Can a court issue a partition decree with the consent of only some of the coparceners?

 

Indisputably, in the case on hand, the Plaintiff has not put her signature on the deed of settlement, which was produced before the High Court in first appeal. The Plaintiff has made herself very clear that she never joined in the settlement between her brother i.e., the Defendant No. 1 and her sister i.e., the Defendant No. 2. On this ground alone, the settlement could be said to be unlawful, being without any written consent of all the parties. In a suit for partition of joint property, a decree by consent amongst some only of the parties cannot be maintained.

{Para 94}

95. In Nityamoni Dasi v. Gokul Chandra Sen reported in MANU/WB/0534/1910 : (1911) 9 Ind Cas 210 (Cal), the Calcutta High Court observed:

... The decree of the Subordinate Judge must be set aside and the whole case retried, because as this is a suit for partition of joint property, a decree by consent amongst some only of the parties cannot possibly be maintain ed.....

96. In Vir Singh and Ors. v. Kharak Singh and Ors. reported in MANU/LA/0229/1924 : AIR 1925 Lah 280, all the proprietors had not assented to the compromise, Moti Sagar, J. observed:

...the alleged compromise not having been assented to by all the proprietors was clearly contrary to law and the Court was, therefore, fully justified in refusing to enforce it....

97. In Taraprasanna Sarkar and Anr. v. Kalikamohan Sarkar and Ors. reported in MANU/WB/0026/1923 : AIR 1924 Cal 80 Mookerjee and Rankin, JJ., held:

...There can be no compromise binding upon, all the parties to a partition suit until and unless all the parties have joined in the compromise:...

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Whether gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners void?

 Moreover, under Hindu Law, the gift/renunciation/relinquishment or alienation by one coparcener of his undivided coparcenary interest to another coparcener without consent of other coparceners is void.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 2913-2915 of 2018

Prasanta Kumar Sahoo and Ors.  Vs.  Charulata Sahu and Ors.

Hon'ble Judges/Coram:

A.S. Bopanna and J.B. Pardiwala, JJ.

Author: J.B. Pardiwala, J.

Decided On: 29.03.2023

Citation: MANU/SC/0326/2023.

Read full Judgment here: Click here

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Can the government acquire a person's land without paying compensation on oral consent?

  In the absence of written consent to voluntarily give up their land, the appellants were entitled to compensation in terms of law. The need for written consent in matters of land acquisition proceedings, has been noted in fact, by the full court decision of the High Court in Shankar Dass (supra) itself, which is relied upon in the impugned judgment.

23. This court, in Vidya Devi (supra) facing an almost identical set of facts and circumstances – rejected the contention of ‘oral’ consent to be baseless and outlined the responsibility of the State:

IN THE SUPREME COURT OF INDIA

 CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 2273 OF 2022 

 SUKH DUTT RATRA & ANR. Vs STATE OF HIMACHAL PRADESH & ORS.

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Supreme Court: Magistrate Has Power To Direct An Accused To Give Voice Samples During Investigation Without His Consent

In the light of the above discussions, we unhesitatingly take the view that until explicit provisions are engrafted in the Code of Criminal Procedure by Parliament, a Judicial Magistrate must be conceded the power to order a person to give a sample of his voice for the purpose of investigation of a crime. Such power has to be conferred on a Magistrate by a process of judicial interpretation and in exercise of jurisdiction vested in this Court under Article 142 of the Constitution of India.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.2003 OF 2012

RITESH SINHA Vs   STATE OF UTTAR PRADESH 

Hon'ble Judges/Coram:
Ranjan Gogoi, C.J.I., Deepak Gupta and Sanjiv Khanna, JJ.


Citation: (2019) 8 SCC 1

RANJAN GOGOI, CJI.

Dated:August 02, 2019. 

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Whether court can dispense with consent of landlord for renewal of trade licence for business to be carried on by tenant?

On the above legal issue, we may benefit by referring to the pronouncement in Sudhakaran v. Corporation of Trivandrum reported in [(2016) 14 SCC 263] where the Supreme Court on the issue of the renewal of a trade licence, stated that a tenant cannot be deprived of running a lawful business merely because the landlord withheld his consent, and further that, a valid tenancy itself has implied authority of the landlord for legitimate use of the premises by the tenant.

