Jharkhand HC: Whether the Motor accident claim tribunal can reject claim petition if all legal heirs of deceased are not added as party to proceeding?

Matter for consideration is whether all the heirs are a necessary party in a claim case. Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency. In Sarla Verma v. DTC, MANU/SC/0606/2009 : (2009) 6 SCC 12 it is held that if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant. The learned Tribunal thus committed a gross error to dismiss the claim application merely on the ground that the all the children of the deceased had not been impleaded. In any case any of the party or parties could have been impleaded as dependants and ordered accordingly. {Para 8}

 IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 223 of 2012

Decided On: 13.04.2022

Ugni Bibi Vs. Gobind Ram Hathampuria and Ors.

Hon'ble Judges/Coram:

Gautam Kumar Choudhary, J.

Citation: MANU/JH/0275/2022,2024(3) TAC 59 Jhar.

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Big Relief for Widows in Maharashtra: Court Fees Slashed - Reduction in maximum court fees from Rs. 75,000/- to Rs. 10,000/-

 2. In view of the requisition raised by the Testamentary Registrar, Ms. Chavan, Learned AGP, on instructions, submits that the State Government has issued a notification dated 9th August, 2024, which reads thus:

“Maharashtra Court Fees Act.

No. Mudrank-2023/C.R.641/M-1(Policy).- In exercise of the powers conferred by section 46 of the Maharashtra Court Fees Act (XXXVI of 1959), the Government of Maharashtra, hereby reduces the maximum limit of fees from Rs. 75,000/- to Rs. 10,000/-, payable by widows on probate of a will or letters of administration with or without will annexed, specified in Article 10 of the First Schedule appended to the said Act, to be filed in any Civil Court in respect of obtaining Heirship Certificate from the date of publication of this notification in the Official Gazette.”

3. In light of this, it is her submission that it should apply to all

widows in cases for application for probate, letters of administration, succession certificate and legal heirship certificate irrespectively. With this clarification, nothing further remains.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

TESTAMENTARY AND INTESTATE JURISDICTION

MISCELLANEOUS PETITION NO. 108 OF 2025

Subhadra Anant Kesarkar ...Petitioner

Rukmini Vithoba Khedekar ...Deceased

CORAM : ARIF S. DOCTOR, J.

DATE : 09 th  APRIL, 2025

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P & H HC: Whether Motor accident claim tribunal can reject claim petition if some of legal heirs are not added as party to the proceeding?

A bare perusal of the above-mentioned provision shows that where the death has resulted from the accident, the application for compensation may be filed by all or any of the legal representatives of the deceased. {Para 12}

13. Learned Claim Tribunal while deciding the claim petition adjudicated upon the petition like a trial where principles of Code of Civil Procedure are strictly applied, whereas it failed to appreciate the very fact that as per Section 166 of the Motor Vehicles Act, 1988, once the application for compensation is filed before it, the claim should not be dismissed for non joinder of party.

14. In the present case only because the mother was not impleaded as party, the claim petition of the appellant was dismissed.

15. Learned Single Judge of this Court in FAO No.120 of 2003 titled as New India Insurance Company Vs. Janak decided on 12.07.2010 held as under:-

"3. Even the issue of whether a non-impleadment of all legal representatives would be material, has been considered literally by all High Courts including this Court where the consistent line of authority is that such a defect will not have a bearing to the maintainability of the petition. The law does not require that all the legal representatives of a deceased should be impleaded in a claim petition. In a given situation, where all the representatives are not impleaded, an opportunity shall be given to the claimants to implead the legal representatives not so impleaded. If on the other hand, the proceedings has gone without impleadment of them, it should be seen whether the persons who have not been impleaded were required to be impleaded and whether the claimant could be treated as trustee for all others as well. One method of ensuring that all the legal representatives take the benefit of the award would be to array the legal representatives, who are not impleaded as respondents. Another situation could be when the claimant amongst several persons is the only person, who is deprived of his dependence by the death and other siblings are not in any way affected since they had their own means of support. In a typical Indian social setting, it could be that the younger brother would be dependent on particular brother while there could be other major brothers, who had independent sources of income by their own earning and they did not depend on the brother who died. All this is only to state that there could be several instances where to show that the mere absence of all the legal representatives on the one side figuring as petitioners or respondents is not a sine qua non for considering the maintainability of the petition."

 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

FAO-3516-2006 (O&M)

Decided On: 22.03.2024

Kaushal and Ors. Vs. Raj Kamal and Ors.

Hon'ble Judges/Coram:

Sudeepti Sharma, J.

Citation: MANU/PH/2083/2024,2024: PHHC:052973.

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Jharkhand HC: Whether motor accident claim petition can be rejected on the ground that some of legal heirs of deceased are not added as party to the petition?

