Saturday, 25 October 2014

Distinction between “privilege” and “accrued right”.


In Isha Valimohamad and Anr. vs. Haji Gulam Mohamad &
Haji Dada Trust 1975 (1) SCR 720 the Supreme Court made a distinction
between “privilege” and “accrued right”.
“Mr. Patel for respondent contended that even if the
landlord had no accrued right, he at least had a 'privilege'
as visualised in Section 51, proviso (1)(ii) of the Bombay
Act and that the privilege should survive the repeal.
A privilegium, in short, is a special act affecting
special persons with an anomalous advantage, or with an
anomalous burthen. It is derived from privatum, which,
as opposed to publican, signified anything which regards
persons considered individually; publicum being
anything which regards persons considered collectively,
and forming a society
(See Austin's Jurisprudence, Vol. II, 5th ed. (1911) P.
519)
The meaning of that word in jurisprudence has
undergone considerable change after Austin wrote.
According to Hohfeld:
... a privilege is the opposite of a duty, and the
correlative of a 'no-right'. For instance, where "X has a
right or claim that Y should stay off the land (of X), he
himself has the 'privilege' of entering on the land; or, in
equivalent words, X does not have a duty to stay off.
Fundamental Legal Conceptions (1923) pp. 38-39)
Arthur L. Corbin writes:
We say that B had a right that A should not intrude
and that A had a duty to stay out. But if B had invited A
to enter, we know that those results would not occur. In

such case we say that B had no right that A should stay
out and that A had the privilege of entering.
(See "Legal Analysis and Terminology", 29 Yale
Law Journal 163)
According to Kocourek:
Privilege and inability are correlatives. Where there
is a privilege there must be inability. The terms are
correlatives. The dominus of a Privilege may prevent the
servus of the Inability from exacting an act from the
dominus
(See "Jural Relations", 2nd ed., p. 24)
Patton says:
The Restatement of the law of Property defines a
privilege as a legal freedom on the part of one person as
against another to do a given act or a legal freedom not to
do a certain act.
(See Jurisprudence, 3rd ed. (1964), p. 256)
We think that the respondent-landlord had the legal
freedom as against the appellants to terminate the
tenancy or not. The appellants had no right or claim that
the respondent should not terminate the tenancy and the
respondent had, therefore, the privilege of terminating it
on the ground that appellants had sub-let the premises.
This privilege would survive the repeal. But the problem
would still remain whether the respondent had an accrued
right or privilege to recover possession of the premises
under Section 13(1) of the Saurashtra Act on the ground
of the sub-letting before the repeal of that Act. The fact
that the privilege to terminate the tenancy on the ground
of sub-letting survived the repeal does not mean that the
landlord had an accrued right or privilege to recover
possession under Section 13(1) of that Act as that right or

privilege could arise only if the tenancy had been validly
terminated before the repeal of the Saurashtra Act.”
(at Pages 725, 726)
It is clear therefore that no accrued right to property was ever vested in the
defaulting member.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.4354 of 2003
The Stock Exchange, Bombay
.......Appellant
Versus
V.S. Kandalgaonkar & Ors.
Dated;September 25, 2014

R.F.Nariman, J.
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Whether Employee can withdraw his voluntary retirement offer till he is released from service?


The Supreme Court in Shambhu Murari Sinha Vs. Project & Development India Ltd., AIR 2002 SC 1341 : 2002 (2) SCR 396 : (2002) 3 SCC 437 : 2002 (2) SCALE 587 : JT 2002 (3) SC 37 held that "relationship of employer and employee continuous till the date of actual release of employee from service and not from the date of acceptance of the voluntary retirement. Thus, since employee had locus poenitentiae to withdraw his proposal for voluntary retirement before relationship of employer and employee comes to an end, management could not have refused to accept the withdrawal letter of the employee." 

Appellant-employee applied for voluntary retirement under the Voluntary Retirement Scheme (VRS). Respondent-management accepted it with the condition that the release memo along with details particulars will follow. Thereafter, appellant sent two letters withdrawing his option for VRS before he was actually released from service but there was no response from the respondents. Later the respondents issued a memo releasing appellant from service. Aggrieved, appellant filed petition challenging the release order. Both the Single Judge and Division Bench of the High Court upheld the release order. 

In appeal before Apex Court appellant contended that in view of Gopal Chandra Mishra's case*, the appellant was within his right to withdraw his option for voluntary retirement even after its acceptance but before the actual date of release from the employment. Respondents contended that from the date of acceptance of the letter of voluntary retirement by the respondent, the relationship of employer and employee came to an end and, therefore, the appellant ceased to be an employee of the respondent from that date. 

Allowing the appeal, the Bench of Justices S.N. Phukan & P. Venkatarama Reddi held that there is no condition in the whole scheme that once an option to voluntary retire is exercised by an employee and the same is accepted by the employer, the employee is not entitled to withdraw from voluntary retirement.

