Supreme Court: Adoption By Widow Would Relate Back To Date Of Husband's Death, gift deed executed by widow will be held null and void

 It is the said finding of the trial Court that was set aside by the High Court in the first appeal with respect to the alienation under the gift deed dated 27.08.2008. A careful scanning of the impugned common judgment of the High Court would reveal that the sound reasoning of the trial Court in regard to this issue was interfered with and set aside without detailed discussion and at the same time without providing any good and sustainable reason therefor. It appears that the High Court was carried away by the fact that the gift deed is a registered one. We have already taken note of the fact that in order to be valid, acceptance of the gift is a pre-requisite. When the very case of one of the donees of the gift viz., the Defendant No. 4 that the property was in the possession of the donor herself till her death itself would reveal that the properties were not delivered and in other words in the legal sense there was no acceptance. The fact that Defendant No. 4 himself depose before the Court that he was not aware of the fact as to in whose possession the gifted properties lie with, would justify the conclusions arrived at by the trial Court. True that the First Appellate Court will be having the power to reappreciate the entire evidence and to substitute any finding of the trial Court if it is legally required. At the same time, when once it is found that a sound reasoning given by a trial Court for returning a finding with respect to a definite issue the same cannot be likely interfered without giving appropriate sustainable reasons. The position with respect to the gift deed is discussed in detail by the trial Court and when it arrived at the conclusion that the pre-requisite for making the same valid was absent such a finding could be reversed only if it is found that the said finding was based on perverse precision of evidence. In the case on hand, the discussion as above would reveal that the pre-requisite to constitute a valid gift is lacking and the evidence discussed by the trial Court would support the said finding we do not find any reason for the Appellate Court to interfere with the same. The declaration that gift deed dated 27.08.2008 is null and void is made by the trial Court in the aforesaid circumstances and it is only as a necessary sequel that the trial Court held that the Appellant/Plaintiff is entitled to entire 'B' and 'C' Schedule properties as the sole legal heir of deceased Defendant No. 1. As noted hereinbefore, DW-1 herself in her written statement admitted the adoption of the Appellant/Plaintiff as her son and the registered adoption deed could fortify the same. When that be so the finding that the Appellant is entitled to the said properties being the sole legal heir of deceased Defendant No. 1 cannot be said to be faulty as it is the inevitable consequence of application for the 'Doctrine of Relation Back' and the ratio of the decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra).{Para 29}

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

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Supreme Court: Sale Deed Executed After Adoption By Mother For Pre-Adoption Property Binding On Adopted Child

 Obviously, in the case on hand, the factum of adoption of the Appellant/the Plaintiff by Defendant No. 1 after the death of adoptive father, on 16.07.1994 is established by the Appellant/the Plaintiff and it is pertinent to note that the same was admitted by Defendant No. 1 as well, in her written statement. In such circumstances, in view of the 'Doctrine of Relation Back' and by applying the law laid down in Sripad Gajanan Suthankar's case (supra) relied on with agreement in Kasabai Tukaram Karvar's case (supra) the adoption by Defendant No. 1, the widow of Bhavakanna Shahpurkar, would relate back to the date of death of the adoptive father which is 04.03.1982 but then all lawful alienations made by Defendant No. 1 would be binding on the Appellant/Plaintiff. As held in Sripad Gajanan Suthankar's case (supra) in paragraph 11 his right to impeach previous alienations would depend upon the capacity of Defendant No. 1 who made the alienation as well as on the nature of the action of alienation. {Para 22}

23. The first among the alienations under challenge in the case on hand is the one where Defendant No. 1 effected sale of the properties covered by registered sale deed dated 13.12.2007 in respect of 'A' Schedule property in favour of Defendant Nos. 2 and 3. There is concurrency with respect to the said issue between the trial Court and the High Court. The Courts have held that Defendant No. 1 got absolute right to effect the sale of the property covered thereunder and that the sale was done in favour of Defendant Nos. 2 and 3 in accordance with the law. Admittedly, in regard to the sale, Defendant No. 1 executed the sale deed dated 13.12.2007 and she was not having a case that she had not received sale consideration. By applying the 'Doctrine of Relation Back' and the ratio of decisions in Kasabai Tukaram Karvar's case (supra) and Sripad Gajanan Suthankar's case (supra) it can only be held that the Appellant/Plaintiff is bound by the said alienation. This is because of the cumulative effect of the compromise decree in OS No. 122 of 2009 followed by Ext.D14 and the allotment of share based on the same. In this context it is also relevant to note that the factum of execution of the sale deed is not disputed by the Appellant but his contention is only that Defendant No. 1 could not have sold the property without his consent and knowledge. Though the alienation was subsequent to his adoption by virtue of the fact that Defendant No. 1 got absolute right and title in regard to the property covered by the said sale deed dated 13.12.2007 and that a valid sale was effected following the procedures, the challenge of the Appellant against the said alienation of property by Defendant No. 1 in favour of Defendant Nos. 2 and 3 is not liable to be interfered with. We have no hesitation to hold that the concurrent findings of the trial Court and the High Court in regard to the said sale deed warrant no interference. 