9. In the above case itself, the Supreme Court quoted with approval the ratio laid down by this Court in Marimuthu v. Director General of Police [1999 (3) KLT 662] where the following was recorded:—

“…………………………………………………………………………………………

16. A statutory tenant under the Kerala Buildings (Lease and Rent Control) Act can be evicted only as per the provisions of the said Act, on the grounds enumerated therein. Since the possession of the tenant is lawful, the landlord is not entitled to withhold his consent for the conduct of the business for which the premises were given on rent. In the instant case, we are satisfied that the landlord is purposefully and with malafide intention withholding consent inspite of the directions from this court. Under such circumstances, the Corporation also cannot insist upon production of written consent from the landlord for the purpose of issuance of licence for the conduct of business in the premises in question. For carrying on business in readymade dresses a licence issued under Sec.492 of the Kerala Municipality Act is necessary. As on date, the petitioner is not having any licence to carry on such business. A person in occupation can be allowed to carry on a trade or business which requires a licence, only after obtaining such licence. In view of the facts and circumstances of the case as above, we direct the Corporation of Thiruvananthapuram to consider Ext.P7 application for licence without insisting upon the production of a written consent of the owner of the premises and pass appropriate orders after giving an opportunity to the petitioners or their representative or their advocate, within two weeks from today. The petitioners are at liberty to file any further documents, if need be, before the Corporation authorities. The Corporation shall pass a reasoned order after hearing the necessary parties and communicate the same to the petitioners within two weeks from today. We make it clear that till such time the petitioners shall not conduct the textile business in the premises in question. Ext.P8 order of the Corporation of Thiruvananthapuram is set aside and Ext.P7 is restored to file for fresh consideration as directed above.”

………………………………………………………………………………………….”

10. In the facts of the present case what would have a bearing is that in the judgment of the Supreme Court, the necessity for dispensing with the requirement of providing consent from the landlord for considering the renewal of the trade licence in a situation where the relationship between the landlord and tenant are strained, was held to be applicable both in a situation where fresh application is applied or it is a case of renewal of a trade licence that is applied by the tenant. Therefore the direction to this effect issued in the impugned verdict would merit our approval.

In the High Court of Kerala at Ernakulam

(Before Hrishikesh Roy, C.J. and A.K. Jayasankaran Nambiar, J.)

W.A. No. 2426 of 2018

C.S. Babu  v.  C. Vijayan @ Raghavan,

Decided on December 14, 2018

Citation: 2018 SCC OnLine Ker 5783

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Whether some family members can challenge sale deed executed by one of their family member with their consent?

This Court is of the view that this agreement dated 22.6.1988 and family arrangement dated 1.8.1988 do not run counter to each other in substance. They supplement each other. Nothing contrary can be found from the agreement or the family arrangement. It appears from the record that Anand Kumar Nigam who was appointed as the President of the Executive Committee known as late Smt. Chanda Bai Nigam Smriti Sanstha Chanda Nagar entered into an agreement for sale of a portion of the property with the appellant No.5 and subsequently executed a sale-deed in favour of the appellant No.5. A perusal of the agreement would show that Anand Kumar Nigam claimed that he was executing this agreement in the capacity of the President of the Executive Committee aforesaid. However while signing the document he has stated that he was the Parivarik Karta. The agreement was endorsed and ratified subsequently by all the ten male members of the family who had also signed a family settelement. Therefore, apparently Anand Kumar Nigam was armed with an authority of all the male members to go ahead and execute the sale deed. Accordingly, appellant No.2 Anand Kumar Nigam executed the sale deed in favour of the appellant No.5 on 30.8.1990. Subsequently on 15.10.1990 a notice was sent by the respondents no.1 to 4 challangeing the sale-deed and cancelling the family arrangement. It is apparent from the conduct of the respondents No.1 to 4 that till the stage of execution of sale-deed they had no objection to the agreement and the family arrangement. It appears to this Court that they wanted to abide by the earlier agreements even when the appellant No.2 executed the agreement with appellant No.5. Otherwise there was no reason to say that they had consented to the document and signed. It is, therefore, difficult for this Court to hold that the earlier agreement or the family settlement could not authorise Anand Kumar Nigam to execute the sale-deed for the purpose for which family settlement was made and the agreement to the same effect was executed. In fact there is the equitable consideration that a person or a party acting upon the action of others cannot be permitted to jeopardise his own right when the persons giving express or implied consent changed their mind. In other words a sort of principle of estoppel would operate against the respondents No.1 to 4 to subsequently cancel the agreement or the family settlement unilaterally without any cause. Further the respondents No.1 to 4 cannot act to the detriment of the appellant No.5 because it had purchased the suit property by the sale-deed signed by the appellant No.2 Anand Kumar Nigam at the instance of the other male members of the family. The respondents No.1 to 4 did not object and therefore, they cannot turn around and say that the family arrangement was incorrect. Moreover, even if we hold that the action of appellant No.2 Anand kumar Nigam in transferring a portion of the property in dispute was illegal and unauthorised, the remedy lay in getting the sale-deed set aside rather than questioning the family settlement solemnly agreed to with a avowed purpose of houring Smt. Chanda Bai, the mother of the three elder members of the family.

IN THE HIGH COURT OF MADHYA PRADESH

M.A. No. 1334 of 1997 (J)

Decided On: 28.09.2000

Radhey Saran Nigam  Vs.  Smt. Jyoti Shrivastava & Ors.