 Matter for consideration is whether all the heirs are a necessary party in a claim case. Compensation is assessed on the basis of dependency and not on heirship. Only those who are the dependents shall be entitled to compensation. The entire concept of computation of compensation arising out of the death is based on calculation of the amount on dependency. In Sarla Verma v. DTC, MANU/SC/0606/2009 : (2009) 6 SCC 12 it is held that if the deceased is survived by parents and siblings, only the mother would be considered to be a dependant. The learned Tribunal thus committed a gross error to dismiss the claim application merely on the ground that the all the children of the deceased had not been impleaded. In any case any of the party or parties could have been impleaded as dependants and ordered accordingly. {Para 8}

IN THE HIGH COURT OF JHARKHAND AT RANCHI

M.A. No. 223 of 2012

Decided On: 13.04.2022

Ugni Bibi Vs. Gobind Ram Hathampuria and Ors.

Hon'ble Judges/Coram:

Gautam Kumar Choudhary, J.

Citation: 2024(3) TAC (Jhar), MANU/JH/0275/2022.

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Whether legal heirs have right to file fresh motor accident claim petition after death of injured even though petition filed by him for injury claim is pending?

Here in this case, the claimants, as legal heirs and representatives, have filed a subsequent claim petition while the original was still pending, the right to sue arose on the death of the original claimant and survived on the date when subsequent claim petition was filed. As was held in the case of Surpal Singh (supra), maxim action personalis mortiur cum persona cannot be imported to defeat the purpose and the object of a social welfare legislation of the M.V. Act to give advantage to the wrong doer. Once the status of the claimants as legal heirs or legal representatives are conceded and acknowledged, to deny benefit of compensation, on the ground that injury was personal to the claimant, will be giving a premium to the wrong committed, which would itself defeat the very purpose and object of the legislation. The subsequent petition was filed at the time when the original petition was yet pending. It is not the case that the original petition filed by the original injured came to be dismissed as abated. The cause of action still survived on the day when MACP no.292/17 was filed. The only diversion made by the petitioners is filing of MACP no.292/17 by paying extra Court fees. Thus, the registration number of the petition stood to be different than that of the original and subsequently, the original petition was withdrawn. So filing of another petition on the cause of action, which arose on the death of the injured would be maintainable under Section 166(1). {Para 23}

(c) of the M.V. Act.

 GUJARAT HIGH COURT

Jiteshkumar Rajubhai Parmar vs Bhavnaben Dilipbhai Vyas on 6 April, 2023

C/SCA/6993/2019

Author: Gita Gopi

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Kerala HC: Notice Issued Against Dead Person Is Invalid; Participation Of Legal Heirs In Proceedings Doesn't Make It Legal

 Upon hearing the rival submissions of the parties, we are of the view that the Appeal must succeed. The precedents referred above would make it amply clear that the notices issued under Sections 148A(b) and 148 of the Act in the name of a dead person are invalid and 'non-est' in the eye of law. It is a nullity and not a mere irregularity which could be cured. It is true that, on the receipt of the above said notices, the legal heirs of the deceased Naringaparambail Bhaskaran/appellants herein appeared before the assessing authority. However, that by itself would not change the situation. We are of the opinion that the consent of the parties cannot confer jurisdiction to the assessing authority for initiation of an action which is otherwise illegal and 'non-est'.{Para 20}

21. In the light of the above discussions, we cannot agree with the view taken by the learned Single Judge that the legal heirs of the deceased assessee are estopped from taking a different stand in the writ petition, since they have appeared before the assessing authority and participated in the proceedings. Therefore, we are of the view that the initiation of proceedings against a dead person under Sections 148A(b) and 148 of the Income Tax Act are illegal and 'non-est'.

 IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 2093 of 2023

Decided On: 29.11.2024

N. Binoj and Ors. Vs. Income Tax officer, Ward-2, Tirur and Ors.

Hon'ble Judges/Coram:

Dr. A.K. Jayasankaran Nambiar and K.V. Jayakumar, JJ.

Author: K.V. Jayakumar, J.

Citation: MANU/KE/4803/2024.

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Kerala HC: Legal representatives of deceased are not entitled to claim compensation u/s163­A of the Motor vehicles Act.

  Under Section 163A, the persons who are entitled to apply for compensation are the legal heirs, in the case of death of a person and in the case of injury, the victim. Once a claim is made under Section 166 of the Motor Vehicles Act, then application for compensation can be filed by the persons enumerated in the section, namely the person who sustained injury, by the owner of the property, where the death has resulted from the accident, by all or any of the legal representatives of the deceased, or by any agent duly authorised by the person injured or all or any of the legal representatives of the deceased, as the case may be. There is wide difference in the words used in both the sections regarding the persons entitled to apply for compensation in the case of death of a person, who died in a motor vehicle accident. Under Section 166, in the case of death, the persons entitled to claim compensation are the legal representatives of the deceased. But in the case of a claim under Section 163A, the persons entitled to claim compensation are the legal heirs. Further, in the case of 166, even if, a person is not a legal heir, if he is able to prove that, he/she is a dependant of the deceased, then irrespective of the fact, whether he/she is a legal heir or not, is entitled to claim compensation, in proportion to the extent of dependency claimed by him/her. In such cases, the dependency will have some relevance for the purpose of assessing compensation. But for a claim under Section 163A, the dependency has no relevancy, because the persons who are entitled to file an application for compensation for the death of the deceased are the legal heirs and not the legal representatives. Once it is proved by the appellants that, they are legal heirs of the deceased then, in a claim under Section 163A, they are entitled to claim compensation for the death of the deceased. Legal representatives include legal heirs as well and not vice versa.{Para 6}

IN THE HIGH COURT OF KERALA

M.A.C.A. No. 896 of 2008

Decided On: 18.10.2013

Kadeeja and Ors. Vs. Managing Director, KSRTC, Tvm and Ors.