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 36-37 of 2025.

Decided On: 02.01.2025

Mahesh Vs. Sangram and Ors.

Hon'ble Judges/Coram:

C.T. Ravikumar and Prashant Kumar Mishra, JJ.

Author: C.T. Ravikumar, J.

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Bombay HC: In-Laws Keeping Young Child Away From Mother In Defiance Of Court Order Is Cruelty U/S 498A IPC

 As mentioned above, the daughter of respondent No. 2, who is now only around four years old is kept away from her. A judicial order passed by the Competent Court of law is also not being obeyed. Although, the daughter is with husband, we have already recorded above that the applicants herein are assisting his husband in the sense that his whereabouts are not being disclosed. Keeping a young child of four years old away from her mother in defiance of Court order also amounts to mental harassment amounting to cruelty in as much as it would certainly cause grave injury to mental health of respondent No. 2, mother of the child. Such act of the in-laws amounts to cruelty within the meaning of Explanation (a) to Section 498-A of IPC. We further record that the said mental harassment is continuing from day to day till date. It is a continuing wrong. {Para 13}

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Criminal Application No. 2376 of 2023

Decided On: 11.12.2024

Rekha and Ors. Vs. The State of Maharashtra and Ors.

Hon'ble Judges/Coram:

Vibha Kankanwadi and R.W. Joshi, JJ.

Author: R.W. Joshi, J.

Citation: MANU/MH/7440/2024.

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Whether the court can rely on evidence of mother of rape victim?

 The next question is whether the mother can be regarded as an "independent" witness. So far as this case is concerned, I have no doubt on that score. It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship. Independent merely means independent of sources which are likely to be tainted. In the absence of enmity against the accused there is no reason why she should implicate him falsely. It is true the accused suggested that they were on bad terms but that has not been believed by anyone. {Para 37}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2 of 1951

Decided On: 20.12.1951

Rameshwar Vs. The State of Rajasthan

Hon'ble Judges/Coram:

Saiyid Fazl Ali and Vivian Bose, JJ.

Authored By : Vivian Bose, Saiyid Fazl Ali

Vivian Bose, J.

Citation:  MANU/SC/0036/1951,1951SCC 1213,1951 SCCONLINE SC 83,AIR 1952 SC 54.

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Whether evidence of child witness is admissible in evidence if judge did not certify that child understood the duty of speaking the truth?

The first point taken before us related to the admissibility of the evidence of the girl herself. Her age was stated to be seven or eight years at the time of the examination by the learned. Assistant Sessions Judge who recorded her testimony. He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her. He did not certify that the child understood the duty of speaking the truth. {Para 6}

7. The proviso to section 5 of the Indian Oaths Act, 1873, prescribes that-"Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation the foregoing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmissible any evidence given by such witness nor affect the obligation of the witness to state the truth."

8. The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken.

9. The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act. In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency. The question of competency is dealt with in section 118. Every witness is competent unless the Court considers he is prevented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind. It will be observed that there is always competency in fact unless the court considers otherwise. No other ground of incompetency is given, therefore unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.

10. Now the Oaths Act does not deal with competency. Its main object is to render persons who give false evidence liable to prosecution. It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but, in view of section 118 these matters only touch credibility and not admissibility. In my opinion, section 13 of the Oaths Act places this beyond doubt. It states-

"No omission to take any oath or make any affirmation........ and no irregularity whatever, in the form in which any one of them is administered, shall invalidate any proceeding or render inadmissible any evidence whatever........."

11. Section 5 is the main provision regarding the administration of oaths. The proviso only sets out the cases in which the oath is not to be administered. If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that an irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either Section 118 remains and unless the judge considers otherwise the witness is competent.

12. I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to. But a decision of the Judicial Committee of the Privy Council is in point. Their Lordships stated in Mohamed Sugal Esa v. The King MANU/PR/0086/1945 : A.I.R. 1946 P.C. 3:-

"Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam. If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect.........It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above."

13. The decisions to which their Lordships refer are R. v. Sewa Bhogta 14 Beng. L.R. 294 F.N. and Ram Samujh v. Emperor (1907) 10 O.C. 337. The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature. The principle of the decisions applies here because, as their Lordships observe, the section is unqualified in its terms.

14. I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that otherwise the credibility of witness may be seriously affected, so much so that in some cases it may be necessary to reject the evidence altogether. But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.

In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence. It is also an important fact that the accused, who was represented by counsel, did not object. Had he raised the point the Judge would doubtless have made good the omission. I am of opinion that Mst Purni was a competent witness and that her evidence is admissible. In the Privy Council case which I have just cited, their Lordships said-

"It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessity of speaking the truth when examined as a witness."

15. That is the very point here. One can presume that the learned Judge had that in mind from the fact that he examined the child after referring to a fact which arises out of the proviso.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 2 of 1951

Decided On: 20.12.1951

Rameshwar Vs. The State of Rajasthan

Hon'ble Judges/Coram:

Saiyid Fazl Ali and Vivian Bose, JJ.

Authored By : Vivian Bose, Saiyid Fazl Ali

Vivian Bose, J.

