Sunday, 22 August 2021

Questions and answers on law Part 26

Q 1 :-  Whether a person can validly execute will after accepting consideration?

Ans:-Will is the wish of testator in respect of disposal of his property after ones death. It should be made by free wish and without any force, undue influence or coercion. Further a Will can be revoked any time by testator.

When money consideration is given in respect of will, it will not be a free wish of testator as he will not be able to revoke it anytime due to acceptance of consideration and thus it will be binding upon testator. Therefore, in my opinion, it will not be a valid will if consideration of money is present in that transaction.

Q 2:- Which law will be applicable if non resident Indian execute  will in respect of immovable property situated in India and in foreign country?

Ans: Section 5 in The Indian Succession Act, 1925
5. Law regulating succession to deceased person’s immovable and movable property, respectively.—
(1) Succession to the immovable property in 1[India] of a person deceased shall be regulated by the law of 1[India], wherever such person may have had his domicile at the time of his death.

As per this section  as far as immovable properties are concerned, all matters relating to capacity to make Will, revocation of Will, power of disposition and all such related matters are governed by the lex situs or in other words, the law of the land where the property is situated.

Q 3:-  Whether woman can be held guilty for an offence U/S 354A of IPC?

Ans:  Indian Penal Code (IPC) S. 354A. Sexual harassment and punishment for sexual harassment.

[i][354-A. Sexual harassment and punishment for sexual harassment.—(1) A man committing any of the following acts—

(i) physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) a demand or request for sexual favours; or

(iii) showing pornography against the will of a woman; or

(iv) making sexually coloured remarks,

shall be guilty of the offence of sexual harassment.

(2) Any man who commits the offence specified in clause (i) or clause (ii) or clause (iii) of sub-section (1) shall be punished with rigorous imprisonment for a term which may extend to three years, or with fine, or with both.

(3) Any man who commits the offence specified in clause (iv) of sub-section (1) shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.]

As per this section,this offence can be committed only by male. It is not gender neutral offence.

Q 4:- What is distinction between an offence U/S 354 of IPC and S 354A of IPC?

Ans:- Sec 354A of IPC starts with "any man" . Sec 10 of IPC defines 'Man' as male human being. Sec 354 is gender neutral offence while sec 354A can't be said to be gender neutral offence.

Q 5: Can plaintiff ask cancellation of oral agreement as  per section 31 of specific relief Act?

Ans:- No, as S 31 of specific relief Act speaks only of written instrument.
31. When cancellation may be ordered.—
(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Q 6:- Whether court can permit withdrawal of warrant triable private complaint case?

Ans:- If we see the entire code, there is not provision in the code of criminal procedure for withdrawal of warrant triable private criminal complaint by the complainant. Therefore  trial court can not  grant permission to withdraw the complaint. 
As rightly stated above, section 257 has the expression, " at any time before a final order is passed in any case 'under this chapter'". Thus, application of 257 crpc is restricted to trial of summons cases alone.

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