricity Supply Company Ltd. & Ors. Etc.

[Civil Appeal Nos. 5084-5085 of 2015]

R.F. Nariman, J.

1. The present appeals are filed by the appellant – a Generating Company, which entered into an Agreement dated 26.09.2006, with the Government of Karnataka for setting up a 24.75 MW mini hydro-electric power plant in a certain District in Karnataka. On 03.05.2007, the appellant and Respondent No.1 signed a Power Purchase Agreement (for short ‘the PPA’). Pursuant to the Clauses of the PPA, Respondent No.1 sent the PPA to the State Commission for its approval. On 06.06.2007, the State Commission did not accord its approval to the PPA and returned the same on the ground that Respondent No.1’s quota of 10% under the Karnataka Regulations of 2004 had already been exhausted from other sources.

2. Meanwhile, on 26.07.2008, the appellant entered into another PPA with PTC India Limited for sale of electricity and sought the Commission’s approval for supply to PTC under the Open Access provisions of the Electricity Act. On 31.08.2009, the appellant filed O.P. No. 29 of 2009 before the State Commission seeking a declaration that no valid PPA subsisted between the appellant and Respondent No.1, as a result of which it was open to the appellant to enter into another PPA and supply electricity under the Open Access system.

3. On 23.12.2010, the State Commission dismissed the appellant’s O.P. holding that the return of the PPA did not tantamount to rejection, and this non-grant of approval, therefore, did not invalidate the PPA between the parties. An Appeal was preferred before the Appellate Tribunal, during the pendency of which a letter dated 05.05.2011 was sent by the appellant to Respondent No.1. As a great deal turns upon the effect of this letter, the relevant paragraphs are set out herein below:-

The letter begins with

“WITHOUT PREJUDICE” and has as its Subject – “Permission to sell Power to Third Parties”. The letter then goes on to state that on the assumption that the PPA is valid, which is pending appeal before the Appellate Tribunal, the appellant wishes to bring to the attention of Respondent No.1 three specific defaults in the obligations undertaken by Respondent No.1 under the PPA. The defaults related to default in making payments for the Power Bills within 15 days of submission; default in payment of interest; and default in opening a Letter of Credit.

The letter further goes on to state: “Thus, BESCOM defaulted in its financial and material obligations, that too for over a continuous period of three months. There, BESCOM shall permit, in terms of Article 9.2.2. of the disputed PPA, our Company to sell power from the Project to third parties and for entering into Wheeling and Banking Agreement with it. So we request you to confirm that you will permit us to sell the power to third to pay the applicable charges.”

4. On 21.10.2011, the Appellate Tribunal dismissed the appeal filed by the appellant. On the two issues that were raised before the State Commission, the Appellate Tribunal found in favour of Respondent No.1 and was in complete agreement with the findings of the State Commission. However, the Appellate Tribunal then went on to advert to an affidavit that was filed before the Appellate Tribunal seeking to bring on record certain subsequent events as being material for decision of the appeal. And these subsequent events were sought to be brought on record by the appellant itself.

After a contest on whether these events ought to be brought on record, Respondent No.1 stating that this is a new case not permissible in appeal, the Appellate Tribunal turned down the plea of Respondent No.1 and felt that it was important to examine the subsequent events on merits. It then referred to certain provisions of the PPA and, in particular, Clause 9.3.2 which deals with termination for default of Respondent No.1, and then went on to hold as follows:

“12.12. Thus, for termination of the PPA, in the event of payment default for a continuous period of three months, the appellant has to deliver a Default Notice to the second respondent in writing 5 calling upon it to remedy the same. After expiry of 30 days from delivery of notice unless the parties have agreed otherwise or the event of default has been remedied, the appellant can deliver a Termination Notice to the second respondent under intimation to the State Commission. Upon delivery of the Termination Notice, the PPA shall stand terminated.

Xxx xxx xxx

12.13 Admittedly, no notice to remedy the default or termination notice has been served by the appellant on the respondent distribution licensee, only a letter dated 5.5.2011 about payment default and seeking permission to third parties in terms of Article 9.2.2. was sent to the respondent distribution licensee on 19.5.2011 after the interim order of the Tribunal dated 18.5.2011″

5. On 11.05.2012, since according to the appellant, Respondent No.1 did not remedy the default in payment of interest despite the expiry of 30 days period from the date of the notice dated 05.05.2011 and also from the expiry of a further period of 30 days granted by the Appellate Tribunal, the appellant purported to terminate the PPA. The letter of 11.05.2012 specifically referred to and relied upon the notice 6 dated 05.05.2011 and referred to it in para 9 thereof as a default notice that was issued subsequent to which, defaults as mentioned therein, were not cured and that therefore, exercising their rights under Clause 9.3.2 of the PPA, a termination notice was then issued.

It needs only to be mentioned that on 29.05.2012, in reply to the “without prejudice” part of the 11.05.2012 notice to pay interest, in any case, within 30 days from the said notice, Respondent No.1 paid a sum of Rs. 3.22 lakhs as interest. On 14.08.2012, it also substituted the earlier Letter of Credit that was opened and opened a Letter of Credit for an amount that was in accordance with the PPA, as was contended by the appellant.

6. Thereafter, on 21.02.2013, Respondent No.1 filed O.P. No. 6 of 2013 before the State Commission for a declaration that the termination of the PPA by the appellant was invalid.

7. By an order dated 09.05.2013, the Central Commission first asked the petitioner i.e. the appellant herein to approach the State Commission for adjudication of the dispute regarding subsistence or otherwise of the PPA after the termination notice dated 11.05.2012.

8. On 17.10.2013, Respondent No.1’s O.P. No. 6 of 2013 was allowed by the State Commission, relying strongly on the observations of the Appellate Tribunal in its judgment dated 21.10.2011, which have been extracted above, to say that the notice dated 05.05.2011 was not a default notice or could not be said to be a default notice under Clause 9.3.2 of the PPA and that this being so, it is clear that the subsequent notice of termination based upon the 05.05.2011 notice being a default notice could not be said to be valid in law. It thus allowed the O.P. filed by Respondent No.1 and held the termination of the PPA to be invalid.

9. In appeals filed against both the 09.05.2013 order and the 17.10.2013 order, the Appellate Tribunal dismissed the appeals of the appellant, again relying upon the Appellate Tribunal’s judgment dated 21.10.2011 in stating that the alleged notice dated 05.05.2011, not being in conformity with Clause 9.3.2 of the PPA, could not be said to be a default notice and that, therefore, any termination notice issued thereafter is also invalid. It also ultimately found, as a matter of fact, that so far as the Letter of Credit was concerned, since the appellant had not gone to the State Commission to remedy the same, it did 8 not find any fault with the State Commission’s orders and ultimately after summarizing its findings, dismissed both the appeals.

10. Mr. Dhruv Mehta, learned Senior Advocate, appearing on behalf of the appellant has raised three points before us. According to him, the finding based on the letter of 05.05.2011 by the Appellate Tribunal in its judgment dated 21.10.2011 was not on a matter directly and substantially in issue, but being merely collateral, could not be said to be res judicata. He next argued that, in any case, the notice dated 05.05.2011 was a notice, which substantially conformed to Clause 9.3.2 of the PPA, and, therefore, ought to have been held as a default notice.

This being so, the termination notice dated 11.05.2012 was valid in law and, therefore, the judgments of the State Commission as well the Appellate Tribunal are incorrect on this score. He cited certain judgments, which will be dealt with by us. He also argued that despite the relevant period under the PPA having long elapsed, defaults continued and were remedied long after the period so stated.

11. Ms. Pratiksha Mishra, learned counsel appearing for the respondent(s), on the other hand, first argued that Mr. Mehta’s client ought to be estopped from taking the plea that there was no res judicata in the instant case, and it is the appellant itself that filed an affidavit before the Appellate Tribunal and called for a finding on subsequent events which, according to the appellant, was important for determination of the issue at hand. She also adverted to the relevant portions of the judgment of the Appellate Tribunal dated 21.10.2011, and stated that, in any case, it was correct in law. So far as the opening of the Letter of Credit was concerned, it was her case that a Letter of Credit was opened and there was, therefore, no default. Only the amount for which it was opened being lower than what the PPA required, when such default was pointed out, rectification followed and the Letter of Credit as it stands after 14.08.2012 is opened in accordance with the PPA.

12. Having heard the learned counsel appearing for the parties, we are of the view that there is no doubt whatsoever that the appellant itself invited the Appellate Tribunal to go into a subsequent event, which, according to it, was of extreme importance in deciding the appeal. This being the case, it is clear that, after contest, and after the Appellate Tribunal held in favour of the appellant that such subsequent event is indeed 10 important and will be decided by the Tribunal, and then suffering a finding which was found, on merits, to be against it, we are of the view that the appellant is clearly estopped from attempting to argue now that the very important issue raised by way of subsequent events according to the appellant itself should be held, as a matter of law, to be only a collateral issue and therefore, not res judicata.

13. In Pasupuleti Venkateswarlu vs. The Motor & General Traders, [1975] 3 S.C.R. 958, this Court adverted to the cautious taking into account of events that arise subsequent to the filing of a petition. Krishna Iyer, J., in the aforesaid decision, stated: “We feel the submissions devoid of substance.