Citation:  MANU/SC/0036/1951,1951SCC 1213,1951 SCCONLINE SC 83,AIR 1952 SC 54.

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Whether the title over suit property will be transferred if mother of minor who is owner of suit property has put signature on sale deed in her individual capacity?

  Once such evidence was adduced in terms of Section 68 of the Evidence Act, 1872, and the mandatory requirements prescribed Under Section 63 of the Indian Succession Act, 1925, were duly satisfied, the Will stood proved in the eye of law (See H. Venkatachala Iyengar v. B.N. Thimmajamma MANU/SC/0115/1958 : 1958:INSC:98 : AIR 1959 SC 443) and the same ought not to have been brushed aside lightly. As the Will was duly proved to be genuine, the participation of the first Defendant in the execution of the Sale Deed dated 18.01.1979 thereafter paled into insignificance. The owner of the property under the Will was Meghraj, the second Defendant, and he was neither a party to the said sale deed nor did his mother affix her signature therein in the capacity of being his guardian.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 9035 of 2013.

Decided On: 29.02.2024

Savitri Bai and Ors. Vs. Savitri Bai

Hon'ble Judges/Coram:

Sanjay Karol and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation:  MANU/SC/0147/2024.

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Whether muslim mother can claim maintenance from her children U/S 125 of CRPC?

 Section 4(1) of the Act contains the provision for maintenance to the divorced woman from her children but this does in fact not debar the divorced Muslim woman from invoking the provision of Section 125 of Cr. PC against her children. Even under the Act the application of the provisions of Section 125 of Cr. PC has been contemplated and the Act has not specifically made any ouster of the application of Section 125 Cr.PC Section 5 of the Act has imposed one condition for the application of sections 125 to 128 of Cr. P C against former husband of the divorced Muslim woman but it is conspicuously silent as regards their application against others. The framework of the Act itself and the ratio decided in the case of Danial Latifi (supra) which we have discussed above will show that the Act itself is not a substituted measure of Section 125 of Cr. P C but in addition thereto. This suggests that the proceeding under Section 125 of Cr.PC against children of the respondent mother is quite maintainable despite the pendency of the proceeding under sections 3, 4 of the Act against her husband.

 IN THE HIGH COURT OF CALCUTTA

C.R.R. No. 516 of 2001

Decided On: 10.12.2001

Makiur Rahaman Kha and Ors. Vs.  Mahila Bibi

Hon'ble Judges/Coram:

N.C. Sil, J.

Citation: MANU/WB/0390/2001.

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Whether son can refuse to pay maintenance to mother on the ground that he has no earnings?

  Learned counsel for the Petitioners vehemently argues that:they do not have sufficient means to pay  the amount and they are ready & willing to look after their mother and therefore, she should be asked to join their home, leaving the place of her daughters; the mother has claimed maintenance only at the instigation of her daughters and thus the claim lacks bona fide. {Para 2}

(ii) The second submission of learned counsel for the

Petitioners that his clients do not have any means to pay

the amount directed in terms of impugned orders, is too

farfetched an argument and therefore, does not merit

countenance. Law, religion & custom mandate sons to

look after their parents, and more particularly aged

mother. 

The above shloka nearly translates to: to neglect the

parents, particularly in their old age, when they become

weak and dependent and to cause anguish, is a heinous

act for which there is no atonement available. The

virtuous idea is that one should respect & serve one’s

parents, guests & gurus, before one worships the

Almighty. 

(iii) The argument that Petitioners do not have means to

pay, is too poor a justification for not looking after the

aged & ailing mother, especially when it is not their case

that they are not able bodied or diseased. The first

Petitioner who is present before the Court and participated

in the proceedings, is hale & healthy; the second Petitioner

is not before the Court, is true; but it is not his case too

that he is weak & incapable of earning; if an able bodied

person is bound to maintain his dependent wife, there is

no reason why such a rule should not apply when it comes

to the case of a dependent mother. An argument to the

contra falls foul of law & religion, to which the Petitioners

belong.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 13182 OF 2022 (GM-RES)

SRI. GOPAL  LATE YELLAIAH Vs  THE DEPUTY COMMISSIONER,

BEFORE

THE HON'BLE MR JUSTICE KRISHNA S DIXIT

DATED THIS THE 12TH DAY OF JULY, 2023.

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Whether the son can compel mother to reside with her if she is claiming maintenance from him?

Learned counsel for the Petitioners vehemently

argues that: Petitioners being the appellants could not

have been made worse off in their own appeal; they do

not have sufficient means to pay the amount and they are

ready & willing to look after their mother and therefore,

she should be asked to join their home, leaving the place

of her daughters; the mother has claimed maintenance

only at the instigation of her daughters and thus the claim

lacks bona fide.

(v) The next contention of the Petitioners that they are

ready & willing to look after their mother and therefore

she should be directed to join them, is neither legally

sustainable nor factually desirable. This Court saw the

mother Smt.Venkatamma, who is absolutely illiterate and

who has a fragile health condition; she is aged about 84

years, as admitted in the Petition itself. Her eyesight is

considerably diminished. Law of marriage generally

provides for restitution of conjugal rights qua the deserting

spouse, is true. No law or ruling of the kind is cited at the

Bar that the unwilling parents can be forced to reside with

their children. Such a contention is incongruous and

abhorrent to our culture & tradition, to say the least.