Hon'ble Judges/Coram:

S. Siri Jagan and K. Ramakrishnan, JJ.

Author: K. Ramakrishnan, J.

Citation: 2014 ACJ 1492 (Ker)­, MANU/KE/1078/2013.

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A claim petition u/s 166 of MV Act can be preferred by legal representative of deceased whereas, a claim petition u/s 164 can be preferred by legal heirs of deceased only

As per Section 166(1)(c) of the Act legal representative of the deceased can prefer a claim petition u/s 166 of the M V Act. Whereas, Section 164 can be preferred by the legal heirs of the deceased. There is  difference in the provisions contained u/Ss 166 and 164 of the M V Act. As stated hereinabove a claim petition u/s 166 can be preferred by the legal representative of the deceased whereas, a claim petition u/s 164 can be preferred by the legal heirs of the deceased only.

 164. Payment of compensation in case of death or grevious hurt, etc.—(1) Notwithstanding anything contained in this Act or in any other law for the time being in force or instrument having the force of law, the owner of the motor vehicle or the authorised insurer shall be liable to pay in the case of death or grievous hurt due to any accident arising out of the use of motor vehicle, a compensation, of a sum of five lakh rupees in case of death or of two and a half lakh rupees in case of grievous hurt to the legal heirs or the victim, as the case may be.

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Under which circumstances second motor accident claim petition filed by legal heirs of deceased claimant is not barred by res judicata?

To our understanding of the situation, the claimants subsequent to the death of S. Gangadhara by not amending the petition to make claim under the heads of loss of dependency, loss of love and affection, loss of consortium did not commit any error. This claim made in the present case is independent of the other claims made by them in M.V.C. No. 109/2002. It was a new cause of action that arose for them subsequent to the death of S. Gangadhara and not earlier to it. Hence, we are of the firm opinion that the claim made in the present petition could not have been made in the earlier petition filed by the injured himself Hence, the question of constructive res judicata has no vital role in the present petition. {Para 16}

17. The Motor Vehicles Act being a Social Legislation, the technicalities and the niceties of the Civil Procedure Code cannot allowed to be raised in order to defeat the purpose of the very Act. The Act was enacted for the purpose of enforcing the principles of social justice. The observation of the Tribunal that the claimants could have amended their claim petition in M.V.C. No. 109/2002 and claimed compensation in respect of loss of dependency, loss of love and affection and loss of consortium, in our considered opinion, such amendment would have enlarged the scope of the petition, which was filed for a cause of action falling under Section 166(1)(a) of the M.V. Act, 1988 and the nature of the proceedings by such amendment if allowed would have shifted from Section 166(1)(a) to 166(1)(c) of the Act. Wherefore, we hold that filing of the second claim petition consequent upon the death of the injured S. Gangadhara was maintainable. In similar circumstances, the Coordinate Bench of this Court in the matter of Smt. Prabha and Others v. Sri. P.L. Nagesh and Others in M.F.A. No. 1271/2005 (MV) D.D. 8.6.2010 have taken a similar view by setting aside the order of dismissal of the second claim petition passed by the Tribunal under the ground of res judicata. There was no legal bar for the claimants herein to file second petition on the cause of action arising for them on the death of the injured during the pendency of M.V.C. No. 109/2002.

 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

Misc. First Appeal No. 10280/2013 (MV)

Decided On: 26.06.2015

V. Anitha Gangadhara and Ors. Vs. S. Srirama Reddy and Ors.

Hon'ble Judges/Coram:

N.K. Patil and Rathnakala, JJ.

Author: Rathnakala, J.

Citation: MANU/KA/1621/2015,2016 ACJ 790 (Kar).

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What changes Hindu Succession Amendment Act 2005 has brought regarding distribution of property among the legal heirs?

 The Hindu Succession Act, which governs the distribution of property among Hindus in India, has undergone several amendments to bring about gender equality and address other issues. The concepts of "per capita" and "per stripes" are related to the distribution of property among the legal heirs.

1. Per Capita Distribution:

   • In a per capita distribution, the estate is divided equally among all the living members of a particular generation.
   • Each member of the generation receives an equal share, irrespective of their individual needs or the number of children they may have.
   • This method is used when the distribution is to be made among individuals of the same generation.

2. Per Stirpes Distribution:

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Can the Motor accident claim tribunal direct police to Exhume the dead Body for DNA Test to ascertain that claimants are legal heirs of the deceased?