First about the jurisdiction and propriety vis a vis circumstances which come into being subsequent to the commencement of the proceedings. It is basic to our processual jurisprudence that the right to relief must be judged to exist as on the date a suitor institutes the legal proceeding.

Equally clear is the principle that procedure is the handmaid and not the mistress of the judicial process. If a fact, arising after the lis has come to court and has a fundamental impact on the right to relief or the manner of moulding it, is brought diligently to the notice of the tribunal, it cannot blink at it or be blind to events which stultify or render inept the decretal remedy.

Equity justifies bending the rules of procedure, where no specific provision or fairplay is violated, with a view to promote substantial justice-subject, of course, to the absence of other disentitling factors or just circumstances. Nor can we contemplate any limitation on this power to take note of updated facts to confine it to the trial Court. If the litigation pends, the power exists, absent other special circumstances repelling resort to that course in law or justice. Rulings on this point are legion, even as situations for applications of this equitable rule are myraid.

We affirm the proposition that for making the right or remedy claimed by the party just and meaningful as also legally and factually in accord with the current realities, the court can, and in many cases must, take cautious cognizance of events and developments subsequent to the institution of the proceedings provided the rules of fairness to both sides are scrupulously obeyed.” It is clear therefore, that once a Court or Tribunal decides to  look into a subsequent event at the behest of any of the parties, the Court itself thinks that it is important to do so, otherwise it would not look into such subsequent event.

14. In Sajjadanashin Sayed Md. B.E. EDR. (D) by LRs. vs. Musa Dadabhai Ummer and Others, (2000) 3 SCC 350, one of the issues that arose for consideration was what exactly is an issue which is directly and substantially in issue, as opposed to being collaterally and incidentally in issue. After referring to various authorities, both English and American, this Court ultimately referred to and relied upon Mulla’s Civil Procedure Code (15th Edition) in which two tests were set out. One test is that if the issue was “necessary” to be decided for adjudicating on the principal issue, and was decided, it would be treated as directly and substantially in issue as the judgment was, in fact, based upon such a decision. The other principle is that the issue must be decided on the facts of each case, the material test to be applied being whether the Court considers the adjudication of the said issue material and essential for its decision.

15. As seen from the Appellate Tribunal’s judgment dated 21.10.2011, not only did the appellant considered the subsequent event as directly and substantially in issue for deciding the appeal, which incidentally was not opposed by Respondent No.1 on this ground but on the ground that it would be bringing in a new issue at the stage of appeal, but the Appellate Tribunal having turned down the Respondent No.1’s plea, and having examined subsequent events, it cannot but be said that the Appellate Tribunal itself considered the issue No.3 raised by it, based on subsequent events brought to its notice, as being directly and immediately in issue. On this ground also, therefore, we are of the view that, apart from the appellant being estopped in law from raising such a plea, the plea itself has no legs to stand down.

16. We now come to the other main plank of Mr. Mehta’s submission. Mr. Mehta read to us Clause 9.3.2 of the PPA and contended that the letter dated 05.05.2011 substantially complied with the requirements of the said clause and should be treated to be a notice of default under the said clause. To appreciate this plea, Clause 9.3.2 of the PPA needs to be set out:

“9.3.2 Termination for corporation’s Default: Upon the occurrence of an event of default as set out in sub-clause 9.2.2 above, Company may deliver a Default Notice to the Corporation in writing which shall specify in reasonable detail the Event of Default giving rise to the default notice, and calling upon the BESCOM to remedy the same. At the expiry of 30 (thirty) days from the delivery of this default notice and unless the Parties have agreed otherwise or the Event of Default giving rise to the Default Notice has been remedied, Company may deliver a Termination Notice to Corporation. Company may terminate this Agreement by delivering such a Termination Notice to Corporation and intimate the same to the Commission.

Upon delivery of the Termination Notice this Agreement shall stand terminated. Where a Default Notice has been issued with respect to an Event of Default which requires the co-operative of both BESCOM and the Company to remedy, BESCOM shall render all reasonable cooperation to enable the Event of Default to be remedied.” A reading of this clause would show that upon occurrence of an event of default, a default notice may be served to the Corporation in writing. The requirements of the aforesaid notice are two fold –

(1) to specify in reasonable detail the event of default giving rise to the notice, and

(2) calling upon Respondent No.1 to remedy the same within a period of 30 days from the delivery of the default notice unless the parties have agreed otherwise.

It is only then that the Company may deliver a termination notice to the Corporation.

17. On a perusal of the letter dated 05.05.2011, what is clear is that the letter speaks only of events of default, but does not call upon Respondent No.1 to remedy the same within the period specified. This, according to Mr. Mehta, is in any event substantial compliance with the aforesaid clause. We cannot agree. Both parts of Clause 9.3.2 are important – one specifying in reasonable detail the event of default and the second, calling upon Respondent No.1 to remedy the same within a period of 30 days.

It is also important to note that the parties may otherwise agree, in which case the Respondent No.1 may remedy the defaults mentioned in the notice either before or after the expiry of 30 days period laid down, showing that the parties considered that this part of Clause 9.3.2 is as important as the first part, for otherwise, a termination notice could, de hors the second part of Clause 9.3.2 have issued straight away without more. This being the case, we are unable 16 to agree with Mr. Mehta’s submission that there has been substantial compliance of Clause 9.3.2 of the PPA.

18. Mr. Mehta cited three judgments before us to persuade us that the letter dated 05.05.2011 substantially complied with Clause 9.3.2 of the PPA.

19. In Nani Gopal Biswas vs. The Municipality of Howrah, [1958 S.C.R. 774, this Court was concerned with a notice issued under Section 299 of the Calcutta Municipal Act, 1923. Since Section 300 of the Municipal Act was attracted to the facts of the case and not Section 299, this Court held that even though the notice may be headed as being under Section 299 of the Act, it would make no difference as, in substance, the effective part of the notice leaves no doubt in the minds of the parties concerned that the requisition is to remove an encroachment caused by a compound wall which is a structure which falls within Section 300.

This case is wholly distinguishable inasmuch as all that was required by Section 300 of the Calcutta Municipal Act was the fact that a compound wall was an encroachment. This was clearly stated in the notice, and the fact that it was stated to be under a wrong provision of law would, therefore, make no difference to the substance of the notice.

20. Similarly, in Thakur Pratap Singh vs. Shri Krishna Gupta and Others, [1955] 2 S.C.R. 1029, this Court dealt with the filling up of a nomination paper in order to stand for the office of President of a Municipal Committee. Here again, this Court held that the fact that the word “occupation” in the form was either struck out or left blank would make no difference since a man’s occupation is not one of the qualifications for the office of President.

It was, therefore, held that this part of the form was only directory, and is part of the description of the candidate, but does not go to the root of the matter, so long as there is enough material in the paper to enable him to be identified beyond doubt. This judgment again is wholly distinguishable on facts in that, as has been found by us above, the part of Clause 9.3.2 relating to calling upon Respondent No.1 to remedy defaults within a period of 30 days unless otherwise agreed is as important as the events of default that have been stated to have taken place. Substantial compliance, therefore, can be no answer to such a mandatory requirement.

21. It is unnecessary for us to pronounce on any further aspect, including the aspect of late payment and late opening of Letter of Credit. We are of the view that the Appellate Tribunal in the impugned judgment cannot be faulted on any score.

22. The appeals are, accordingly, dismissed.

J. (R.F. Nariman)

J. (Navin Sinha)

New Delhi;

February 06, 2018

Reliance General Insurance Company Ltd. Vs. Shalu Sharma and Ors[SC 2018 February]

KEYWORDS:- Motor Accident Claims-execution proceedings-FUTURE PROSPECT-

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DATE:- February 02, 2018-

The deceased was self-employed. In such a case, future prospects cannot be denied.

ACTS:- MOTOR VEHICLES ACT

SUPREME COURT OF INDIA

Reliance General Insurance Company Ltd. Vs. Shalu Sharma and Ors

[Civil Appeal No 000767 of 2018 arising out of SLP (C) No. 23086 of 2016]

Dr. D.Y. CHANDRACHUD, J

1. The present appeal arises from the judgment of a Single Judge of the Delhi High Court in an appeal against an award of the Motor Accident Claims Tribunal (MACT). 2 Narinder Sharma died in an accident which occurred on 14 September 2013. The accident involved a motor vehicle which was insured against third party risks by the appellant. The dependents filed a claim for compensation before the MACT. The Tribunal held that the accident was caused due to the negligence of the driver of the offending vehicle. Compensation of Rs 30,26,810

2. was awarded together with interest at 9 per cent per annum. The Tribunal factored in a component of 30 per cent towards the loss of future prospects in assessing the compensation.

3. The High Court has observed that the only issue which was raised by the insurer was in regard to the award of future prospects to the extent of 30 per cent. The deceased was conducting his own business in the name and style of M/s Mahak Cable Networks at East Punjabi Bagh, New Delhi. He was 42 years old on the date of the accident. According to the appellant, the increase in his gross total income as shown in the income tax returns for 2010-11, 2011-12 and 2012-13 would not justify the award of future prospects, or at least to that extent. The High Court negatived the submission of the insurer and held that having due regard to the progressive increase in the income of the deceased, the award of future prospects by the Tribunal could not be faulted.