(vi) Absolutely no material is produced by the Petitioners

to substantiate their allegation that the mother is being

manipulated by her daughters. It is not that the daughters

want any share in the family property. It is they who have

been looking after the mother abandoned by the sons.

But for them, she would have been on the streets. The

gestures shown by the daughters merits a deep

appreciation at the hands of this Court.

IN THE HIGH COURT OF KARNATAKA AT BENGALURU

WRIT PETITION NO. 13182 OF 2022 (GM-RES)

SRI. GOPAL  LATE YELLAIAH Vs  THE DEPUTY COMMISSIONER,

BEFORE

THE HON'BLE MR JUSTICE KRISHNA S DIXIT

DATED THIS THE 12TH DAY OF JULY, 2023

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How to appreciate evidence if son is claiming that his mother had no earnings and is holding immovable property as benamidar of his father?

Crucial question which is to be answered in the present appeal is whether the transaction i.e. the purchase of suit property under registered deed of sale dated 20.01.1970 by Lila is benami transaction. {Para 11}

12. Benami Transaction (Prohibition) Act, 1988 defines the expression, 'benami transaction' and equipped the appropriate authority with powers to acquire benami property. Provisions of three sections being Sections 3, 5 & 8 of the 1988 Act, which was initially a 9-section legislation, came into force with effect from 5.9.1988 whereas the remaining provisions thereof came into force from the date being 19.9.1988. Section 3 being a prohibitory legislation cannot have retrospective operation but the Section 2(a) of the Act which is a piece of declaratory legislation can have its application irrespective of its date or duration. So, definition of the expression 'benami transaction' can be borrowed from Section 2(a) of the 1988 Act in respect of the transaction held prior to promulgation of the said Act. As defined in Section 2(a) of the Act 'benami transaction' means any transaction in which property is transferred to one person for a consideration paid or provided by any other person. A transaction must, therefore, be benami irrespective of its date or duration.

13. In India, two kinds of benami transactions are generally recognized. Where a person buys a property with his own money but in the name of another person without any intention to benefit such other person, the transaction is called benami. In that case, the transferee holds the property for the benefit of the person who has contributed the purchase money, and he is the real owner. The second case which is loosely termed as a benami transaction is a case where a person who is the owner of the property executes a conveyance in favour of another without the intention of transferring the title to the property thereunder. In this case, the transferor continues to be the real owner. [See, the judgment delivered in the cases of Bhim Singh - vs- Kan Singh, reported in (1980) 3 SCC 72 and Pulin Behari Addy (supra)].

14. However, there is a presumption in law that the person who purchases the property is the owner of the same and such presumption can be displaced only by pleading and successfully proving that the person whose name appears in the document is not the real owner, but only a benami and heavy burden lies on the person who pleads that recorded owner is mere name-lender.

15. Now, coming to the case at hand, it can be argued that to hold the subject transaction as benami transaction, it is to be proved by the principle of preponderance of probability that although the suit property was purchased in name of Lila but the consideration money was paid or provided by her husband and not by Lila.

16. Indisputably, subject deed of sale was executed and registered on 20.01.1970. Sekhar preferring the suit in 2011 claimed that Lila, transferee was mere name-lender and Sekhar adduced his oral testimony only and he did not produce any document whereas Lila deposed in 2016 and adduced her oral accounts which found support from the evidence of DW-2 and Lila had produced all the documents relating to suit property.

17. During course of hearing, both the appellant and the respondents advanced their arguments on the issue relating to 'burden of proof'. So, main question centred around the present appeal is whether it was Sekhar who had to discharge the burden to prove that the subject sale transaction was benami transaction or it was Lila who was to prove that she purchased the suit property from own fund or 'stridhan' properties detailing the source of such fund and disclosing every details of payment of consideration money.

18. The question relating to burden of proof has been set at rest in the judgment of Jaydayal Poddar (Deceased) thr. Lrs. -vs. Mst. Bibi Hazra reported in AIR 1974 SC 171 in which the Hon'ble Apex Court ruled as follows:

"It is well settled that the burden of proving that a particular sale is benami and the apparent purchaser is not the real owner, always rests on the person asserting it to be so. This burden has to be strictly discharged by adducing legal evidence of a definite character which would either directly prove the fact or benami or establish circumstances unerringly and reasonably raising an inference of that fact. The essence of a benami is the intention of the party or parties concerned; and not unoften such intention is shrouded in a thick veil which cannot be easily pierced through. But such difficulties do not relieve the person asserting the transaction to be benami of any part of the serious onus that rests on him; nor justify the acceptance of mere conjectures or surmises, as a substitute for proof. The reason is that a deed is a solemn document prepared and executed after considerable deliberation, and the person expressly shown as the purchaser in the deed, starts with the initial presumption in his favour that the apparent state of affairs is the real state of affairs. Though the question, whether a particular sale is benami or not, is largely one of fact, and for determining this question, no absolute formulae or acid test, uniformly applicable in all situations, can be laid down; yet in weighing the probabilities and for gathering the relevant indicia, the courts are usually guided by these circumstances: (1) the source from which the purchase money came; (2) the nature and possession of the property, after the purchase; (3) motive, if any, for giving the transaction a benami colour; (4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar; (5) the custody of the title-deeds after the sale and (6) the conduct of the parties concerned in dealing with the property after the sale."