Hon'ble Judges/Coram:

S.C. Pandey, J.

Citation: AIR 2001 NOC 116 MP

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Whether charge over property can be created without consent of other party?

 Charge over a property is by an act of party or operation of law, may be security for payment of money to another or by a decree of the Court. In order to create a charge by act of parties, consent is essential.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Writ Petition No. 5992 of 2004

Decided On: 31.08.2018

Sambhaji Maharaj Spinning Mill Pvt. Ltd.  Vs The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

S.V. Gangapurwala and S.M. Gavhane, JJ.

Citation: 2019(1) MHLJ 521

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Whether wife can prosecute husband if he is keeping unnatural sexual relationship with adult male?

The complainant has grievance against her husband,
who is a gay and kept sexual relations with male friends i.e., the
petitioner. The Supreme court in the case of Navtej Singh Johar &
Ors. vs. Union of India 1 W.P. (Cri.) Nbo.76 of 2016 & Others decided on 6.9.2018 has held section 377 of the Indian Penal
Code insofar as it criminalises consensual sexual conduct between
the adult of same sex, as unconsitutional. In the present case,
both were having an extra marital consensual sexual relationship.
Though it may be a ground for divorce on the ground of cruelty to
the complainant, it does not constitute offence under section 377
because both are adults and had sexual relationship by consent. In
this case, there is no victim. The complainant wife is an aggrieved
person but she cannot be called as a victim under section 377 of


the Indian Penal Code.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.4470 OF 2012

Daniel Crasto Vs. The State of Maharashtra 

CORAM: Mrs.MRIDULA BHATKAR, J.
DATED: JANUARY 30, 2019

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When prosecution for rape charges against husband is liable to be quashed?

SECTION 376B : Sexual intercourse by husband upon
his wife during separation
[Whoever has sexual intercourse with his own wife,
who is living separately, whether under a decree
of separation or otherwise, without her consent,
shall be punished with imprisonment of either description,
for a term which shall not be less than
two years but which may extend to seven years, and
shall also be liable to fine.
5.14 In the present case, unquestionably, there is
no decree of divorce in existence and it is also not
the case of the respondent no.2 that she had stayed
with the applicant against her will or consent when
he took her after the withdrawal of the suit. The
preceding application and her statement before the
Police Inspector, Mahila Police Station establishes
that she had accompanied the applicant willingly

after a compromise was arrived between them. She is
blissfully silent on the aspect of maintaining the
physical relationship against her will. Since there
was no separation and the respondent no.2 on her own
volition went with the applicant and stayed with him
after the settlement, it cannot be said that the
applicant had committed the offence under section
376(B) of the IPC. Having sexual intercourse during
such period of willful cohabitation does not amount
to having entering in physical relationship without
her consent. Thus, the allegations do not satisfy
the ingredients of section 375(B) of the IPC also.
5.15 The conspectus of the foregoing analysis and
observations is that none of the offences as recorded
in the impugned F.I.R. are established. It appears
that the same is filled with oblique motive and for
undue harassment and to wreck vengeance on the
applicant. Hence, the impugned F.I.R. is required to
be quashed and set aside by invoking the inherent
powers of this Court under section 482 of the Code.

IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 27669 of 2017

KALPESHPARI HASMUKHPARI GOSWAMI Vs STATE OF GUJARAT

CORAM: MR.JUSTICE A.S. SUPEHIA
Date : 08/01/2019

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Whether court can refer dispute to lok Adalat and for mediation without consent of parties?

 If the parties are not agreeable for either arbitration or conciliation, both of which require consent of all parties, the court has to consider which of the other three ADR processes (Lok Adalat, Mediation and Judicial Settlement) which do not require the consent of parties for reference, is suitable and appropriate and refer the parties to such ADR process. If mediation process is not available (for want of a mediation centre or qualified mediators), necessarily the court will have to choose between reference to Lok Adalat or judicial settlement. If facility of mediation is available, then the choice becomes wider. It the suit is complicated or lengthy, mediation will be the recognized choice. If the suit is not complicated and the disputes are easily sortable or could be settled by applying clear cut legal principles, Lok Adalat will be the preferred choice. If the court feels that a suggestion or guidance by a Judge would be appropriate, it can refer it to another Judge for dispute resolution. The court has to use its discretion in choosing the ADR process judiciously, keeping in view the nature of disputes, interests of parties and expedition in dispute resolution.


IN THE SUPREME COURT OF INDIA

Civil Appeal No. 6000 of 2010 (Arising out of SLP (C) No. 760 of 2007)

Decided On: 26.07.2010

Afcons Infrastructure Ltd. Vs.  Cherian Varkey Construction Co. (P) Ltd. and Ors.