4. The judgment of a Constitution Bench of this Court in National Insurance Company Limited v Pranay Sethi settles the issue. The deceased was self-employed. In such a case, future prospects cannot be denied. The grant must be in accordance with the following principle set down in the judgment:

“(iv) In case the deceased was self-employed or on a fixed salary, an addition of 40% of the established income should be the warrant where the deceased was below the age of 40 years. An addition of 1 (2017) 13 SCALE 12 3 25% where the deceased was between the age of 40 to 50 years and 10% where the deceased was between the age of 50 to 60 years should be regarded as the necessary method of computation. The established income means the income minus the tax component.” Since the deceased was 42 years of age, an addition of 25% on the ground of future prospects would be warranted instead of 30% computed by the Tribunal.

5. The Tribunal has held that the annual income of the deceased (on the basis of the income tax returns for 2010-11, 2011-12 and 2012-13) would be Rs 1,81,500. Adding a component of 25% for future prospects, the income would stand at Rs 2,26,875. Deducting an amount of one fourth towards personal expenses, the loss of dependency per annum works out to Rs 1,70,156. Applying a multiplier of 14, the total loss of dependency would work out to Rs 23,82,187. The Tribunal has awarded a sum of Rs 3,14,335 towards medical expenses.

An addition of Rs 70,000 would be required to be made in terms of the decision in Pranay Sethi (supra) on account of the conventional heads of loss of estate (Rs 15,000), loss of consortium (Rs 40,000) and funeral expenses (Rs 15,000). Hence, the total compensation is quantified at Rs 27,66,522 on which the claimants would be entitled to interest @ 9% p.a. from the date of the filing of the claim petition. The apportionment shall be carried out in terms of the award of the Tribunal. We order accordingly.

6. When the Special Leave Petition was entertained by this Court, the following order was passed on 12 August 2016: “Issue notice. Since the objection in this special leave petition is mainly to enhancement of the income of the deceased by 30% as prospective earning capacity, the petitioner shall deposit 75% of the awarded amount along with interest accrued thereupon before the Tribunal, within six weeks. If such deposit is made within the stipulated time, execution proceedings against the petitioner shall remain stayed. The amount so deposited, shall be released to the respondent forthwith.”

The appellant shall deposit the balance computed in terms of the present judgment within a period of eight weeks before the Tribunal which shall be disbursed to the claimants upon due verification. If the amount withdrawn by the claimants in terms of the order of this Court dated 12 August 2016 exceeds the amount to which they are entitled under the present judgment, no recoveries shall be made. The appeal is accordingly disposed of. There shall be no order as to costs.

CJI [DIPAK MISRA]

J [A M KHANWILKAR]

J [Dr D Y CHANDRACHUD]

New Delhi;

February 02, 2018

Jagtar Singh Ors. Vs. State of Uttarakhand Ors[ SC 2018 February]

KEYWORDS:- WRIT APPEAL- LAND RECORD-MUTATION

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DATE:-February 02, 2018

“Supervisor Qanoongo could not have made entries in favour of the appellants without giving public notice and without giving notice to the legal heirs of Teja Singh. The dispute is as to which of the parties is in possession of the land. The High Court erred in directing that the names of both the parties should be removed. This could not have been done”.

ACTS:-  U.P. Consolidation of Holdings Act-Land Records Manual

SUPREME COURT OF INDIA

Jagtar Singh Ors. Vs. State of Uttarakhand Ors.

[Civil Appeal No(S). 1497 of 2018 @ SLP (C) No(S).5278 of 2014]

Deepak Gupta J.

1. Leave granted.

2. This appeal is directed against the judgment and order dated 29.07.2013 passed in Writ Petition No. 3791 of 2001 whereby the writ petition filed by the petitioners was dismissed.

3. The facts giving rise to this appeal are that the land, which is the subject matter of dispute, was earlier shown in possession of one Teja Singh and entry in this behalf was reflected in Varg-4 of the revenue record. After Teja Singh died, his name was substituted by Appellant Harbhajan Kaur (since deceased) by the Supervisor Qanoongo since he found her to be in possession of the land. Jagir Singh and Karnail Singh, sons of Teja Singh, filed objections under the U.P. Consolidation of Holdings Act claiming that after the death of their father, they being the sons continued to be in possession of the land and their name should have been recorded in the revenue record. These objections were dismissed.

However, on appeal being filed by the sons, the Settlement Officer, Consolidation set aside the order passed by the Consolidation Officer and directed that the names of Jagir Singh and Karnail Singh be recorded in the revenue records. Revision filed before the Deputy Director of Consolidation was dismissed and thereafter, the writ petition was filed.

4. The High Court held that though Para 423 of the Land Records Manual authorizes the Supervisor Qanoongo to make entry of possession in remarks column but it shall be done after full publicity about his visit. In this case, neither publicity was done nor notice was given to the legal heirs of Teja Singh and, therefore, both the Settlement Officer and the Deputy Director, Consolidation were justified in quashing the entries made in favour of the present appellants. The High Court went on to hold as follows:

“In the impugned orders passed by the S.O.C. and D.D.C., so far as the finding that the Supervisor Qanoongo has no right to correct the entry in revenue record, which is already in existence, is concerned, this finding is affirmed, but so far as the direction given to enter the names of Karnail Singh and Jagir Singh on the land in dispute is concerned, the same is quashed and it is held that the entry of petitioners and the respondents cannot continue in revenue record after consolidation and it is directed that entry of Varg-4 be deleted from the land in question of both the parties, petitioners as well as the respondents.”

5. We are in agreement with the aforesaid findings to the extent that Supervisor Qanoongo could not have made entries in favour of the appellants without giving public notice and without giving notice to the legal heirs of Teja Singh. The dispute is as to which of the parties is in possession of the land. The High Court erred in directing that the names of both the parties should be removed. This could not have been done.

Therefore, the direction of the High Court that the entry of possession cannot continue in favour of either of the parties is set aside. The matter is remanded to the Supervisor Qanoongo, who after hearing both the sides, shall decide as to who is in legal possession of the land in dispute and thereafter make relevant entry in the revenue records.

6. The appeal is disposed of in the above terms. Pending applications, if any, shall also stand disposed of.

J. (Madan B. Lokur)

J. (Deepak Gupta)

New Delhi

February 02, 2018

Union of India Vs. Leen Martin & ANR.[SC 2018 February]

KEYWORDS:- NDPS-statement of official witness-ACQUITTAL –

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DATE :- February 01, 2018

When the statement of official witness is impaired due to infirmities, it is not safe to place reliance upon the same and pass conviction order against the accused.

ACTS:-  Under sections 8(c), punishable under Section 20(b)(ii) (c) and under Section 28 read with Section 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985

SUPREME COURT OF INDIA

Union of India Vs. Leen Martin & ANR.

[Criminal Appeal No(S). 2150/2011]

N. V. Ramana, J.

1. This criminal appeal arises from the impugned judgment, and order, dated 20.11.2008, in Criminal Appeal No. 379/2007 passed by the High Court of Judicature at Bombay, wherein the High Court acquitted the respondent no.1 of all the charges under sections 8(c), punishable under Section 20(b)(ii) (c) and under Section 28 read with Section 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘N.D.P.S Act’).

2. A brief reference to the prosecution case may be necessary for disposal of this case. On 05.05.2004, the officers of Customs, Air Intelligence Unit, at Chhatrapati Shivaji International Airport, Mumbai noticed that a passenger of European origin was found to be suspiciously loitering near the airline counters of Swiss Air. Observing such suspicious behavior, the airline personnel were alerted for segregating the baggage of the respondent no.1. After completing his immigration and custom formalities, respondent no.1 was intercepted by the Intelligence Officer and subjected to examination by a sniffer dog.

3. When there was an indication about the presence of narcotic or psychotropic substance, he was taken to a baggage examination area. On opening suit case his personal belongings were kept aside, even then, his suit case was found to be abnormally heavy.

On examination, a false bottom was detected and when the false bottom was removed, three rectangular packets wrapped in cellophane tape were discovered containing brown colored substance which tested positive for hashish, a contraband substance. Net weight of the recovered substance was found to be measuring 12.03 Kg. Later, the samples were drawn and the goods were seized under a seizure panchnama. It is to be noted that, on 06.05.2004, respondent no.1 recorded his statement under Section 67 of N.D.P.S Act. After completion of the investigation, charges levelled against him, the accused (respondent no. 1 herein) pleaded not guilty and claimed trial.

4. The trial court in N.D.P.S. Special Case No. 133 of 2004 conducted full-fledged trial which resulted in conviction of the respondent no.1, for offences under Section 8(c), punishable under Section 20(b)(ii)(c), with rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- in default to suffer simple imprisonment for six months. Further, the respondent no. 1 was sentenced under Section 28 read with Section 23 of N.D.P.S Act to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default to suffer simple imprisonment for six months. Both sentences were ordered to run concurrently.