The present petition under Article 227 of the Constitution of India preferred by the legal heirs of Mr. Sujaat Ali assails the order dated 15.12.2023 passed by the learned Motor Accident Claim Tribunal. Vide the impugned order, the learned Tribunal has, after taking into account the Detailed Accident Report (DAR) filed by the Investigating Officer, directed that the grave of Mr. Sujaat Ali be dug up and a DNA test be performed on his body to verify whether the petitioners are his legal heirs, as claimed by them.

7. Having considered the submissions of the parties, this Court is prima facie unable to appreciate this stand taken by the respondent no.4 or the approach adopted by the learned Tribunal. Once a further investigation by the Police Authorities has already been directed, the impugned directions for digging up of the grave of a dead person to carry out a DNA test, were in my view wholly unwarranted. It appears that the learned Tribunal has failed to appreciate that the DNA test cannot be ordered in such a routine manner. In this regard, reference may be made to a recent decision of the Apex Court in SLP (C) No. 9855/2022 titled Aparna Ajinkya Firodia v. Ajinkya Arun Firodia.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CM(M) 298/2023, CM APPL. 9122/2023 -Stay.

SUJAAT ALI (DECEASED) THROUGH LRS  Vs GOVERNMENT OF N.C.T OF DELHI & ORS. 

CORAM:

HON'BLE MS. JUSTICE REKHA PALLI

Dated:  24.02.2023

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Whether legal heirs of injured claimant can claim hospital and medicine charges after his death under motor vehicle Act?

 We see no reason to deviate from the consistent judicial view taken by more than one High Court that loss of estate would include expenditure on medicines, treatment, diet, attendant, Doctor's fee, etc. including income and future prospects which would have caused reasonable accretion to the estate but for the sudden expenditure which had to be met from and depleted the estate of the injured, subsequently deceased. {Para 20}

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 4800 of 2021 

Decided On: 16.08.2021

 The Oriental Insurance Company Limited  Vs. Kahlon (Deceased) through his Legal Representative Narinder Kahlon Gosakan and Ors.

Hon'ble Judges/Coram:

Navin Sinha and R. Subhash Reddy, JJ.

Author: Navin Sinha, J.

Citation: MANU/SC/0531/2021,AIR 2021 SC 3913

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Whether the court can revoke letter of administration if all legal heirs are not made parties to the suit?

  As per Section 263, the grant of Letters of Administration may be revoked for “just cause”. Explanation (a) under Section 263 states that just cause shall be deemed to exist where the proceedings were defective in substance. Illustration (ii) under Section 263 deals with a case where “the grant was made without citing parties who ought to have been cited”. {Para 6}

7. It may be of interest to note that some of the colonial statutes contain Illustrations which form part of the statutes themselves. The Indian Succession Act, 1925 is one such enactment.

8. Therefore, the High Court was right in holding that a just cause existed for revoking the grant. Hence, we do not find any error in the order of the High Court warranting our interference. Therefore the appeals are dismissed.

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 798-799 OF 2013;

SWAMINATHAN & ORS. Vs ALANKAMONY (DEAD) THROUGH LRS.

Coram: HEMANT GUPTA; V. RAMASUBRAMANIAN, JJ.

Dated: 9 March, 2022

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Is the sale deed executed by the deceased defendant's son invalid by the doctrine of lis pendens even if he was not added as a party to suit within limitation?

LIS PENDENS

92. The Doctrine of Lis Pendens is based on the maxim “pendente lite nihil innovetur”. This means that pending litigation, nothing new should be introduced. Section 52 of the Transfer of Property Act, 1882 (for short, ‘the TP Act’), which incorporates the Doctrine of Lis Pendens, is based on equity and public policy. It pours complete efficacy to the adjudicatory mechanism. This is done by finding that any disposition of property, as described in the Section by a party to the litigation will, in not any way, detract from the finality of the decision rendered by the court. It is clear that it is not based on the ground of Notice as laid down by Lord Craanworth in Bennamy v. Sabine, which has been followed by the Privy Council in the decision in 34 Indian Appeals 102. We may notice the following discussion in this regard in “The Transfer of Property, by Mulla, 12th Edition:
“The rule is, therefore, based not on the doctrine of notice, but on expediency, ie, the necessity for fine adjudication. It is immaterial whether the alienee pendente lite had, or had not, notice of the pending proceeding. This is, of course, no longer the case in England, or in Gujarat and Maharashtra, where the doctrine only affects transactions pendente lite if the lis has been duly registered.”

93. It is further important to notice that when a transaction is done, lis pendens or pending a case, the transaction is, as such, not annulled. The transaction is, in other words, not invalidated. In fact, as between the transferor and the transferee, it does not lie in the mouth of the transferor to set up the plea of lis pendens to defeat the disposition of property. Equally, the Principle of Lis Pendens is, not to be confounded with the aspect of good faith or bonafides. In other words, the transferee or the beneficiary of the property, which is disposed of by a party, cannot set up the case that he acted bonafide or in good faith. This enables the court and the parties in a Suit or a proceeding, which otherwise is in conformity with requirements of Section 52, to proceed in the matter on the basis that the adjudication by the court, will not, in any way, be subverted or delayed, when the day of final reckoning arrives.