Hon'ble Judges/Coram:

R.V. Raveendran and J.M. Panchal, JJ.

Citation: ( 2010 ) 8 SCC 24

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Whether divorce for mutual consent can be granted even if wife was not present at the time of second motion?

 Sub-section (2) requires the Court to hear the parties which means both the parties. If one of the parties at that stage says that "I have withdrawn my consent", or "I am not a willing party to the divorce", the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition, it negates the whole idea of mutualitly and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce underSection 13-B. Mutual consent should continue till the divorce decree is passed. It is a positive requirement for the court to pass a decree of divorce. "The consent must continue to decree nisi and must be valid subsisting consent when the case is heard". [See (i) Halsbury Laws of England, Fourth Edition Vol. 13 para 645; (ii) Rayden on Divorce, 12th Ed. Vol. 1 p. 291 and (iii) Beales v. Beales, [ 1972] 2 All E. R. 667 at 674 : (1972) 2 WLR 972).
15. In our view, the interpretation given to the section by the High Courts of Kerala, Punjab & Haryana and Rajasthan in the aforesaid decisions appears to be correct and we affirm that view. The decisions of the High Courts of Bombay, Delhi and Madhya Pradesh (supra)

cannot be said to have laid down the law correctly and they stand overruled. 

16. In the result, we allow the appeal and set aside the decree for dissolution of the marriage. In the circumstances of the case, however, we make on order as to costs.” which makes it apparent that in the absence of the continued mutual consent a decree of divorce under Section 13 B(2) of the Hindu Marriage Act, 1955 as amended cannot be granted as laid down in Smruti Pahariya Vs. Sanjay Pahariya and from the absence of one of the parties before the Trial Court, the presumption of consent for divorce cannot be attributed to that party as consent needs to continue till the date of the decree of divorce under Section 13B (2) of the Hindu Marriage Act, 1955 as amended and the Court has the statutory obligation to hear the parties to ascertain their consent which was clearly not done in the instant case, the appellant not even being present on the date 06.10.2007 i.e. the date of the decree of divorce granted through mutual consent.
IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of decision : October, 31st, 2018
MAT APP. 93/2007

TINA GUPTA Vs VISHAL GUPTA 

CORAM:
HON’BLE MS. JUSTICE ANU MALHOTRA

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Whether karta of family can sell ancestral property without consent of other coparceners?

In our considered opinion, a case of legal necessity for

sale of ancestral property by the Karta (Pritam Singh) was,

therefore, made out on facts. In other words, the defendants

were able to discharge the burden that lay on them to prove

the existence of legal necessity for sale of suit land to

defendant Nos. 2 and 3. The defendants thus satisfied the

test laid down in Hindu law as explained by Mulla in Article

254 (2) read with Article 241 (a) and (g) quoted above.

12

28) Once the factum of existence of legal necessity stood

proved, then, in our view, no coparcener

(son) has a right

to challenge the sale made by the Karta of his family. The

plaintiff being a son was one of the cocoparceners

along with

his father Pritam

Singh. He had no right to challenge such

sale in the light of findings of legal necessity being recorded

against him. It was more so when the plaintiff failed to prove

by any evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the defendants

to prove the factum of existence of legal necessity was either

insufficient or irrelevant or no evidence at all.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3264 OF 2011

Kehar Singh (D) Thr. L.Rs Vs Nachittar Kaur & Ors.

Dated: August 20, 2018

Abhay Manohar Sapre, J.

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Whether one party to divorce by mutual consent can withdraw his consent for divorce?

Adverting to the above principles of law it cannot be said that there was any legal bar for the petitioner to withdraw his consent as recorded in the pursis when the pursis referred that "both the parties have agreed to take divorce by consent." In any event if at all the parties were to maintain their consent for divorce as stated in the pursis, then the requirement of law was that the parties, would present an appropriate application by complying necessary requirements provided by Section 28 of the Special Marriage Act and seek a decree of divorce by mutual consent. However, before such an application/petition could be presented, the petitioner intended to withdraw his consent by the application on which the impugned order is passed. In my opinion, considering the aforesaid clear position in law there was no legal impediment for the petitioner to withdraw his consent as recorded in the pursis. The petitioner having withdrawn his consent, the necessary consequence would be that the family Court would be required to proceed and adjudicate the petition on the issue of divorce on all the grounds which are available to the parties. Thus, considering the requirement of law it was not proper and appropriate for the family Court to reject the application of the petitioner to withdraw the joint pursis dated 25 July 2015. The impugned order is manifestly illegal.

IN THE HIGH COURT OF BOMBAY

Writ Petition Nos. 12862 and 12863 of 2017

Decided On: 22.01.2018

 Vishal Nitinkumar Kondhia Vs. Jahnvi Vishal Kondhia

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Whether tenant is liable to evicted if he parts with possession of tenanted premises without consent of landlord?