19. In the given case, Sekhar claimed that his mother, Lila was a mere name-lender. He deposed that at the relevant time of sale, he was not present and he could not say the actual amount of consideration money and he admitted that he did not verify from attesting witness, identifier etc. whether his father paid the consideration money and he admitted that his father never claimed himself to be the real owner of the suit property and he admitted that he did not have any document to show that his father paid the consideration money.

20. From evidence of Lila, it appears that Lila admitted that she was a home-maker throughout her life and she had no independent income of her own and she asserted that she purchased the suit property from her 'stridhan' properties. She claimed that she herself purchased the property selling her gold ornaments. Admittedly, Lila testified that during his stay in the suit property, Sekhar used to behave well with her.

21. Mr. Poddar tried to convince us that since both the parties have led evidence, question of burden of proof has lost its significance and Court should pass judgment appreciating evidence let in by the parties and since, Lila failed to disclose the particulars of her 'stridhan' properties and since, Lila admitted that she was a home-maker throughout her life having no independent income of her own, the learned Court below should have come to the conclusion that Lila was nothing but a mere name-lender.

22. At the cost of reiteration, it may be stated that a Court is required to bear in mind the well-settled principles to the effect that the burden of showing that a transfer is a benami transaction always lies on the person who asserts it. In the Indian society, if a husband supplies the consideration money for acquiring property in the name of his wife, such fact does not necessarily imply benami transaction. Source of money is, no doubt, an important factor but not a decisive one. The intention of the supplier of the consideration money is the vital fact to be proved by the party who asserts benami. In other words, even if it is proved that Sailendra paid the consideration money, the plaintiff must further prove that Sailendra really intended to enjoy the full benefit of the title in him alone.

23. In the case before us, Sekhar could not bring any evidence even to show what was amount of consideration money and how the consideration money was paid and how the suit property was purchased and even he could not prove who paid the consideration money. He could not produce any document relating to the suit property. Title deed and all documents relating to the suit property were all along in the custody of Lila and Lila all along paid municipal tax and got the suit property mutated in her name and Sekhar could not bring any evidence on record to lead any prudent man to infer that his father had a motive to create benami in name of his mother or Sailendra intended to enjoy the full benefit of the title in him alone. Judgments relied upon by the appellant in spite of having unquestionable value of the proposition laid down therein, shall not come in aid of the appellant in the factual matrix of the case at hand.

24. As a result, we are inclined to hold that learned Court below has correctly held that Sekhar has failed to discharge his burden to prove that subject sale transaction is benami transaction and we have not found any wrong in the approach and decision of the learned Court below and we are of the view that judgment and decree impugned cannot be annihilated. 

Calcutta High Court (Appellete Side)

Sri Sekhar Kumar Roy vs Smt. Lila Roy & Another on 7 June, 2023

Present: The Hon'ble Justice Tapabrata Chakraborty 

&The Hon'ble Justice Partha Sarathi Chatterjee

Author: Partha Sarathi Chatterjee, J.

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Whether Son Can Claim Right Or Share In Parents' Flats While They Are Alive?

  At this stage we note that there is a Intervention Application

by one Asif Fazal Khan. He lives elsewhere at another address. He seeks leave to intervene. He says that he is the “de facto” guardian of Fazal for many years. There is absolutely nothing in his application to show this. Although the Petition by Sonia and her daughters annexes a large number of documents showing expenses and bills paid by Sonia and in Sonia’s name, there is not one scrap of paper adduced by Asif in support of his contention. {Para 7}

8. Asif then says that although his parents are alive, there are two flats and both are what he describes as “ a shared household”

and therefore he, the son, has some sort of enforceable legal right or entitlement to either or both of these flats. The submission is so illfounded and illogical that it only needs to be stated to be rejected. In any conceptualization of succession law for any community or faith, Asif can have no right, title or interest whatsoever in either of these flats — one in his father’s name and other in his mother’s name — so long as his parents are alive. The suggestion that Asif has a settled and enforceable share in either of the flats in the lifetimes of the real owners, his parents, is laughable. The fact that he is their son does not make either of their flats ‘a shared household’.

10. Asif has no rights in his father’s flats. He has nothing to show

that he has ever cared for his father.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION (L) NO. 12047 OF 2021

Sonia Fazal Khan & Ors  Vs Union of India & Ors 

CORAM: G.S. Patel & Madhav J. Jamdar, JJ.

DATED: 16th March 2022

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Is the father not liable to provide maintenance to his son eighteen years old if the mother is earning?