94. In fact, the Special Bench of the Madras High Court in Manjeshwara Krishnaya v. Vasudeva Mallya and Four Others, AIR 1918 Madras 578, puts the Doctrine of Lis Pendens as an extension of the Doctrine of Res Judicata. Thus, the sine qua non for the Doctrine of Lis Pendens to apply is that the transfer is made or the property is otherwise disposed of by a person, who is a party to the litigation. The Doctrine of Lis Pendens, only subject, however, the transfer or other disposition of property to the final decision that is rendered. The person/party, who finally succeeds in the litigation, can ask the court to ignore any transfer or other disposition of property by any party to the proceeding. This is subject to the condition that transfer or other disposition is made during the pendency of the lis. 95. The first defendant died pending the Suit on 06.08.1994. Her death was reported before the Court on 16.01.1995. The plaintiff brought on record, the husband of the first defendant by Order dated 25.08.1995, as defendant No. 1(a). Defendant No. 1(b), who is the son of the second defendant, sold the property on 19.09.1996, in favour of the appellant. It is thereafter that on 09.04.1997, the predecessor in interest of the appellant, viz., the son of the first defendant, and the second defendant were impleaded on 09.04.1997. The transfer made in favour of the second defendant was, therefore, made at a time, when the son of the first defendant was not a party to the Suit. Therefore, it is that the contention was taken before the Trial Court successfully by appellants that the transfer in favour of the appellant was not hit by Doctrine of Lis Pendens.

96. The High Court in the impugned Judgment reversed this finding. The High Court, in doing so, employs, inter alia, the following reasoning:
“78. The position of law with regard to the rights and obligation of a dead person can be succinctly stated thus: The rights which a dead man thus leaves behind him vests in his representative. They pass to some person whom the dead man, or the law on his behalf, has appointed to represent him in the world of the living. This representative bears the person of the deceased, and therefore, has vested in him all the inheritable rights, and has imposed upon him all the inheritable liabilities of the deceased. Inheritance is in some sort a legal and fictitious continuation of the personality of the dead man, for the representative is in some sort identified by the law with him whom he represents. The rights which the dead man can no longer own or exercise in propria persona, and the obligations which he can no longer in propria persona fulfil, he owns, exercises, and fulfils in the person of a living substitute. To this extent, and in this fashion, it may be said that the legal personality of a man survives his natural personality, until, his obligations being duly performed, and his property duly disposed of, his representation among the living is no longer called for. Just as many of a man's rights survive him, so also do many of his liabilities; and these inheritable obligations pass to his representative, and must be satisfied by him. As far as the estate of a dead man is concerned, there are two class of persons who are entitled to it, namely, creditors and beneficiaries. A beneficiary possesses a dual capacity, while he may benefit by inheriting the dead man's estate is also liable to the dead man's obligations. He survives even after his death, especially the obligations concerning immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald). Section 2(11) of the Code of Civil Procedure, 1908 (CPC) defines legal representative to mean a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of • the party so suing or sued. The aforesaid definition is both exhaustive as well as an inclusive definition. It is exhaustive in the sense that a legal representative means a person who in law represents the estate of immovable property. The beneficiaries who are entitled to the residue after satisfaction of the creditors, are of two classes: (1) those nominated by the last will of the deceased and (2) those appointed by the law in default of any such nomination. They succeed respectively by testamentary succession (ex testamento) or intestate succession (ab intestate) (source: Salmond on Jurisprudence Twelfth Edition, P.J. Fitzgerald).”

97. Thereafter, the High Court proceeded to consider the distinction between a legal representative as defined in Section 2(11) of the Code of Civil Procedure, 1908 and legal heirs. Still further, the Court also considered the scheme of Order XXII of the CPC and finally proceeds to find as follows:
“79. … Even though defendant No. 1(b) was not arrayed along with his father as a legal heir of the deceased defendant No.1, the fact remains that the estate of defendant No.1, which also includes the suit schedule property was represented through defendant No. 1(a), the husband of defendant No.1. Therefore, the contention that the sale that was made by defendant No. 1(b) in favour of defendant No.2 when defendant No. 1(b) was not a party to the suit is not subject to any direction that may be issued in the suit, and that Sec. 52 of the Act would not apply in the instant case is not a correct understanding of the position of law. Further, in the instant case, defendant No.1(a) also did not inform the trial court that his son was also a legal representative of deceased defendant No.1 and therefore, he also ought to be brought on record as the heir of the deceased defendant No.1 when the application was filed by the plaintiff to bring only him on record as legal heir of deceased defendant No.1. Therefore, it is held that in ' the instant case, the estate of the defendant No.1 was represented through defendant No.1(a) in the suit and that the alienation made by defendant No.1(b) to defendant No.2, even in the absence of defendant No.1(b) being made a party to the suit has no significance.