5. Aggrieved by the order of conviction of the trial court, respondent no. 1 approached the High Court in Criminal Appeal No. 379 of 2007. The High Court by an order dated 20.11.2008, acquitted the respondent no. 1 of all charges as, in the opinion of the High Court, the prosecution failed in establishing that the panchas were present during the seizure procedure. The High Court while setting aside the trial court order observed that the trial court erred in convicting the respondent while relying on the sole evidence of PW-1 which is highly inconsistent and full of contradictions.

6. Aggrieved by the acquittal of respondent no. 1, Union of India has preferred the present appeal before this court by way of special leave petition.

7. We have heard the learned counsel appearing for the appellant – Union of India and the learned senior counsel appearing for respondent no.1.

8. It is brought to our notice by the learned senior counsel appearing for respondent no.1 that his client has already undergone four and a half years of incarceration and he is also not in the country.

9. Learned counsel appearing for the appellant – Union of India accepts the aforesaid statement.

10. Taking into consideration the evidence of PWs 8 and 9, panch witnesses, we find that their evidences are contradicting the statement of the Intelligence Officer (PW-1). We may note that except the statement made under Section 67 of the N.D.P.S. Act by respondent no.1, there is no other material to substantiate the case against the said respondent. Both PW-8 and PW-9 have categorically stated that, when they were called by the Intelligence Officer (PW-1) and by the time they reached, the bag was already opened. Further it was admitted by them that, the panchanama was not read over to them.

They were asked to sign on number of papers and they were not aware of the contents. Moreover, PW-1 i.e., the intelligence officer did not state that the bag containing the narcotic substance was opened in the presence of panchas. The cross-examination of PW-9 clearly reveals that he does not agree to the contents of the panchanama with respect to the fact that the search and inspection of the baggage took place in his presence.

His signatures obtained on the panchanama were not voluntarily put, which is apparent from the following statements made by PW-9 during the cross-examination: “As I was Trainee and new person I did not want to hurt the custom officer, therefore I signed panchanama and articles without reading it.” Moreover, aforesaid conclusion is substantiated by the statement of PW-8 made in the examination-in-chief in the following manner- “After entering the office room of AIU Section, I saw one open suitcase, number of officers were present and packets were shown to me… I signed on numbers of papers and on packets being shown to me.”

11. It is to be noted that the entire case of the prosecution hinges on the alleged recovery of the narcotic substance from respondent no. 1 but, this very fact is not proved beyond reasonable doubt as independent witnesses PW-8 and PW-9 have portrayed a different story as to the recovery and seizure. In the facts and circumstances of this case exclusive reliance on the statement made by respondent no. 1 would neither be prudent nor safe; especially considering the fact that, the statement of respondent no. 1 procured under Section 67 of the NDPS Act was retracted on 29.06.2004.

12. After analysis of the above circumstances and evidences; prudence dictates that the statement of the official witness PW-1 cannot be the sole basis for convicting the respondent no. 1. It may be noted that when the statement of official witness is impaired due to infirmities, it is not safe to place reliance upon the same and pass conviction order against the accused. In the present case, as already stated above, the statements of the independent panch witnesses depict a different picture than the one portrayed by the official witness PW-1.

13. We are of the opinion that the High Court had rightly acquitted the respondent no.1 taking into consideration the aforesaid aspects.

14. In view of the above and having regard to the fact that the incident is of the year 2004, we find no reason to interfere with the impugned order passed by the High Court. In the result, the appeal lacks merit and is dismissed.

J. (N.V. RAMANA)

J. (S. ABDUL NAZEER)

New Delhi,

February 01, 2018.

Joseph Vs. State of Tamil Nadu [SC 2017 December]

KEYWORDS:- Murder-vicarious liability under Section 149 IPC- Acquitted-

c

DATE:- December 14, 2017

Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case ).

ACTS:- Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC

SUPREME COURT OF INDIA

Joseph Vs. State of Tamil Nadu

[Criminal Appeal No. 413 of 2012]

Sahayam and Ors. Vs. The State of Tamil Nadu

[Criminal Appeal No.585 of 2013]

Edwinson Vs. The State of Tamil Nadu

[Criminal Appeal No.662 of 2016]

R. BANUMATHI, J.

1. These appeals arise out of the judgment dated 10.02.2011 passed by Madras High Court at Madurai Bench dismissing Criminal Appeal No.519 of 2002 thereby affirming the conviction of the appellants under Section 302 read with Section 149 IPC, Sections 341, 324, 148, 147, 323 read with Section 149 IPC and Section 326 IPC and also the sentence of imprisonment imposed upon each of them.

2. Briefly stated case of prosecution is that on 12.01.1994, PW2- Anthony Mududhagam, deceased Luis John Kennedy and Raja came to attend funeral of one Jesu (PW2’s cousin). While they were standing near Sahayam’s (A3) house at about 3.05 p.m., Jesu Adimai (A1)(since dead), Selvaraj (A2) and Sahayam (A3) armed with country made bombs in their hands, Selvam (A4) and Antony Innasi (A5) armed with sickles, Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10) with sticks and Joseph (A11) came there and confronted the deceased Kennedy, PW2 and Suresh (PW1) [who just came there to see his father PW2]. Joseph (A11) instigated all the accused to attack on them. Selvam (A4) attacked PW1 with sickle on the left shoulder. Jesu Adimai (A1) threw one country bomb which hit the forehead of the deceased and the deceased fell down. Selvaraj (A2) threw the bomb which hit the right leg of Raja. Sahayam (A3) also threw a bomb which has fallen on the ground. Antony Innasi (A5) attacked PW2 on his left shoulder. Accused Nos.6 to 10 attacked Raja and PW2 indiscriminately causing injuries to them. On seeing the by-standers coming towards the spot, the accused ran away from the scene. Thereafter Johnson (PW-3) hired a tempo and took the injured to Nagercoil Kottar Government Hospital. On the way to hospital, Kennedy succumbed to injuries.

3. Based on the statement of Raja (Ex.P-16), FIR (Ex.P-9) was registered in Crime No.23/94 under Sections 147, 148, 326, 307 and 302 IPC as well as under the Indian Explosives Act. PW9-Krishnan Nair, Inspector in Charge had taken up the initial investigation and prepared rough sketch (Ex.P-10) of the place of occurrence and seized articles viz., blood stained earth (M.O.6) and sample earth (M.O.7) from the scene of crime and conducted the inquest (Ex.P11). PW6-Dr. Kutralingam conducted autopsy on the body of the deceased and noted “lacerated injury with burnt out black skin margins over the head both ocular areas; both eyes found to be missing; Face and forehead was seen seriously disfigured.” PW6-Dr. Kutralingam opined that “the death was due to head injuries and the same could have been caused by explosion of bomb” and issued post-mortem certificate (Ex.P-6). On 15.01.1994, PW12-Ganesan- Inspector of Police, took up further investigation and arrested the accused Nos. 2 to 10 on 25.01.1994 at about 04:45 a.m. Confession statement (Ex.P3) recorded from Selvam (A4) which led to recovery of sickle with wooden handle (M.O.2) and sickle with iron handle (M.O.3). On completion of investigation and submission of final report on 08.11.1995, all the accused were remanded to judicial custody.

4. To bring home the guilt of the accused, prosecution has examined witnesses (PWs 1 to 12) and marked nineteen exhibits (Ex.P-1 to Ex.P-19) and seven material objects (M.O.1 to M.O.7). The accused were questioned under Section 313 Cr. P.C. about the incriminating evidence and circumstances and the accused denied all of them. Upon consideration of evidence adduced by the prosecution, the trial court held that the prosecution has proved the existence of common object of the unlawful assembly and that the accused acted in furtherance of the common object and convicted all the eleven accused under Section 302 IPC with the aid of constructive liability under Section 149 IPC and sentenced all of them to undergo life imprisonment. The accused were also convicted for various other offences and were sentenced to undergo various imprisonment. Being aggrieved by the verdict of conviction and sentence imposed upon them, the accused preferred appeal before the High Court which came to be dismissed by the High Court by the impugned judgment.

5. Taking us through the evidence and the impugned judgment, learned counsel for the appellants submitted that the prosecution has failed to prove the common object of the unlawful assembly to cause the death of deceased Kennedy that the accused acted in furtherance of the common object. It was contended that the appellants should not have been convicted for causing murder of Kennedy with the aid of Section 149 IPC. The learned counsel emphasized that the prosecution has failed to prove existence of common object of the unlawful assembly and that the appellants knew that death of Kennedy was likely to be caused by the unlawful assembly and therefore, the conviction of the appellants under Section 302 IPC with the aid of Section 149 IPC cannot be sustained.

6. Per contra, learned counsel appearing for the State submitted that from the evidence adduced by the prosecution and the attending circumstances of the case, prosecution has clearly proved the existence of common object and the courts below rightly convicted the accused under Section 302 IPC with the aid of Section 149 IPC.

7. We have considered the rival contentions and perused the impugned judgment and materials on record.

8. The question falling for consideration is whether the prosecution succeeded in proving the existence of common object amongst the accused persons and whether the accused persons acted in prosecution of the common object and that the accused persons knew that the death was likely to be committed, to convict the accused under Section 302 IPC with the aid of Section 149 IPC.