(14)(4). For the purposes of Clause (b) of the proviso to Sub-section (1), any premises which have been let for being used for the purposes of business or profession shall be deemed to have been sub-let by the tenant, if the Controller is satisfied that the tenant without obtaining the consent in writing of the landlord has, after the 16th day of August, 1958, allowed any person to occupy the whole or any part of the premises ostensibly on the ground that such person is a partner of the tenant in the business or profession but really for the purpose of sub-letting such premises to that person.

This Sub-section provides that if a person is allowed to occupy the premises ostensibly as a partner of the tenant but really for the purpose of sub-letting it, such an arrangement would be deemed to be sub-letting. Therefore, if the tenant has allowed any person to occupy the whole or any part of the premises, actually for the purpose of sub-letting but speciously by entering into a partnership with him, such an arrangement shall be deemed to be subletting. In other words, subletting is not permitted by camouflaging it as a partnership.

The combined reading of Clause (b) of the proviso to Section 14(1) read with Section 14(4) makes it clear that before a tenant can sub-let, assign or part with the possession of any part of the premises or the whole, it must be preceded by the consent in writing from the landlord. In other words, the requirement of obtaining the consent in writing of the landlord is retained as a pre-requisite even for the purposes of Sub-section (4). What is of importance is, in either case whether a person has been inducted genuinely as a partner and therefore allowed to occupy the premises or whether the partnership is a ruse, the requirement of consent in writing as in Sub-section (1) is retained. In the present case, there is no evidence that the tenant obtained the consent in writing from the landlord before allowing the son-in-law to occupy the premises in pursuance of the Partnership deed.”

In view of the above, the appeal is allowed on the ground of parting of possession by the tenant/Respondent No.1 in favour of Respondent No.2 without consent of the landlord. The Respondents are directed to vacate the premises within two months from today.

 Non-Reportable

Supreme Court of India

Bhairon Sahai (D) Thr.Lrs. vs Bishamber Dayal (D) Thr.Lrs. . on 18 July, 2017

Bench: S. A. BOBDE J,L. NAGESWARA RAO J.
Citation: (2017) 8 SCC 492

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Whether permanent lok adalat can decide disputes on merit without consent of parties?

The predominant role, to be played by the Permanent Lok Adalat, is of a conciliator and not as a adjudicator. The Permanent Lok Adalat should not wear the robe of tire Court. If the Permanent Lok Adalat will decide the disputes, on merits, perhaps the parties will not go to the Permanent Lok Adalat. The Permanent Lok Adalat must offer the terms of settlement to the parties, looking to their wisdom and experience, as envisaged under Sub-section (7) of Section 22C of the Legal Services Authority Act, 1987 and also looking to the aforesaid decisions, rendered by this Court. The Permanent Lok Adalat should remain slow in deciding the dispute, on merits, unless the parties are made aware of the fact that to the proceedings of the Permanent Lok Adalat, the provisions of Indian Evidence Act, 1872 and the provisions of the Code of Criminal Procedure, 1908 are not applicable and the order, passed by the Permanent Lok Adalat is not an appellable order, as per the provisions of Section 22D of the Legal Services Authority Act, 1987 as also the provisions of Section 22E of the Legal Services Authority Act, 1987 and, thereafter, if the parties are giving their consent, in writing, then only, the Permanent Lok Adalat should venture in deciding the dispute, on merits, otherwise not. Once consent is given by the parties to the dispute, in writing, the Permanent Lok Adalat would decide the dispute, on merits, like an arbitrator. The arbitrator is a Judge privately appointed by the parties and the decision, rendered by the arbitrator, is known as an "award" and only on a limited ground, it can be challenged and not by way of an appeal. Looking to the scheme of the Legal Services Authority Act, 1987, enacted in pursuance of the provisions of Article 39A of the Constitution of India, it appears that the Predominant role of a Permanent Lok Adalat is to arrive at a settlement between the parties. For adjudication, there are several courts and several tribunals. It has been observed by this Court in several Motor Vehicle Accident Claim Cases also that the Permanent Lok Adalats are deciding the disputes, on merits, without there being any consent. It ought to be kept in mind that separate tribunals have already been constituted by law and the members of the Permanent Lok Adalats are sometime retired judges of the district court. Their ability of the judgment to the dispute is not to be checked as a member of the Permanent Lok Adalat. Their ability to arrive at a settlement will be appreciated by the law. Even though they are retired judges, they must remain slow in deciding the disputes, on merits, because they are sitting as a member of the Permanent Lok Adalat and not as a judge in any court.

IN THE HIGH COURT OF JHARKHAND AT RANCHI

Decided On: 25.02.2010

 Branch Manager, Tata AIG General Insurance Co. Ltd. 

Vs.