 It is further pertinent to note that it is true that in majority of households, women are unable to work due to sociocultural as well as structural impediments, and, thus, cannot financially support themselves. However, in households wherein the women are working and are earning sufficiently to maintain themselves, it does not automatically mean that the husband is absolved of his responsibility to provide sustenance for his children. A father has an equal duty to provide for his children and there cannot be a situation wherein it is only the mother who has to bear the burden of expenses for raising and educating the children.

10. This Court cannot shut its eyes to the reality that simply attaining

majority does not translate into the understanding that the major son is earning sufficiently. At the age of 18, it can be safely assumed that the son is either graduating from 12th standard or is in his first year of college. More often than not, it does not place him in a position wherein he can earn to sustain or maintain himself. It further places the entire burden on the mother to bear the expenses of educating the children without any contribution from the father, and this Court cannot countenance such a situation.

The context of Section 125 Cr.P.C. is to ensure that the wife and the children of the husband are not left in a state of destitution after the divorce. The husband must also carry the financial burden of making certain that his children are capable of attaining a position in society wherein they can sufficiently maintain themselves. The mother cannot be burdened with the entire expenditure on the education of her son just because he has completed 18 years of age, and the father cannot be absolved of all responsibilities to meet the education expenses of his son because the son may have attained the age of majority, but may not be financially independent and could be incapable of sustaining himself. A father is bound to compensate the wife who, after spending on children, may hardly be left with anything to maintain herself.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

  IN THE MATTER OF:

  CRL. REV. P. 549/2018

 URVASHI AGGARWAL Vs  INDERPAUL AGGARWAL

 CORAM: HON'BLE MR. JUSTICE SUBRAMONIUM PRASAD 

Dated : 5th OCTOBER, 2021

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Whether the court can refuse to give custody of the child to the mother if the father fails to prove adultery by leading full-fledged evidence?

 Another fact, for which definitely objection will have to be taken in respect of the observations in para No.66 of the impugned Judgment, which are in respect of allegations of adultery. It appears that the opponent had produced on record the transcription of the mobile conversation between the applicant and the said person and the copies of their photos showing closeness along with his affidavit. That evidence has been considered by the

learned Trial Judge without it was proved in all legal aspects. For the mobile conversation it appears, as there is absolutely no discussion, there was no mandatory certificate under Section 65-B of the Indian Evidence Act. So also, as regards the photos are concerned, it appears that the concerned photographer was not examined and these documents have not been separately exhibited. There was no opportunity to the wife to cross-examine

the husband, and therefore, when, though the fact of adultery is alleged and it has not been proved by cogent and conclusive evidence by the husband, the Trial Judge ought not to have even considered it for a sentence also. Further, in para No.68 the learned Judge went on to observe that those allegations

regarding relationship of the wife and the said person were not without foundation or reckless. That was a factor, which has been taken by him for considering/deciding the custody of the children. This is totally illegal. When the full-fledged evidence was not led, the Court had not come to the conclusion that the allegations of adultery are proved, merely, because some

documents have been produced, it cannot be taken as supporting evidence and then a conclusion can be drawn that wife/mother is not entitled to get custody. It will have to be held that at this stage, in this matter, allegations of adultery are not proved by the husband. There was an opportunity for him to prove it by leading the appropriate evidence, which he has not availed.

{Para 13}

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

FIRST APPEAL NO.393 OF 2021

WITH

CIVIL APPLICATION NO.3803 OF 2021

Ratnamala  Pandurang Zate, Vs Pandurang Udhav Zate,

CORAM : SMT. VIBHA KANKANWADI, J.

PRONOUNCED ON : 03rd JULY, 2021

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Whether application for declaration and injunction about the minor's property is maintainable before the High court in the absence of guardianship petition?

This scheme of law indicates that what lies before a court, other than a family court under Section 7 of the Family Courts Act, is an application for appointment of guardian of the property of a minor or an application for permission to deal with such property. It is only these applications which  are made by means of a guardianship or a miscellaneous petition before this court. It is another matter that in such petition, filed for either of these two reliefs, other ancillary reliefs concerning the property of the minor may be prayed for, but no substantive petition can possibly lie simply for such ancillary reliefs without praying for either of the two main reliefs as the main prayer. It is not in dispute that the present application seeks neither of these two reliefs. 

The Act, however, does not provide for any application for the sole relief of perpetual injunction or recovery of the minor’s property dealt with contrary to Section 11 to be made by way of a guardianship petition. The injunction against a de facto guardian for dealing with the minor’s property has been provided for in the Hindu Minority and Guardianship Act concomitantly with the powers to be exercised by the natural guardian for dealing with the minor’s estate or property in accordance with Section 8, which, as we have noted above, provides for seeking of a permission of the court to deal with such estate or property. But that does not mean that relief in enforcement of such injunction can be sought in a guardianship petition under that Act. Such relief can only be sought in an ordinary suit by the next friend or guardian appointed of the minor.

7 Having regard to the foregoing narration, in either event, this

court has no jurisdiction to entertain the present petition as framed.

Accordingly, the guardianship petition is dismissed.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

GUARDIANSHIP PETITION NO. 16 OF 2018

WITH

INTERIM APPLICATION (L) NO. 5266 OF 2021

WITH

MISC.APPLICATION NO. 4 OF 2018

Ashu Khurana Dutt  Vs  Aneesha Ashu Dutt 

CORAM : S.C. GUPTE, J.