9. Before we consider the testimony of the witnesses, let us consider the requirements for invoking the vicarious liability under Section 149 IPC. Section 149 IPC consists of two parts:

  • The first part of the section means that there exists common object and that the offence has been committed in prosecution of the common object. In order that the offence may fall within the first part, the offence must be connected immediately with the common object of the unlawful assembly of which the accused was member.
  • The second part of the section means that even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under Section149, if it can be shown that the offence was such as the members knew was likely to be committed.

What is important in each case is to find out if the offence was committed to accomplish the common object of the assembly or was the one which the members knew to be likely to be committed. Once the court finds that the ingredients of Section 149 IPC are fulfilled, every person who at the time of committing that offence was a member of the assembly has to be held guilty of that offence.

After such a finding, it would not be open to the court to see as to who actually did the offensive act nor would it be open to the court to require the prosecution to prove which of the members did which of the above two ingredients. Before recording the conviction under Section 149 IPC, the essential ingredients of Section 141 IPC must be established.

10. Scope of two parts of Section 149 IPC has been explained in Rajendra Shantaram Todankar v. State of Maharashtra and Ors. (2003) 2 SCC 257, this Court has explained Section 149 and held as under:

“14. Section 149 of the Indian Penal Code provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who at the time of the committing of that offence, is a member of the same assembly is guilty of that offence. The two clauses of Section 149 vary in degree of certainty. The first clause contemplates the commission of an offence by any member of an unlawful assembly which can be held to have been committed in prosecution of the common object of the assembly.

The second clause embraces within its fold the commission of an act which may not necessarily be the common object of the assembly, nevertheless, the members of the assembly had knowledge of likelihood of the commission of that offence in prosecution of the common object. The common object may be commission of one offence while there may be likelihood of the commission of yet another offence, the knowledge whereof is capable of being safely attributable to the members of the unlawful assembly. In either case, every member of the assembly would be vicariously liable for the offence actually committed by any other member of the assembly.

A mere possibility of the commission of the offence would not necessarily enable the court to draw an inference that the likelihood of commission of such offence was within the knowledge of every member of the unlawful assembly. It is difficult indeed, though not impossible, to collect direct evidence of such knowledge. An inference may be drawn from circumstances such as the background of the incident, the motive, the nature of the assembly, the nature of the arms carried by the members of the assembly, their common object and the behaviour of the members soon before, at or after the actual commission of the crime.

Unless the applicability of Section 149 – either clause – is attracted and the court is convinced, on facts and in law, both, of liability capable of being fastened vicariously by reference to either clause of Section 149 IPC, merely because a criminal act was committed by a member of the assembly every other member thereof would not necessarily become liable for such criminal act. The inference as to likelihood of the commission of the given criminal act must be capable of being held to be within the knowledge of another member of the assembly who is sought to be held vicariously liable for the said criminal act…… ” [underlining added] The same principles have been reiterated in State of Punjab v. Sanjiv Kumar alias Sanju and Ors. (2007) 9 SCC 791.

11. Creation of vicarious liability under Section 149 IPC is well elucidated in Allauddin Mian and Others. Sharif Mian and Anr. v. State of Bihar (1989) 3 SCC 5, this Court held:

“8. ……..Therefore, in order to fasten vicarious responsibility on any member of an unlawful assembly the prosecution must prove that the act constituting an offence was done in prosecution of the common object of that assembly or the act done is such as the members of that assembly knew to be likely to be committed in prosecution of the common object of that assembly.

Under this section, therefore, every member of an unlawful assembly renders himself liable for the criminal act or acts of any other member or members of that assembly provided the same is/are done in prosecution of the common object or is/are such as every member of that assembly knew to be likely to be committed.

This section creates a specific offence and makes every member of the unlawful assembly liable for the offence or offences committed in the course of the occurrence provided the same was/were committed in prosecution of the common object or was/were such as the members of that assembly knew to be likely to be committed. Since this section imposes a constructive penal liability, it must be strictly construed as it seeks to punish members of an unlawful assembly for the offence or offences committed by their associate or associates in carrying out the common object of the assembly……”

[underlining added]

The same principles were reiterated in paras (26) and (27) in Daya Kishan v. State of Haryana (2010) 5 SCC 81 and also in Kuldip Yadav and Ors. v. State of Bihar (2011) 5 SCC 324.

12. Whether the members of the unlawful assembly really had the common object to cause the murder of the deceased has to be decided in the facts and circumstances of each case, nature of weapons used by such members, the manner and sequence of attack made by those members on the deceased and the circumstances under which the occurrence took place. It is an inference to be deduced from the facts and circumstances of each case (vide Lalji and Ors. v. State of U.P. (1989) 1 SCC 437; Ranbir Yadav v. State of Bihar (1995) 4 SCC 392; Rachamreddy Chenna Reddy and Ors. v. State of A.P. (1999) 3 SCC 97).

13. PW-1-Suresh and deceased Kennedy are the sons of PW-2 Anthony Muduthagam. There is a family dispute between PW-2’s family and Jesu Adimai (A1) in respect of laying the fishing net in the sea. On 12.01.1994, at about 03.00 p.m., PW-2-Anthony Muduthagam, deceased Kennedy and injured person Raja went to attend the funeral of PW-2’s cousin Jesu. While they were talking to one another, on the exhortation of Joseph (A11), the accused party attacked the complainant party. The occurrence started on the eastern side of the church and in front of the house of Sahayam (A3).

14. There are only about 350 houses in Perumanal village and most of them are fishermen. In the village, there were two factions who assembled to attend the funeral of Jesu. There was no common object among the accused as only Joseph (A11) had enmity with PW- 2’s family. Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with bombs; Selvam (A4) and Antony Innasi (A5) were armed with sickles; and A6 to A10 were armed with sticks. On the exhortation of Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead of deceased Kennedy and he fell down. Selvam (A2) threw the country bomb which hit the right ankle of Raja causing injuries to him.

The bomb hurled by Sahayam (A3) fell on the ground and exploded. The deceased died of head injuries, fracture of frontal neck and both eyes found missing. PW-6-Dr. Kutralingam opined that the injuries on the deceased could have been caused by hurling of bombs. The fact that accused Nos. 1 to 3 carrying the bombs, gives indication that they had the common intention to cause the death of the complainant party. Selvam (A4) attacked PW-1-Suresh with aruval on the left shoulder and Antony Innasi (A5) attacked PW-2-Anthony Muduthagam on the left shoulder and accused Nos. 6 to 10 attacked the complainant party with sticks. There is no evidence to prove that the accused Nos. 1 to 11 had any common object to commit the murder of Kennedy which activated all of them to join in furtherance of the common object.

15. As noted earlier, first part of Section 149 IPC states about the commission of an offence in prosecution of the common object of the assembly whereas the second part takes within its fold knowledge of likelihood of the commission of that offence in prosecution of the common object. In the facts and circumstances of the case, we are of the view that the prosecution has not proved the existence of the common object amongst the accused and that all of them acted in furtherance of the common object to invoke the first part of Section 149 IPC.

16. Let us consider whether the act of the accused falls under the second part of Section 149 IPC. As members of the unlawful assembly, whether the accused knew that the offence of murder is likely to be committed. It is a matter of evidence that Sahayam’s house is situated next to the house of Jesu, for whose funeral, the two factions have assembled. Accused Nos. 4 to 10 may not have had the knowledge that Jesu Adimai (A1), Selvaraj (A2) and Sahayam (A3) were armed with bombs and that the murder of Kennedy was likely to be committed.

On the exhortation of Joseph (A11), the accused seem to have individually reacted. There is no definite finding of the High Court that the common object of the assembly was to commit the murder or that the accused persons had knowledge that the offence of murder was likely to be committed and hence, the conviction of the accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC cannot be sustained.

17. It is now well established that this Court does not, by special leave convert itself into an appellate court to appreciate evidence for third time. As has been consistently held by this Court in Ramaniklal Gokaldas and Others v. State of Gujarat (1976) 1 SCC 6 and Ramanbhai Naranbhai Patel and others v. State of Gujarat (2000) 1 SCC 358 and other cases, unless some serious infirmity or perversity is shown, this Court normally refrains from reappreciating the matter on appeal by special leave. In the case at hand, hurling of bombs is attributed only to accused Nos. 1 to 3. Had the other accused intended to kill Kennedy and the witnesses, they would have inflicted injuries on the vital organs or used the surest weapon of committing murder and not mere sickles/sticks.

Conviction of accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC, in our view, suffers from serious infirmity and liable to be set aside.

18. Insofar as the conviction of the Sahayam (A3), an attempt was made that he cannot be convicted under Section 302 IPC as Selvaraj (A2) and Sahayam (A3) were acquitted under Section 27(2) and Section 27(3) of the Arms Act, 1959. As rightly contended by the learned counsel for the State, the sole reason for acquittal under Section 27(2) and Section 27(3) of the Arms Act is non-obtaining of prior sanction from District Magistrate to prosecute the accused under the Arms Act. Hence, the acquittal of the accused Nos. 2 and 3 under Section 27(2) and Section 27(3) of the Arms Act is of no avail to accused No. 3.