The High Court has relied on the decision of the Madras High Court in Nallakumara Goundan v. Pappayi Ammal and Another, AIR 1945 Mad 219. In the said case, after the death of the party, a legal representative disposed of the plaint schedule property within the period provided for substituting the dead person with the legal representative. It was in the said context held by the Madras High Court as under:
“…The same principle should, I think, apply to a case where as here the original defendant died and the alienation was made after his death and before the filing of the application to bring his legal representative on record. The suit must be deemed to be pending against the legal persona of the deceased i.e., against his legal representative and must be deemed to continue until at least the expiration of the time limited by any law of limitation to bring him on record. Whether if an application is made long after the expiration of the time fixed for bringing the legal representative on record and an alienation is made by the legal representative and later on the plaintiff in the action seeks to set aside the abatement and to bring the legal representative on record, and that is ordered, the doctrine of lis pendens applies or not does not arise and need not be considered. There may be difficulties in such a case, but where the alienation is made within the time prescribed for bringing the legal representative on record, it is a clear case and there can be no doubt whatever that the rule does apply…”

98. Thereafter, the Court concluded that in the circumstances, Section 52 of the TP Act squarely applied.

99. It would appear that the High Court has, in arriving at the finding that the transfer in favour of the appellant is hit by lis pendens, taken into consideration the Doctrine of Notice/Constructive Notice. We have already observed that the Doctrine of Notice and Constructive Notice would be inapposite and inapplicable. Neither the fact that the transferee had no notice nor the fact that the transferee acted bonafide, in entering into the transaction, are relevant for applying Section 52 to a transaction. This is unlike the requirement of Section 19(1)(b) of the Specific Relief Act whereunder these requirements are relevant.

100. The decision of the Madras High Court in Nallakumara Goundan (supra) turned on in its own facts as indicated by the said court itself. In other words, that was a case where even within the period of limitation for substitution of the legal representative of a deceased party in a suit, the legal representative purported to deal with the property. It was in the said context that the court proceeded to hold that lis pendens would apply. In this case the transfer in favour of the second defendant took place on 16.09.1996. The vendor and the vendee namely defendant 1(b) and the second defendant were not parties on the date of the transaction. They were impleaded only almost one year thereafter. No doubt we are not oblivious to the role played by defendant 1(a) namely the husband of the first defendant who gave his ‘no objection’ to the assignment of the entire rights in favour of his son namely defendant 1(b) without which BDA could not have assigned the right in favour of defendant 1(b). Though not urged by the plaintiff, could it be said that as defendant 1(a) was already a party and this must be treated as a case were defendant 1(a) as ‘otherwise dealt’ with the property within the meaning of Section 52 without which the title would not vest in defendant 1(b). A transfer which is made lis pendens it is settled law, is not a void document. It does create rights as between the parties to the sale. The right of the party to the suit who conveys his right by a sale is extinguished. All that Section 52 of the Transfer Property Act provides is that the transfer which is made during the pendency of the proceeding is subjected to the final result of the litigation. Even assuming for a moment that the conduct of defendant 1(a) the father of defendant 1(b), in giving a no objection and thereby enabling defendant 1(b) to derive the title exclusively to the property and which title stood conveyed to the second defendant attracted, the principle of lis pendens, it would still not invalidate the sale. At best, the plaintiff can contend that, should he be entitled for a decree of performance the sale in favour of the second defendant should be subjected to such decree. As far as the transfer is made by defendant 1(b) to the second defendant in his own right and in so far as defendant 1(b) was not a party and by the time the sale was effected the period of limitation for impleading defendant 1(b) had already clearly expired even the principle laid down in the decision of the Madras High Court would not apply and the High Court was not correct in finding that the sale by defendant 1(b) in favour of second defendant was hit by lis pendens. 

Supreme Court

JUSTICE K. M. JOSEPH JUSTICE PAMIDIGHANTAM SRI NARASIMHA

G. T. GIRISH Vs. Y. SUBBA RAJU (D) BY LRs. & ANR.

CIVIL APPEAL NO. 380 OF 2022

18th January 2022

Author: K. M. JOSEPH, J.

Citation: 2022 ALL SCR (ONLINE) 53

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Whether legal heirs of a government servant can avoid their eviction from official residence saying that said accommodation is not dilapidated?

Moreover, petitioners claim their

occupation over the tenements from the Government,

pursuant to they or their predecessors to be in

Government service. The tenement was a facility

provided to them in service for accommodation. The

petitioners or their predecessors are claiming

their occupation over the tenements from the

Government. They do not have any right to deny the

title of the Government from whom they were

inducted in possession nor any other entity or a

persons is claiming a better title than the

Government. It is futile to enter into the debate

in this regard. The person who is inducted in

possession cannot deny the title of a person who

has inducted him in occupation, unless the person

inducted in occupation claims a better title. It

is also to be noted that, as far as the issue of

ownership of the Government is concerned the same

has been set to rest in the earlier judgments.

There is no reason to again enter into the

rigmarole of the ownership right. Nonetheless,

petitioners are not claiming ownership rights nor

they can claim ownership over the tenement in their

occupation. In light of the above, it is not open

for the petitioners to deny the ownership right of

the Government.