DATE : 1 APRIL 2021

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When can the daughter not claim that her mother is in a fiduciary relationship with her?

  To establish a fiduciary relationship of the mother (D1) with her children, the appellant has once again used the same facts and chain of reasoning. It was submitted that the compensation paid to Yashpal Sain for the acquisition of his land, was ploughed back for the purchase of the suit property and since all the legal heirs were entitled to inherit the assets of Yashpal Sain on his death, she had a 1/4th share in the suit property and therefore, D1 held it only in a fiduciary capacity for all of the legal heirs and the allotment of the suit property and the documentation in the sole name of D1 could not nullify her rights in it. It was sought to be pointed out that D1 in her letter to the Society had herself stated that she was seeking the allotment of the very plot of land earlier allotted to her husband and was seeking it only to be able to take care of her children and therefore, it was clear that she was allotted the plot of land only in a fiduciary capacity. The appellant emphasized that her siblings were minor at that time and she herself was barely 18 years old, but still contributed her share in her father’s assets towards the cost of the suit property. These facts were enough to establish that D1 was holding the suit property in a fiduciary capacity.{Para 28}

29. However, we are unable to accept this submission. Being a mother, D1 would have naturally assumed the role of the caretaker of her children including the appellant after the death of her husband. By setting out a ground for allotment of a plot to her, it cannot be assumed that D1 had entered into a fiduciary relationship with her children. Fiduciary relationships have legal connotation and are not equivalent to filial relationships. Fiduciary relationships or capacity involve the existence of a duty or obligation that is more than parental duties or obligations.

 58. The scope of fiduciary relationship consists of the following rules:

“(i) No conflict rule — A fiduciary must not place himself in a position where his own interests conflict with that of his customer or the beneficiary. There must be ‘real sensible possibility of conflict’.

(ii) No profit rule — A fiduciary must not profit from his position at the expense of his customer, the beneficiary.

(iii) Undivided loyalty rule — A fiduciary owes undivided loyalty to the beneficiary, not to place himself in a position where his duty towards one person conflicts with a duty that he owes to another customer. A consequence of this duty is that a fiduciary must make available to a customer all the information that is relevant to the customer's affairs.

(iv) Duty of confidentiality — A fiduciary must only use information obtained in confidence and must not use it for his own advantage, or for the benefit of another person.”

32. The facts and circumstances surrounding the acquisition of the suit property by D1 and its subsequent use do not establish any of the above elements. A parent would be in a fiduciary relationship with an offspring only when the child lacks legal capacity due to minority or disability and the relationship discloses an absolute dependency on the parent for decision making. The appellant was 18 years old and legally major when the suit property was purchased. Her very case is that she consciously allowed her mother to take the property in her own name and voluntarily, even paid for it. There are no facts pleaded to show how D1 had ever established superior control over the appellant and took over her responsibility. No duty or obligation is stated to have been taken by D1 to advice the appellant or that the appellant was completely dependent on D1 for such advice. Rather, according to the appellant, her husband had all along helped D1 in dealing with the suit property. There is no pleading to the effect that a Trust had been created for the children of late Yashpal Sain and D1 had been appointed its Trustee.

33. In short, there is nothing to show that D1 had taken the allotment of the suit property for the benefit of her family and that she was holding it in trust for her children and that in view of the fiduciary nature of her title, even if the documents are recorded only her name, the appellant had a right to claim a share in the property. The decision in Marcel Martins Vs. M. Printer and others, (2012) 5 SCC 342 is distinguishable on facts as in that case, the Municipal Authorities had insisted on mutating the property only in the name of one legal heir whereas the husband and all children of the deceased owner had inherited the property jointly on her death. Here the suit property was not in existence at the time of the death of Yashpal Sain as it was allotted to D1after his death.

34. While the mother may be ethically and morally bound to do the best in the interests of her children, there is no legal duty placed on her to act solely in the interests of her children (unless minor or disabled), unlike a situation where apart from being a mother, she was required to act as their Trustee in a Trust created for their benefit or was the Karta of an HUF obligated to act in the best interest of the coparceners. When no fiduciary capacity has been established, it is apparent that the appellant’s claim is not covered under Section 4(3)(b) either. This Exception is also not available to the appellant to escape the rigours of the prohibition of Section 4 of the Benami Act and the learned Single Judge rightly held the claim to be barred by law.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

 Date of Decision: 03rd November, 2020

 RFA (OS) 63/2018

SAVITA ANAND  Vs  KRISHNA SAIN 

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

HON'BLE MS. JUSTICE ASHA MENON

[VIA VIDEO CONFERENCING]

JUSTICE ASHA MENON

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When the court should allow the co-applicant in the application for legal heirs certificate as an objector?