Appellant was paid his salaries etc. till his date of actual release and, therefore, the jural relationship of employee and employer between the appellant and the respondents did not come to an end on the date of acceptance of the voluntary retirement and the said relationship continued till the date of actual release of the employee. The appellant admittedly sent two letters withdrawing his voluntary retirement before his actual date of release from service. Therefore, in view of the settled position of the law and the terms of the letter of acceptance, the appellant had locus poenitentiae to withdraw his proposal for voluntary retirement before the relationship of employer and employee came to an end. Therefore, the respondent could not have refused to accept the withdrawal letter of the appellant as it was sent before the jural relationship of employee and employer came to an end.
Supreme Court of India
Shambhu Murari Sinha vs Project & Development India Ltd. & ... on 13 March, 2002
Author: Phukan
Bench: S.N. Phukan, P. Venkatarama Reddi
Citation; AIR 2002 SC 1341 : 2002 (2) SCR 396 : (2002) 3 SCC 437 : 2002 (2) SCALE 587 : JT 2002 (3) SC 37
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Whether finding that counter-claim is barred by principles of O 2, R 2 C.P.C can be regarded as an ancillary or incidental finding recorded in suit?


The Apex Court observed that a counter-claim preferred by the defendant in a suit is in the nature of a cross-suit and by a statutory command even if the suit is dismissed, counter-claim shall remain alive for adjudication. For making a counter-claim entertainable by the court, the defendant is required to pay the requisite court fee on the valuation of the counter-claim. The plaintiff is obliged to file a written statement and in case there is default the court can pronounce the Judgment against the plaintiff in relation to the counter-claim put forth by the defendant as it has an independent status. The purpose of the scheme relating to counter-claim is to avoid multiplicity of the proceedings. When a counter-claim is dismissed on being adjudicated on merits it forecloses the rights of the defendant.

When an opinion is expressed holding that the counter-claim is
barred by principles of Order 2, Rule 2 C.P.C., it indubitably
adjudicates the controversy as regards the substantive right of
the defendants who had lodged the counter-claim. It cannot be
regarded as an ancillary or incidental finding recorded in the
suit. 

Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6862 OF 2014
[Arising out of S.L.P. (C) No. 6757 of 2012)
Rajni Rani & Anr.

Versus
Khairati Lal & Ors.
Dated;October 14, 2014

Dipak Misra, J.
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Whether court can give direction to conduct DNA test of child to ascertain whether mother of said child is living in adultery?


It is borne from the decisions rendered by this Court in Bhabani Prasad Jena (supra), and Nandlal Wasudeo Badwaik (supra), that depending on the facts and circumstances of the case, it would be permissible for a Court to direct the holding of a DNA examination, to determine the veracity of the allegation(s), which constitute one of the grounds, on which the concerned party would either succeed or lose. There can be no dispute, that if the direction to hold such a test can be avoided, it should be so avoided. The reason, as already recorded in various judgments by this Court, is that the legitimacy of a child should not be put to peril.
11. The question that has to be answered in this case, is in respect of the alleged infidelity of the Appellant-wife. The Respondent-husband has made clear and categorical assertions in the petition filed by him Under Section 13 of the Hindu Marriage Act, alleging infidelity. He has gone to the extent of naming the person, who was the father of the male child born to the Appellant-wife. It is in the process of substantiating his allegation of infidelity, that the Respondent-husband had made an application before the Family Court for conducting a DNA test, which would establish whether or not, he had fathered the male child born to the Appellant-wife. The Respondent feels that it is only possible for him to substantiate the allegations levelled by him (of the Appellant-wife's infidelity) through a DNA test. We agree with him. In our view, but for the DNA test, it would be impossible for the Respondent-husband to establish and confirm the assertions made in the pleadings. We are therefore satisfied, that the direction issued by the High Court, as has been extracted hereinabove, was fully justified. DNA testing is the most legitimate and scientifically perfect means, which the husband could use, to establish his assertion of infidelity. This should simultaneously be taken as the most authentic, rightful and correct means also with the wife, for her to rebut the assertions made by the Respondent-husband, and to establish that she had not been unfaithful, adulterous or disloyal. If the Appellant-wife is right, she shall be proved to be so.
12. We would, however, while upholding the order passed by the High Court, consider it just and appropriate to record a caveat, giving the Appellant-wife liberty to comply with or disregard the order passed by the High Court, requiring the holding of the DNA test. In case, she accepts the direction issued by the High Court, the DNA test will determine conclusively the veracity of accusation levelled by the Respondent-husband, against her. In case, she declines to comply with the direction issued by the High Court, the allegation would be determined by the concerned Court, by drawing a presumption of the nature contemplated in Section 114 of the Indian Evidence Act, especially, in terms of illustration (h) thereof. Section 114 as also illustration (h), referred to above, are being extracted hereunder:
114. Court may presume existence of certain facts - The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.
Illustration (h) - That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him.
This course has been adopted to preserve the right of individual privacy to the extent possible. of course, without sacrificing the cause of justice. By adopting the above course, the issue of infidelity alone would be determined, without expressly disturbing the presumption contemplated Under Section112 of the Indian Evidence Act. Even though, as already stated above, undoubtedly the issue of legitimacy would also be incidentally involved.1
“REPORTABLE”
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 9744 OF 2014
(Arising out of SLP(C) No.5694 of 2013)
Dipanwita Roy
.... Appellant
versus
Ronobroto Roy
.... Respondent
JUDGMENT
Jagdish Singh Khehar, J.
Dated;October 15, 2014.
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