24. The petitioners have also emphasised much

upon the legality of public notice under Section

264 and 265-A of the Act, 1949. The Division Bench

of this Court in case of Municipal Corporation of

Greater Mumbai Vs. State of Maharashtra (supra) and

another judgment in case of Mr. Jaswant Shivlal

Chandarana and Anr. Vs. State of Maharashtra

(supra) has laid down the guidelines of the manner

in which the structural audit has to be based. In

the present case, petitioners do not have any right

to retain the occupation of the tenements. The

person who does not get a right to occupy and

remain in possession of a tenement does not have

locus to assail the impugned notices on the ground

that the procedure and the test required as per the

guidelines of the Division Bench of this Court in

case of Municipal Corporation of Greater Mumbai Vs.

State of Maharashtra (supra) are not performed. The

Government and Corporation have also placed on

record reports issued by the Department of the

Applied Mechanics, Government Engineering College,

Aurangabad. We may not enter into the said

aspects, as in our opinion petitioners would not

have any legal right to agitate against the same.

The petitioners do not have legal right to continue

occupying tenements having suffered earlier

adjudication.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.12527 OF 2021

 Dinker s/o Bhaburao Lokhande Vs The State of Maharashtra

CORAM : S. V. GANGAPURWALA &

R. N. LADDHA, JJ.

Dated : 20.01.2022.

 (Per S. V. Gangapurwala, J.) :-

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Whether legal heirs of a woman can claim monetary relief under the Domestic violence Act after her death?

Herein, the petitioners do not claim

themselves to be “aggrieved person” but would assert

their right to present an application under Section 12 of

the D.V. Act on behalf of the deceased, who according to

them, was an “aggrieved person”. Therefore, in essence,

petitioners were seeking enforcement of personal rights

of deceased, Suchita, which she had not sought in her

lifetime. In the backdrop of facts aforestated, the rights

sought to be enforced by the petitioner, by presenting an

application under Section 12 of the D.V. Act, was clearly

not maintainable for the following reasons :

(i)the right to claim monetary reliefs,

protection order and compensation under the

D.V. Act, are personal-statutory and inalienable

rights of the “aggrieved person”. These rights

extinguish on the death of “aggrieved person”.

For that reason, such rights were not

enforceable by legal representatives of

“aggrieved person”.

(ii) expression “aggrieved person” has to be

understood and given restrictive meaning, in

view of the Statement and Object and Reasons

of the Act. Defined expression “aggrieved

person” is not inclusive and thus by process of

interpretative explanation, its scope cannot be

expanded like suggested by the petitioners, as

it would counter the Scheme and Object of the

Act and would defeat the intention of

legislation.

(iii) although “any other person” can present

an application under Section 12 of the D.V. Act,

on behalf of “aggrieved person”, nevertheless,

such “other person” cannot maintain an

application independently of an “aggrieved

person”. Infact, Section 12 of the D.V. Act,

simply enables, the “aggrieved person” to

present an application under the Act through

“any other person”. That being the Scheme of

the Act, “aggrieved person” must be living

(alive), while presenting the application.

. Therefore, petitioners attempt to claim rights

through deceased, Suchita, not being acknowledged by

the provisions of the D.V. Act, application has been

rightly rejected by the trial Court and Appellate Court.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

WRIT PETITION NO. 2790 OF 2021

1. Ms. Kanaka Kedar Sapre }

(Through Grandmother) }

2. Mrs. Sudha Mukund Shukla }

(Mother) } 

V/S.

 Mr. Kedar Narhar Sapre 

CORAM : SANDEEP K. SHINDE, J.

Dated: January 4th 2022.

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Can the court grant enhanced compensation to legal heirs of the deceased under the head of future prospect if the deceased was not serving and had no income at the time of death?

  We see no reason why the aforesaid principle may not be applied, which apply to the salaried person and/or deceased self employed and/or a fixed salaried deceased, to the deceased who was not serving and/or was not having any income at the time of accident/death. In case of a deceased, who was not earning and/or not doing any job and/or self employed at the time of accident/death, as observed herein above his income is to be determined on the guesswork looking to the circumstances narrated hereinabove. Once such an amount is arrived at he shall be entitled to the addition over the future prospect/future rise in income. It cannot be disputed that the rise in cost of living would also affect such a person. As observed by this court in the case of Pranay Sethi (Supra), the determination of income while computing compensation has to include future prospects so that the method will come within the ambit and sweep of just compensation as postulated under Section 168 of the Motor Vehicles Act. In case of a deceased who had held a permanent job with inbuilt grant of annual increment and/or in case of a deceased who was on a fixed salary and /or self employed would only get the benefit of future prospects and the legal representatives of the deceased who was not serving at the relevant time as he died at a young age and was studying, could not be entitled to the benefit of the future prospects for the purpose of computation of compensation would be inapposite. Because the price rise does affect them also and there is always an incessant effort to enhance one's income for sustenance. It is not expected that the deceased who was not serving at all, his income is likely to remain static and his income would remain stagnant. As observed in Pranay Sethi (Supra) to have the perception that he is likely to remain static and his income to remain stagnant is contrary to the fundamental concept of human attitude which always intends to live with dynamism and move and change with the time. Therefore we are of the opinion that even in case of a deceased who was not serving at the time of death and had no income at the time of death, their legal heirs shall also be entitled to future prospects by adding future rise in income as held by this court in the case of Pranay Sethi (supra) i.e. addition of 40% of the income determined on guesswork considering the educational qualification, family background etc., where the deceased was below the age of 40 years. {Para 11}

Supreme Court

JUSTICE M. R. SHAH JUSTICE SANJIV KHANNA

Smt. Meena Pawaia & Ors. Vs. Ashraf Ali & Ors.