19. Joseph A11: On behalf of Joseph (A11), it was submitted that there is nothing on record to show the involvement of Joseph in the occurrence and no overt act is attributed to him and hence, no liability could be fastened upon him. PWs 1 to 3 have consistently stated that Joseph (A11) asked them to “…hack and hurl bomb…”. The words uttered by accused Joseph is the starting point for all the troubles and all the accused acted only on such instigation of accused Joseph (A11). In his evidence, Johnson (PW3) had stated “that there had been dispute between the families of Jesu Adimai (A1) and Joseph (A11) and the family of Anthony Muduthagam (PW2) with regard to fishing at sea”.

Though no overt act is attributed to the accused Joseph, the words uttered by him “…hack, throw bomb and kill…” clearly shows that only on the exhortation of the accused Joseph, other accused acted and attacked the complainant party. Joseph (A11) was convicted under Section 302 IPC read with Section 149 IPC even though he was charged under Section 302 IPC read with Section 109 IPC (fourth charge). Though the conviction of the accused Joseph under Section 302 IPC read with Section 149 IPC cannot be sustained, the same is modified as conviction under Section 302 IPC read with Section 109 IPC.

20. As discussed above, on the exhortation of Joseph (A11), Jesu Adimai (A1) hurled the bomb which hit the forehead of deceased Kennedy. Selvam (A2) hurled the bomb which hit the right ankle of Raja. Bomb hurled by Sahayam (A3) fell on the floor and exploded. The bomb hurled by Selvaraj (A2) and Sahayam (A3), though, had not hit the deceased, the fact remains that they carried the bomb which clearly indicates that Sahayam (A3) was sharing the intention with Jesu Adimai (A1) and Selvaraj (A2) in committing the murder. Conviction of Sahayam (A3) under Section 302 IPC read with Section 149 IPC is modified as conviction under Section 302 IPC read with Section 34 IPC.

21. Conviction of accused Nos. 4 to 10 under Section 302 IPC with the aid of Section 149 IPC suffers from serious infirmity and the same cannot be sustained. Since the prosecution has not succeeded in establishing and proving that there was an unlawful assembly with a common object to commit the offence, conviction of the accused Nos. 3 to 5 (under Section 148 IPC) and accused Nos. 6 to 11 (under Section 147 IPC) are set aside.

22. Considering the individual acts of the appellants, Selvam (A4) and Antony Innasi (A5) attacked PW1 and PW2 on their left shoulders respectively with sickles, conviction of Antony Innasi (A5) is modified as conviction under Section 324 IPC and the sentence of rigorous imprisonment of one year is maintained. Conviction of Selvam (A4) under Section 324 is affirmed and the sentence of imprisonment of one year imposed upon him is affirmed. Considering the acts of accused Nos.6 to 10 that they attacked Raja and PW-2 with sticks, conviction of accused Nos.6 to 10 under Section 323 read with Section 149 is modified as conviction under Section 323 IPC maintaining their sentence of imprisonment of six months.

23. Conviction of Sahayam (A3) and Joseph (A11) under Section 302 IPC read with Section 149 IPC is modified as Section 302 IPC read with Section 34 IPC and under Section 302 IPC read with Section 109 IPC respectively and the sentence of life imprisonment awarded to each of them is confirmed. Criminal Appeal No.413 of 2012 preferred by Joseph (A11) is dismissed. Sahayam (A3) and Joseph (A11) are directed to surrender to serve their remaining sentence.

24. Conviction of accused Nos. 4 to 10 [Selvam (A4), Antony Innasi (A5), Charles (A6), Jerone (A7), Edwinson (A8), Raj (A9) and Elizabethan (A10)] under Section 302 IPC read with Section 149 IPC is set aside and they are acquitted of the same. So far as conviction of Accused Nos. 4 to 10 for other offences and the sentence imposed upon each of them, the same is modified as indicated above and accordingly, appeals are partly allowed. Accused Nos. 4 to 10 have already undergone the sentence for more than six years, they need not surrender. Their bail bonds stand discharged.

J. [RANJAN GOGOI]

J. [R. BANUMATHI]

New Delhi;

December 14, 2017

Dr. Sabu Mathew George Vs. Union of India and Others [SC 2017 December]

KEYWORDS: PIL-SEX SELECTION- Exposer to internet-

DATE : December 13, 2017-

  • Many are guided by inappropriate exposure to the internet. The respondents have a role to control it and if any concrete suggestion is given by the petitioner, the same shall be incorporated. We command Google India, Yahoo ! India and Microsoft Corporation (I) Pvt. Ltd. to cooperate and give their point of view for the purpose of a satisfactory solution instead of taking a contesting stand before the Expert Committee.

Continue reading

Danamma @ Suman Surpur & ANR. Vs. Amar & Ors [SC 2018 February]

KEYWORDS:- suit for partition and a separate possession-

c

DATE: -February 1, 2018-

“we hold 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. 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. Any transaction of partition effected thereafter will be governed by the Explanation”

Act: -Hindu Succession Act, 1956 Explanation 1 to Section 6 of the Act

SUPREME COURT OF INDIA

Danamma @ Suman Surpur & ANR. Vs. Amar & Ors.

[Civil Appeal Nos. 188-189 of 2018 @ SLP (C) Nos. 10638-10639 of 2013]

A.K. SIKRI, J.

1. The appellants herein, two in number, are the daughters of one, Gurulingappa Savadi, propositus of a Hindu Joint Family. Apart from these two daughters, he had two sons, namely, Arunkumar and Vijay. Gurulingappa Savadi died in the year 2001 leaving behind the aforesaid two daughters, two sons and his widow, Sumitra. After his death, Amar, S/o Arunkumar filed the suit for partition and a separate possession of the suit property described at Schedule B to E in the plaint stating that the two sons and widow were in joint possession of the aforesaid properties as coparceners and properties mentioned in Schedule B was acquired out of the joint family nucleus in the name of Gurulingappa Savadi.

Case set up by him was that the appellants herein were not the coparceners in the said joint family as they were born prior to the enactment of Hindu Succession Act, 1956 (hereinafter referred to as the ‘Act’). It was also pleaded that they were married daughters and at the time of their marriage they had received gold and money and had, hence, relinquished their share.

2. The appellants herein contested the suit by claiming that they were also entitled to share in the joint family properties, being daughters of Gurulingappa Savadi and for the reason that he had died after coming into force the Act of 1950.

3. The trial court, while decreeing the suit held that the appellants were not entitled to any share as they were born prior to the enactment of the Act and, therefore, could not be considered as coparceners. The trial court also rejected the alternate contention that the appellants had acquired share in the said properties, in any case, after the amendment in the Act vide amendment Act of 2005. This view of the trial court has been upheld by the High Court in the impugned judgement dated January 25, 2012 thereby confirming the decree dated August 09, 2007 passed in the suit filed for partition.

4. In the aforesaid backdrop, the question of law which arises for consideration in this appeal is as to whether, the appellants, daughters of Gurulingappa Savadi, could be denied their share on the ground that they were born prior to the enactment of the Act and, therefore, cannot be treated as coparceners? Alternate question is as to whether, with the passing of Hindu Succession (Amendment) Act, 2005, the appellants would become coparcener “by birth” in their “own right in the same manner as the son” and are, therefore, entitled to equal share as that of a son?

5. Though, we have mentioned the gist of the lis involved in this case along with brief factual background in which it has arisen, some more facts which may be necessary for understanding the genesis of issue involved may also be recapitulated. We may start with the genealogy of the parties, it is as under: “

Guralingappa=Sumitra (Def.8)

Mahandanda (Def. 7)

Arunkumar @ Arun (Def.1) (dead) = Sarojini (Def.2)

Vijay (Def.5)

Danamma (Def. 6)

Sheetal (Def. 3)

Amar (Plff)

Triveni (Def. 4)

6. Respondent No. 1 herein (the plaintiff) filed the suit on July 01, 2002 claiming 1/15th share in the suit schedule properties. In the said suit, he mentioned the properties which needed partition.

7. The plaint schedule C compromised of the house properties belonging to the joint family. The plaint schedule D comprised of the shop properties belonging to the joint family. The plaint schedule E comprised of the machineries and movable belonging to the joint family. The plaintiff averred that the plaint schedule properties belonged to the joint family and that defendant no. 1, the father of the plaintiff was neglecting the plaintiff and his siblings and sought partition of the suit schedule properties.

The plaintiff contended that all the suit schedule properties were the joint family properties. The plaintiff contended in para 5 of the plaint that the propositus, Guralingappa died 1 year prior to the filing of the suit. In para 7 of the plaint, the plaintiff contended that defendant no. 1 had 1/3rd share and defendant no. 5 and 8 had 1/3rd share each in the suit schedule properties. The plaintiff also contended that defendants 6 and 7 did not have any share in the suit schedule properties.

8. Defendant no. 1 (father of the plaintiff) and son of Guralingappa Savadi did not file any written statement. Defendant nos. 2, 3 and 4 filed their separate written statements supporting the claim of the plaintiff. Defendant no. 5 (respondent no. 5 herein and son of Guralingappa Savadi), however, contested the suit. He, inter alia, contended that after the death of Guralingappa, an oral partition took place between defendant no. 1, defendant no. 5 and others and in the said partition, defendant no. 1 was allotted certain properties and defendant no. 5 was allotted certain other properties and defendant no. 8, Sumitra, wife of Guralingappa Savadi was allotted certain other properties. Defendant 5 no. 5 further contended that defendant nos. 6 and 7 were not allotted any properties in the said alleged oral partition.