Mrs. Bandana Devi

Hon'ble Judges/Coram:

Dhirubhai Naranbhai Patel, J.

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Whether one coparcener can transfer his share in property by way of gift without consent of other coparcener?

  So far the gift deed is concerned, the defendants claimed
that the gift deed was executed by Laldas in their favour in May, 1971
and then he died in June, 1971. On the contrary, plaintiff’s case is that 
Laldas died in the month of May, 1971. It may be mentioned here that
the defendants have not claimed any counter claim for declaration of
the gift deed as valid. No issue was framed on this question but the
trial court recorded a finding that gift deed is a valid, legal and
genuine document. I have already held above that there had been no
partition between the parties and there is unity of title and possession,
so, the coparcener cannot transfer by way of gift his share without the
consent of other coparcener.
 (26) The Hon’ble Supreme Court in AIR 1987 Supreme
Court 1775 has held that gift by a coparcener of undivided share is a
void transaction. Since there was unity of title and possession between
the parties and there had been no partition, the so called gift deed,
even if executed by Laldas, is a void document and no valid title,
interest and possession will pass on the defendants.

IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.250 of 1976

Sabitri Devi & Ors. V Sri Lakhan @ Ramjiwan Prasad & Ors.

CORAM:  MR. JUSTICE MUNGESHWAR SAHOO

Date: 06-02-2017
Citation: AIR 2017 Patna 85

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What is difference between desertion and wilful separation?

 Hon'ble Apex Court in the case of Bipinchandra Jaisinghbai Shah versus Prabhavati, AIR 1957 SC 176 has observed that two essential conditions must be there to prove the desertion: (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Their Lordships have held that desertion is a matter of inference to be drawn from the facts and circumstances of each case. Their Lordships have held as under:

"What is desertion? "Rayden on Divorce" which is a standard work on the subject at p.128 (6th Edn.) has summarized the case-law on the subject in these terms:-

"Desertion is the separation of one spouse from the other, with an intention on the part of the deserting spouse of bringing cohabitation permanently to an end without reasonable cause and without the consent of the other spouse; but the physical act of departure by one spouse does not necessarily make that spouse the deserting party".

The legal position has been admirably summarized in paras 453 and 454 at pp. 241. to 243 of Halsbury's Laws of England (3rd Edn.), VoL 12, in the following words:-

"In its essence desertion means the intentional permanent forsaking and abandonment of one spouse by the other without that other's consent and without reasonable cause. It is a total repudiation of the obligations of marriage. In view of the large variety of circumstances and of modes of life involved, the Court has discouraged attempts at defining desertion, there being no general principle applicable to all cases. Desertion is not the withdrawal from a place but from the state of things, for what the law seeks to enforce is the recognition and discharge of the common obligations of the married state; the state of things may usually be termed, for short, 'the home'. There can be desertion without previous cohabitation by the parties, or without the marriage having been consummated. The person who actually withdraws from cohabitation is not necessarily the deserting party. The fact that a husband makes an allowance to a wife whom he has abandoned is no answer to a charge of desertion.

The offence of desertion is a course of conduct which exists independently of its duration, but as a ground for divorce it must exist for a period of at least three years immediately preceding the presentation of the petition where the offence appears as a cross-charge, of the answer. Desertion as a ground of divorce differs from the statutory grounds of adultery and cruelty in that the offence founding the cause of action of desertion is not complete, but is inchoate, until the suit is constituted. Desertion is a continuing offence". Thus the quality of permanence is one of the essential elements which differentiates desertion from wilful separation. If a spouse abandons the other spouse in a state of temporary passion, for example anger or disgust, without intending permanently to cease cohabitation, it will not amount to desertion. For the offence of desertion, so far as the deserting spouse is concerned, two essential conditions must be there namely, (1) the factum of separation, and (2) the intention to bring cohabitation permanently to an end (animus deserendi). Similarly two elements are essential so far as the deserted spouse is concerned: (1) the absence of consent, and (2) absence of conduct giving reasonable cause to the spouse leaving the matrimonial home to form the necessary intention aforesaid. The petitioner for divorce bears the burden of proving those elements in the two spouses respectively. 

Uttaranchal High Court

Mohan Singh Mawri vs Haripriya on 7 January, 2017

                                                              
Coram:Hon'ble Sudhanshu Dhulia, J.

             Hon'ble Rajiv Sharma, J.

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Precaution to be taken by matrimonial court prior to passing of decree for divorce by mutual consent

Considering these glaring facts and the dispensation of justice by the Family Courts, we would sound a note of caution to the learned Presiding Officers of the Family Court, that in matters where parties have sought a decree of divorce by mutual consent, a complete compliance of section 13-B read with section 23 (bb) in its letter and spirit is required to be followed, as also the compliance of the requirements thereof be noted in the final orders which would be pronounced.