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Whether a suit for declaration of legal heir is triable by Civil Court or by a Family Court?

          In the case at hand, the plaintiff-petitioners instituted the suit under Section 34 of the Specific Relief Act seeking declaration that plaintiff No. 1 is the only legal heir of one deceased Matangini Suklabaidya and seeking further declaration that the defendant No. 1 is not the heir of said Matangini Suklabaidya and such declaration, in my considered opinion, cannot be given by the Family Court and it is the absolute jurisdiction of the Civil Court to give such declaration as to the status of a person whether the plaintiff No. 1 is a legal heir or the defendant No. 1 is a legal heir or not.

9. The Civil Court jurisdiction cannot be put into a water type compartment. The jurisdiction of the Civil Court is wide. Only where there is a special law enacted to deal with some particular aspect the jurisdiction of the Civil Court will be ousted. The Family Court is a Court established under the Family Courts Act to deal with particular aspect in respect of the dispute concerning family, but here in this case, the status of two persons as to whether they are legal heirs or not is in the dispute which shall be decided by the Civil Court and not by the Family Court. The learned Civil Judge, Jr. Division committed gross error of law in directing transfer of the case from his Court to the Family Court and hence the impugned order is liable to be interfered and set aside.

               TRIPURA HIGH COURT

(Before S.C. Das, J.)

Smt. Pramila Suklabaidya,  Vs Smt. Jyostna Suklabaidya, 

CRP No. 02 of 2008

Decided on May 28, 2015

Citation: 2015 SCC OnLine Tri 529 : (2015) 153 AIC 896

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When applicant should not pay court fees for getting legal heirs certificate?

 In so far as Article 12 of Schedule I of the Bombay

Court Fees Act, which has been referred by the learned Judge in

the order, is concerned, it could be seen that the fees prescribed

for certificate under the said regulation are same as the fees

leviable in case of a probate, on the amount or value of the

property in respect of which the certificate is asked for. Article 12

prescribes the percentage of fees to be payable in the matter of a

probate or a will or a letter of administration with or without seal,

depending upon the value of the property.

5] However, perusal of the present application would

reveal that the applicants are not seeking a heirship certificate

under the said regulation with respect to any property. It would be

seen that the fees would be payable only if a heirship certificate is

sought to be obtained, is in respect of same property.

 I do not understand the propriety of the learned Judge

in making an Enquiry from the sources not disclosed in the order,

regarding the list of persons, who are entitled to get compensation

in village Nandgaon. The only requirement under the regulation

prior to issuing a proclamation is to invite and to consider the

objections, if any, received within 30 days from the date of the

proclamation. Had anyone objected after the proclamation so

issued, in that event only, I find that any enquiry in the matter

would have been necessary. If the application filed by the

petitioners was uncontested and if the petitioners had produced

the documents in support of their claim that they; were heirs of

deceased Digambar, I do not understand the propriety of holding

any other enquiry.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

WRIT PETITION NO. 7309 OF 2009

 Shri Ashok  Diga Deng  Vs  The State of Maharashtra.

CORAM : B.R. GAVAI J.

DATE : 21ST NOVEMBER, 2009.

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Whether court can permit the power of attorney holder of legal heirs of the deceased complainant to apply to continue prosecution?

Likewise, under Section 302 of the Code, a person, who is entitled to continue the prosecution, is required to make an application himself but under both the provisions aforesaid, instead of taking steps personally, a party can be represented through a pleader. Power of attorney holder can represent the concerned party under both the provisions of the Code, in case permission for such representation is sought from the court by the concerned person and granted by it. But where no such permission is sought by the concerned person, meaning thereby, in the case of Section 205 of the Code  an accused and in the case of Section 302 of the Code  a party who has right to continue the prosecution, power of attorney holder cannot be allowed to represent the concerned person in the proceeding.

In the present case, neither heirs of the complainant filed petition under Section 302 of the Code to continue the prosecution nor any permission was sought by them from the competent court that they should be allowed to continue the prosecution through their power of attorney holders, rather the prayer was made by the power of attorney holders, which is not permissible under law. This being the position, we are of the view that the trial court was not justified in allowing the petitions under Section 302 of the Code and the High Court has committed an error in confirming the said order which is liable to be set aside and petitions under Section 302 of the Code are fit to be dismissed giving liberty to the heirs either to make application themselves before the court concerned to continue the prosecution or apply to the court to grant permission to them to authorize the power of attorney holders to continue the prosecution on their behalf.

 Supreme Court of India

Jimmy Jahangir Madan vs Bolly Cariyappa Hindley (Dead) By ... on 4 November, 2004

Author: B.N.Agrawal

Bench: B.N.Agrawal, H.K.Sema

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