9. Defendant no. 5 further contended that one of the properties, namely, C.T.S. No. 774 and also certain other properties were not joint family properties.

10. The appellants claimed that they were also entitled to their share in the property. After framing the issues and recording the evidence, the trial court by its judgment and decree dated August 09, 2007 held that the suit schedule properties were joint family properties except CTS No. 774 (one of the house properties in plaint C schedule).

11. The trial court held that the plaintiff, defendant nos. 2 to 4 were entitled to 1/8th share in the joint family properties. The trial court further noted that defendant no. 8 (wife of Gurulingappa Savadi) died during the pendency of the suit intestate and her share devolved in favour of defendants no. 1 and 5 only and, therefore, defendant nos. 1 and 2 were entitled to 1/2 share in the said share. The trial court passed the following order: “The suit of the plaintiff is decreed holding that the plaintiff is entitled for partition and separate possession of his 1/8th share in the suit ‘B’, ‘C’ and ‘D’ schedule properties (except CTS No. 774) and also in respect of the Machinery’s stated in the report of the commissioner. The commissioners report Ex. P16 which contains the list of machinery’s to form part of the decree. 6 The defendants 2 to 4 are each entitled to a/8th share and the 5th defendant is entitled for 4/8 share in the above said properties.”

12. The trial court, thus, denied any share to the appellants.

13. Aggrieved by the said judgment and decree of the trial court, the defendant nos. 6 and 7 filed an appeal bearing R.F.A. No. 322 of 2008 before the High Court seeking equal share as that of the sons of the propositus, namely, defendant nos. 1 and 5.

14. The High Court by its impugned judgment and order dated January 25, 2012 dismissed the appeal. Thereafter, on March 04, 2012 defendant nos. 6 and 7 filed a review petition bearing no. 1533 of 2012 before the High Court, which met the same fate.

15. We have heard the learned counsel for the parties. Whereas, the learned counsel for the appellants reiterated his submissions which were made before the High Court as well and noted above, learned counsel for the respondents refuted those submissions by relying upon the reason given by the High Court in the impugned judgment.

16. In the first instance, let us take note of the provisions of Section 6 of the Act, as it stood prior to its amendment by the Amendment Act, 2005. This provision reads as under:

“6. Devolution of interest in coparcenary property.- When a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act: Provided that, if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship.

Explanation 1.- For the purposes of this section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

Explanation 2.- Nothing contained in the proviso to this section shall be construed as enabling a person who had separated himself from the coparcenary before the death of the deceased or any of his heirs to claim on intestacy a share in the interest referred to therein.”

17. No doubt, Explanation 1 to the aforesaid Section states that the interest of the deceased Mitakshara coparcenary property shall be deemed to be the share in the property that would have been allotted to him if the partition of the property had taken place immediately before his death, irrespective whether he was entitled to claim partition or not. This Explanation came up for interpretation before this Court in Anar Devi & Ors. v. Parmeshwari Devi & Ors. (2006) 8 SCC 656 8 The Court quoted, with approval, the following passage from the authoritative treatise of Mulla, Principles of Hindu Law, 17th Edn., Vol. II, p. 250 wherein the learned  author made following remarks while interpreting Explanation 1 to Section 6:

“…Explanation 1 defines the expression ‘the interest of the deceased in Mitakshara coparcenary property’ and incorporates into the subject the concept of a notional partition. It is essential to note that this notional partition is for the purpose of enabling succession to and computation of an interest, which was otherwise liable to devolve by survivorship and for the ascertainment of the shares in that interest of the relatives mentioned in Class I of the Schedule.

Subject to such carving out of the interest of the deceased coparcener the other incidents of the coparcenary are left undisturbed and the coparcenary can continue without disruption. A statutory fiction which treats an imaginary state of affairs as real requires that the consequences and incidents of the putative state of affairs must flow from or accompany it as if the putative state of affairs had in fact existed and effect must be given to the inevitable corollaries of that state of affairs.”

7. The learned author further stated that: “[T]he operation of the notional partition and its inevitable corollaries and incidents is to be only for the purposes of this section, namely, devolution of interest of the deceased in coparcenary property and would not bring about total disruption of the coparcenary as if there had in fact been a regular partition and severance of status among all the surviving coparceners.”

8. According to the learned author, at pp. 253-54, the undivided interest “of the deceased coparcener for the purpose of giving effect to the rule laid down in the proviso, as already pointed out, is to be ascertained on the footing of a notional partition as of the date of his death.

The determination of that share must depend on the number of persons who would have been entitled to a share in the coparcenary property if a partition had in fact taken place immediately before his death and such person would have to be ascertained according to the law of joint family and partition. The rules of Hindu law on the subject in force at the time of the death of the coparcener must, therefore, govern the question of ascertainment of the persons who would 9 have been entitled to a share on the notional partition”.

18. Thereafter the Court spelled out the manner in which the statutory fiction is to be construed by referring to certain judgments and summed up the position as follows:

“11. Thus we hold that according to Section 6 of the Act when a coparcener dies leaving behind any female relative specified in Class I of the Schedule to the Act or male relative specified in that class claiming through such female relative, his undivided interest in the Mitakshara coparcenary property would not devolve upon the surviving coparcener, by survivorship but upon his heirs by intestate succession.

Explanation 1 to Section 6 of the Act provides a mechanism under which undivided interest of a deceased coparcener can be ascertained and i.e. that the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

It means for the purposes of finding out undivided interest of a deceased coparcener, a notional partition has to be assumed immediately before his death and the same shall devolve upon his heirs by succession which would obviously include the surviving coparcener who, apart from the devolution of the undivided interest of the deceased upon him by succession, would also be entitled to claim his undivided interest in the coparcenary property which he could have got in notional partition.”

19. This case clearly negates the view taken by the High Court in the impugned judgment.

20. That apart, we are of the view that amendment to the aforesaid Section vide Amendment Act, 2005 clinches the issue, beyond any pale of doubt, in favour of the appellants. This amendment now confers upon the daughter of the coparcener as well the status of coparcener in her own right in the same manner as the son and gives same rights and liabilities in the coparcener properties as she would have had if it had been son. The amended provision reads as under:

“6. Devolution of interest in coparcenary property.-

(1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall,-

(a) by birth become a coparcener in her own right the same manner as the son;

(b) have the same rights in the coparcenery property as she would have had if she had been a son;

(c) be subject to the same liabilities in respect of the said coparcenery property as that of a son, and any reference to a Hindu Mitakshara coparcener shall be deemed to include a reference to a daughter of a coparcener: Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.

(2) 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 and shall be regarded, notwithstanding anything contained in this Act or any other law for the time being in force, as property capable of being disposed of by her by testamentary disposition.

(3) Where a Hindu dies after the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), his interest in the property of a Joint Hindu family governed by the Mitakshara law, shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship, and the coparcenery property shall be deemed to have been divided as if a partition had taken place and,-

(a) the daughter is allotted the same share as is allotted to a son;

(b) the share of the pre-deceased son or a pre-deceased daughter, as they would have got had they been alive at the time of partition, shall be allotted to the surviving child of such pre-deceased son or of such pre-deceased daughter; and

(c) the share of the pre-deceased child of a pre-deceased son or of a pre-deceased daughter, as such child would have got had he or she been alive at the time of the partition, shall be allotted to the child of such pre-deceased child of the pre-deceased son or a pre-deceased daughter, as the case may be.

Explanation.-For the purposes of this sub-section, the interest of a Hindu Mitakshara coparcener shall be deemed to be the share in the property that would have been allotted to him if a partition of the property had taken place immediately before his death, irrespective of whether he was entitled to claim partition or not.

(4) After the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), no court shall recognise any right to proceed against a son, grandson or great-grandson for the recovery of any debt due from his father, grandfather or great-grandfather solely on the ground of the pious obligation under the Hindu law, of such son, grandson or great-grandson to discharge any such debt: Provided that in the case of any debt contracted before the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005), nothing contained in this sub-section shall affect-

(a) the right of any creditor to proceed against the son, grandson or great-grandson, as the case may be; or

(b) any alienation made in respect of or in satisfaction of, any such debt, and any such right or alienation shall be enforceable under the rule of pious obligation in the same manner and to the same extent as it would have been enforceable as if the Hindu Succession (Amendment) Act, 2005 (39 of 2005) had not been enacted.

Explanation.-For the purposes of clause (a), the expression “son”, “grandson” or “great-grandson” shall be deemed to refer to the son, grandson or great-grandson, as the case may be, who was born or adopted prior to the commencement of the Hindu Succession (Amendment) Act, 2005 (39 of 2005).

(5) Nothing contained in this section shall apply to a partition, which has been effected before the 20th day of December, 2004.

Explanation.-For the purposes of this section “partition” means any partition made by execution of a deed of partition duly registered under the Registration Act, 1908 (16 of 1908) or partition effected by a decree of a court.]”