23. In considering a petition for divorce by mutual consent under section 13-B of the Act, learned Judges of the Family Court shall hear the parties before a judgment is to be pronounced and also on consent terms/compromise, the parties may enter into, so as to  examine all the parameters of law touching the consent terms including reasonableness of the consent terms. Further it shall also be examined whether the consent is a free consent and the same is not in any manner influenced by fraud, coercion, undue influence as section 23 (i) (bb) would provide and accordingly observations be made and recorded in the judgment. Section 23 (1) (bb) contemplates a free consent. It is well settled that fraud is an act of deliberate deception with a design of securing something by taking advantage of another. It would be a deception to gain from another's loss and it would be cheating if intended to get an advantage. These are very crucial parameters which are required to be very meticulously considered by the Court before pronouncing the decree of divorce by mutual consent exercising jurisdiction under section 13-Bread with section 23 (1) (bb) of the Act. Only after such a procedure is followed there would be complete compliance of section 13-B and section 23

(i) (bb) of the Act.

24. We may also note that even if a petition under section 13-B of the Act is filed, sub section (1) thereof, contemplates a solemn statement that the parties were living separately for one year or more and they have not been able to live together and they have  mutually agreed that their marriage be dissolved with further requirement that after six months of the said Petition being presented, the Court is required to be satisfied after hearing the parties and after making an inquiry, as it thinks fit, to verify the correctness of the averments, only then the Court would proceed to pass a decree. Thus, it is clear, that mere filing of the Petition under section 13-B is no good. All requirements of sub-section (2) of section 13-B are required to be considered before a decree is pronounced on such a petition. The Court is required to be satisfied of the bonafides of the consent of the parties and if during the course of inquiry, the Court is of the opinion that there is real and mutual consent, the Court does not get the jurisdiction to pronounce a decree of divorce by mutual consent as held by the Supreme Court in Smt Sureshta Devi vs Om PrakashAIR 1992 Supreme Court 1904). Their Lordships in para 14 have observed thus:

" Sub-section (2) requires the Court to hear the parties which means both the parties if one of the parties at that stage says that 'I have withdrawn any consent" or I am not a willing party to the divorce" the Court cannot pass a decree of divorce by mutual consent. If the Court is held to have the power to make a decree solely based on the initial petition it negates the whole idea of mutuality and consent for divorce. Mutual consent to the divorce is a sine qua non for passing a decree for divorce underSection 13-B. Mutual consent should continue on the divorce decree is passed it is a positive requirement of the Court to pass a decree of divorce. The consent must continue to decree nisi and must be valid subsisting consent when  the case is heard. (See (I) Halsbury Laws of England Fourth edition Vol 13 para 645 (ii) Rayden on Divorce 12 th Ed Vol 1 pg 29 and (iii) Beales vs Beales (1972) 2 All ER 667 at pg 674 (1972) 2 WLR 972.)."

Bombay High Court

Mrs. Bharti Bhausaheb Aher vs Mr. Bhausaheb Kautik Aher on 6 January, 2017

Bench: A.S. Oka

 FAMILY COURT APPEAL NO.165 OF 2015 

Citation:2017 SCC OnLine Bom 7,2017(1) ALLMR497

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When court should not raise presumption of consent in case of Gang Rape?

Her
testimony that it took 5-6 minutes to accused Vijay to
convince her to accompany him to Vashisth bath could
have not been considered to arrive at a conclusion that
she was a consenting party to the sexual intercourse
committed by the accused person with her for the
reason that the said accused had asked to accompany
her to Vashisth bath and not Solang Nalla and she
consented only to accompany him and none else. She
may have agreed to accompany accused No. 5 as he
was known to her because as per her version, he offered
himself to solemnize marriage with her. How

accompanying voluntarily with a known person could be
taken to believe that she was a consenting party to
have sexual intercourse with such person; learned trial
Judge has failed to explain. When she never consented
to accompany other accused persons and even for the
commission of sexual intercourse with her by accused
Vijay, therefore, it is established that she objected to and
resisted such ghastly act committed upon her by the
accused persons. In view of evidence on record, her so
called consent was obtained by them under fear of her
own life, causing hurt to her.
38. As noticed hereinabove, the accused have
not denied that they have subjected the prosecutrix to
sexual intercourse. However, their defence is that since
they failed to pay money to her, she demanded from
each of them, therefore, it is for this reason, they have
been implicated in this case falsely. When it is proved
and held by us that she was not a consenting party and
rather subjected to sexual intercourse without her
consent and against her will, therefore, the plea so
raised is hardly of any help to them. It is well settled that

even a woman of easy virtue and for that matter a
prostitute cannot also be subjected to sexual intercourse
against her will and without her consent. Learned trial
Judge has failed to appreciate this aspect of the matter.
Instead of appreciating that nine males have sexually
assaulted a tender aged girl and holding them guilty of
the commission of offence, learned trial Judge has went
on to criticize the prosecutrix. Even if she was of easy
virtue could have never consented to have sexual
intercourse with this much number of persons (accused
herein) i.e., nine. Such an approach of learned trial
Court in this matter cannot be termed as legally and
factually sustainable. The present is a case where sole
testimony of the prosecutrix is sufficient to bring the guilt
home to the accused persons. The Apex Court in State
of Punjab V. Gurmeet Singh and others, AIR 1996 SC 1393
has held that own statement of the prosecutrix if inspires
confidence is sufficient to bring guilt home to the
accused persons.
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
 Cr. Appeal No. 264 of 2009
 Reserved on : 16.12.2016
 Decided on: 2nd March, 2017
State of H.P.
V
Raghubir Singh and others 
Coram
 Mr. Justice Dharam Chand Chaudhary, Judge.
 Mr. Justice Vivek Singh Thakur, Judge.

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Whether basic agreement can be disregarded on ground that parties were required to file consent terms?

The next contention as urged on behalf of the Respondents is
that the minutes cannot be accepted to be compromise inasmuch as the
parties   were   to   undertake   a   further   act   of   filing   consent   terms   and
therefore, the agreement as contained in the minutes cannot be regarded
as a conclusive agreement. We do not agree.   It cannot be accepted that

only because the parties were required to file consent terms, the basic
agreement as contained in the minutes of the meeting can be disregarded.
The filing of the consent terms was only consequence of the agreement
entered between the parties.  The agreement as contained in the minutes
however   remains   intact   and   undisturbed.     Its   existence   is   surely   not
dependent on the consent terms which the parties decided to file so as to
give   a   formal burial   to   the   disputes.     What   we   observe   is   that   the
agreement   was   intended   to   ultimately   end   the   litigation.     The   parties
accordingly acted upon the terms as contained in the agreement. Thus  as a
consequence of all these actions as also some other understanding not
necessarily touching the dispute  the parties agreeing to file consent terms
is no fetter.  There is nothing wrong in this approach.  The basic agreement
which is the foundation of the subsequent actions of the parties cannot bedenied by the parties. The law in this regard is well settled. The reliance in
this context on behalf of the Applicant to the decision of the Supreme Court
in the case   Kollipara Sriramulu (supra) is apposite.  The Supreme Court
has observed that a mere reference to a future formal contract will not
prevent a binding bargain between the parties.   The observations of the
Supreme Court in paragraph 3 read thus:­
“3. We proceed to consider the next question raised in these
appeals,  namely  whether  the  oral   agreement  was ineffective

because   the   parties   contemplated   the   execution   of   a   formal
document or because the mode of  payment of the purchase
money   was   not   actually   agreed   upon.   It   was   submitted   on
behalf of the appellant that there was no contract because the
sale was conditional upon a regular agreement being executed
and no such agreement was executed We do not accept this
argument as correct. It is well­established that a mere reference
to a future formal contract will not prevent a binding bargain
between   the   parties.   The   fact   that   the   parties   refer   to   the
preparation of an agreement by which the terms agreed upon
are to be put in a more formal shape does not prevent the
existence of a binding contract. There are. however, cases where
the reference to a future contract is made in such terms as to
show that the parties did not intend to be bound. until a formal
contract is signed. The question depends upon the intention of
the parties and the special  circumstances of each  particular
case. As observed by the Lord Chancellor (Lord Cranworth) in
Ridgway v. Wharton (1) the fact of a subsequent agreement
being prepared may be evidence that the previous negotiations
did not amount to a concluded agreement, but the mere fact
that persons wish to have a formal agreement drawn up does
not establish the proposition that they cannot be bound by a
previous   agreement   In   Von   Hatzfeldt­Wildenburg   v.
Alexander(1) it was stated by Parker, J. as follows : 
"It appears to be well settled by the authorities that if the
documents or letters relied on as constituting a contract
contemplate the execution of a further contract between
the parties, it is a question of construction whether the
execution of the further contact is a condition or term of
the bargain or whether it is a mere expression of the
desire   of  the   parties  as   to   the   manner  in  which   the
transaction already agreed to will in fact go through. In
the former case there is no enforceable contract either
because the condition is unfulfilled or because the law
does not recognize a contract to enter into a contract. In
the   latter   case   there   is   a   binding   contract   and   the
reference to the more formal document may be ignored.”

(emphasis supplied)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
Civil Application NO. 2433 OF 2015
AND
First Appeal NO. 780 OF 2009
Mr. Manoj Pransukhlal Sagar  
v
Indian Oil Corporation Ltd.
    CORAM :         ANOOP V. MOHTA &
    G.S.KULKARNI,    JJ.

Pronounced on     : 02nd September,2016.
Citation:2016(6) ALLMR568

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