21. The effect of this amendment has been the subject matter of pronouncements by various High Courts, in particular, the issue as to whether the right would be conferred only upon the daughters who are born after September 9, 2005 when Act came into force or even to those daughters who were born earlier. Bombay High Court in Vaishali Satish Gonarkar v. Satish Keshorao Gonarkar2 had taken the view that the provision cannot be made applicable to all daughters born even prior to the amendment, when the Legislature itself specified the posterior date from which the Act would come into force.

This view was contrary to the view taken by the same High Court in Sadashiv Sakharam Patil v. Chandrakant Gopal Desale3. Matter was referred to the Full Bench and the judgment of the Full Bench is reported as Badrinarayan Shankar Bhandari v. Omprakash Shankar Bhandari4. The Full Bench held that clause (a) of sub-section (1) of Section 6 would be prospective in operation whereas clause (b) and (c) and other parts of sub-section (1) as well as sub-section (2) would be retroactive in operation.

It held that amended Section 6 applied to daughters born 2 AIR 2012 Bom 110 3 2011 (5) Bom CR 726 4 AIR 2014 Bom 151 13 prior to June 17, 1956 (the date on which Hindu Succession Act came into force) or thereafter (between June 17, 1956 and September 8, 2005) provided they are alive on September 9, 2005 i.e. on the date when Amended Act, 2005 came into force. Orissa, Karnataka and Delhi High Court have also held to the same effect5.

22. The controversy now stands settled with the authoritative pronouncement in the case of Prakash & Ors. v. Phulavati & Ors. which has approved the view taken by the aforesaid High Courts as well as Full Bench of the Bombay High Court. Following discussion from the said judgment is relevant:

“17. The text of the amendment itself clearly provides that the right conferred on a “daughter of a coparcener” is “on and from the commencement of the Hindu Succession (Amendment) Act, 2005”. Section 6(3) talks of death after the amendment for its applicability. In view of plain language of the statute, there is no scope for a different interpretation than the one suggested by the text of the amendment. An amendment of a substantive provision is always prospective unless either expressly or by necessary intendment it is retrospective. [Shyam Sunder v. Ram Kumar, (2001) 8 SCC 24, paras 22 to 27]

In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect. Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. The intent and effect of the amendment will be considered a little later. On this finding, the view of the High Court cannot be sustained.

18. The contention of the respondents that the amendment 5 AIR 2008 Ori 133: Pravat Chandra Pattnaik v. Sarat Chandra Pattnaik; ILR 2007 Kar 4790: Sugalabai v. Gundappa A. Maradi and 197 (2013) DLT 154: Rakhi Gupta v. Zahoor Ahmad 6 (2016) 2 SCC 36 14 should be read as retrospective being a piece of social legislation cannot be accepted. Even a social legislation cannot be given retrospective effect unless so provided for or so intended by the legislature. In the present case, the legislature has expressly made the amendment applicable on and from its commencement and only if death of the coparcener in question is after the amendment.

Thus, no other interpretation is possible in view of the express language of the statute. The proviso keeping dispositions or alienations or partitions prior to 20-12-2004 unaffected can also not lead to the inference that the daughter could be a coparcener prior to the commencement of the Act. The proviso only means that the transactions not covered thereby will not affect the extent of coparcenary property which may be available when the main provision is applicable. Similarly, Explanation has to be read harmoniously with the substantive provision of Section 6(5) by being limited to a transaction of partition effected after 20-12-2004. Notional partition, by its very nature, is not covered either under the proviso or under sub-section (5) or under the Explanation.

19. Interpretation of a provision depends on the text and the context. [RBI v. Peerless General Finance & Investment Co. Ltd., (1987) 1 SCC 424, p. 450, para 33] Normal rule is to read the words of a statute in ordinary sense. In case of ambiguity, rational meaning has to be given. [Kehar Singh v. State (Delhi Admn.), (1988) 3 SCC 609 : 1988 SCC (Cri) 711] In case of apparent conflict, harmonious meaning to advance the object and intention of legislature has to be given. [District Mining Officerv. TISCO, (2001) 7 SCC 358]

20. There have been number of occasions when a proviso or an explanation came up for interpretation. Depending on the text, context and the purpose, different rules of interpretation have been applied. [S. Sundaram Pillai v. V.R. Pattabiraman, (1985) 1 SCC 591]

21. Normal rule is that a proviso excepts something out of the enactment which would otherwise be within the purview of the enactment but if the text, context or purpose so require a different rule may apply. Similarly, an explanation is to explain the meaning of words of the section but if the language or purpose so require, the explanation can be so interpreted. Rules of interpretation of statutes are useful servants but difficult masters. [Keshavji Ravji & Co. v. CIT, (1990) 2 SCC 231 : 1990 SCC (Tax) 268] Object of interpretation is to discover the intention of legislature.

22. In this background, we find that the proviso to Section 6(1) and sub-section (5) of Section 6 clearly intend to exclude the transactions referred to therein which may have taken place prior to 20-12-2004 on which date the Bill was introduced. Explanation cannot permit reopening of partitions which were valid when effected. Object of giving finality to transactions prior to 20-12-2004 is not to make the main provision retrospective in any manner.

The object is that by fake transactions available property at the introduction of the Bill is not taken away and remains available as and when right conferred by the statute becomes available and is to be enforced. Main provision of the amendment in Sections 6(1) and (3) is not in any manner intended to be affected but strengthened in this way. Settled principles governing such transactions relied upon by the appellants are not intended to be done away with for period prior to 20-12-2004. In no case statutory notional partition even after 20-12-2004 could be covered by the Explanation or the proviso in question.

23. Accordingly, we hold 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. 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. Any transaction of partition effected thereafter will be governed by the Explanation.”

23. The law relating to a joint Hindu family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition.

These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realization of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change.”

24. Section 6, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognizes the rights of coparceners of daughters as well since birth.

The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation as explained above, and as is well recognized. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-s (1)(a) and (b).

25. Reference to the decision of this Court, in the case of State Bank of India v. Ghamandi Ram7 in essential to understand the incidents of coparceneryship as was always inherited in a Hindu Mitakshara coparcenary: “According to the Mitakshara School of Hindu Law all the property of a Hindu joint family is held in collective ownership by all the coparceners in a quasi-corporate capacity. The textual authority of the Mitakshara lays down in express terms that the joint family property is held in trust for the joint family members then living and thereafter to be born (See Mitakshara, Ch. I. 1-27).

The incidents of coparcenership under the Mitakshara law are: first, the lineal male descendants of a person up to the third generation, acquire on birth ownership in the ancestral properties is common; secondly, that such descendants can at any time work out their rights by asking for partition; thirdly, that till partition each member has got ownership extending over the entire property, conjointly with the rest; fourthly, that as a result of such co-ownership the possession and enjoyment of the properties is common; fifthly, that no alienation of the property is possible unless it be for necessity, without the concurrence of the coparceners, and sixthly, that the interest of a deceased member lapses on his death to the survivors.”

26. Hence, it is clear that the right to partition has not been abrogated. 7 AIR 1969 SC 1330. The right is inherent and can be availed of by any coparcener, now even a daughter who is a coparcener.

27. In the present case, no doubt, suit for partition was filed in the year 2002. However, during the pendency of this suit, Section 6 of the Act was amended as the decree was passed by the trial court only in the year 2007. Thus, the rights of the appellants got crystallised in the year 2005 and this event should have been kept in mind by the trial court as well as by the High Court. This Court in Ganduri Koteshwaramma & Anr. v. Chakiri Yanadi & Anr.8 held that the rights of daughters in coparcenary property as per the amended S. 6 are not lost merely because a preliminary decree has been passed in a partition suit. So far as partition suits are concerned, the partition becomes final only on the passing of a final decree. Where such situation arises, the preliminary decree would have to be amended taking into account the change in the law by the amendment of 2005.

28. On facts, there is no dispute that the property which was the subject matter of partition suit belongs to joint family and Gurulingappa Savadi was propositus of the said joint family property. In view of our aforesaid discussion, in the said partition suit, share will devolve upon the appellants as well. Since, Savadi died leaving behind two sons, two daughters and a widow, both the appellants would be entitled to 1/5th 8 (2011) 9 SCC 788 19 share each in the said property. Plaintiff (respondent No.1) is son of Arun Kumar (defendant No.1). Since, Arun Kumar will have 1/5th share, it would be divided into five shares on partition i.e. between defendant No.1 Arun Kumar, his wife defendant No.2, his two daughters defendant Nos.3 and 4 and son/plaintiff (respondent No.1). In this manner, the plaintiff/respondent No.1 would be entitled to 1/25th share in the property.

29. The appeals are allowed in the aforesaid terms and decree of partition shall be drawn by the trial court accordingly.

No order as to costs.

J. (A.K. SIKRI)

J. (ASHOK BHUSHAN)

NEW DELHI;

FEBRUARY 1, 2018.

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Indian Young Lawyers Association & Ors. Vs. State of Kerala & Ors. [SC 2017 October]

[Sabarimala Temple Case]

DATE : October 13, 2017

The question as to whether a set of persons constitute a religious denomination is a mixed question of fact and law and should be decided by a competent civil court after examination of documentary and other evidence. In this regard, reliance has been placed on the authority in Dr. Subramanian Swamy v. State of Tamil Nadu and others. Various other aspects have also been highlighted but it is not necessary to note the same at present.  Continue reading