 A perusal of the relevant provisions of the Regulation

would show that the Preamble itself provides that it is in general

desirable that heirs, executors or legal administrators of persons

deceased should, unless their right is disputed, be allowed to

assume the management of the estate of the deceased. The words

“unless their right is disputed” are crucial, particularly in the

peculiar facts and circumstances of the present case.{Para 16}

17. Clause 4 of the Regulation is also significant because it

mandates that the Court shall summarily investigate the grounds

of objection on the one hand and the right of claimants on the

other hand before issuing legal heirship certificate. The said clause

further specifically mandates that if the Court comes to a

conclusion that the question at issue between the parties is of a

complicated or difficult nature, the Court can suspend the

proceedings until the said question is put at rest by way of a

regular suit instituted by one of the parties.

18. In the present case, the facts and circumstances are such

that the respondents are seeking to deprive the petitioner, who is

admittedly the mother of the deceased Mahesh, to even raise a

dispute in terms of the provisions of the aforesaid Regulation. All

that the petitioner desires by way of being transposed is to have

an opportunity to dispute the claim made by the respondents on

the basis of the said purported Will, in view of the amended

application now pending consideration before the Court below.

There cannot be any dispute about the general propositions

discussed by the Court below in the impugned order that the

proceedings under the said Regulation are necessarily summary in nature and that finality of rights of the disputing parties would be achieved only after appropriate proceedings are instituted and

culminate before the competent Civil Court. But, in the facts and

circumstances of the present case, the question that was required

to be considered by the Court below was, as to whether the

petitioner could be deprived of her right to raise an objection to

the exclusive right sought to be claimed by the respondents on the basis of the amended application. This is particularly because, in the first place, while filing the original application, the respondents did not join the petitioner as a non-applicant and even more significantly they did not even mention existence of the

purported Will dated 15/09/2012, said to have been executed by

deceased Mahesh in their favour. Thus, in the facts and

circumstances of the present case, this Court has come to the

conclusion that from the very beginning the respondents have

been making attempts to deprive the petitioner of her basic right

of even disputing the claims made by them insofar as grant of

legal heirship certificate is concerned. Attempts have been made

to nip in the bud, the right of the petitioner to raise her claim.

Whether the Court below finally accepts the claim of the petitioner or not is a different matter, but she cannot be deprived of her right to raise objection to the manner in which the respondents have sought relief from the Court below under the provisions of the said Regulation.

19. In view of the above, it is found that the impugned order

is wholly unsustainable. Accordingly, the writ petition is allowed.

The impugned order is quashed and set aside. The application

filed by the petitioner at Exhibit-23 is allowed in terms of the

prayer made therein. Consequently, the application pending before the Court below shall stand amended by transposing the petitioner as objector. 

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH, NAGPUR.

WRIT PETITION NO. 2601 OF 2019

 Vijayabai Yugraj Rupareliya  Vs  Chaya Wd/o Mahesh Rupareliya, 

CORAM : MANISH PITALE, J.

DATE : 05.02.2020

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While calculating husband’s income for granting maintenance to wife, can husband’s mother who receives her independent pension be counted as a dependant to be maintained by husband?

 The next question which has to be decided by this Court is as to whether the court below was right in dividing husband’s income into six shares while calculating and granting interim maintenance.

30. It is an admitted fact that mother of husband is receiving pension @Rs.17,199/- and medical benefits etc. It is also not in dispute that the three storeyed house is in the name of mother, of which one floor is occupied by her, another by the husband and the third floor is occupied by the brother of the husband. According to wife, as per the copy of rent agreement placed on record, husband is paying a sum of Rs.8,000/- p.m. towards rent to her mother and such might be the position of brother too. And in this way, mother is getting additional rental income of approximately Rs.16,000/- per month.

31. Even if it is assumed that the rent agreement placed on record might have been manipulated to save income tax, then also it cannot be lose sight of that mother is receiving a good amount of pension and is thus, financially independent. In addition, she is also getting medical benefits from a Government Hospital, which is an added advantage towards her financial savings. Another plea put forth by the husband is that he had got employment in Indian Railways on compassionate grounds after demise of his father only because his mother had refused to procure it on medical grounds and tendered “no objection’ in his favour and therefore, he is liable to maintain her. The Hon’ble Supreme Court in Bhuwan Mohan Singh Vs. Meena & Ors. (2015) 6 SCC 353 has observed as under:- “2. Be it ingeminated that Section 125 of the Code of Criminal Procedure (for short “the Code”) was conceived to ameliorate the agony, anguish, financial suffering of a woman who left her matrimonial home for the reasons provided in the provision so that some suitable arrangements can be made by the court and she can sustain herself and also her children if they are with her. The concept of sustenance does not necessarily mean to lead the life of an animal, feel like an unperson to be thrown away from grace and roam for her basic maintenance somewhere else. She is entitled in law to lead a life in the similar manner as she would have lived in the house of her husband. That is where the status and strata come into play, and that is where the obligations of the husband, in case of a wife, become a prominent one. In a proceeding of this nature, the husband cannot take subterfuges to deprive her of the benefit of living with dignity. Regard being had to the solemn pledge at the time of marriage and also in consonance with the statutory law that governs the field, it is the obligation of the husband to see that the wife does not become a destitute, a beggar. A situation is not to be maladroitly created whereunder she is compelled to resign to her fate and think of life “dust unto dust”. It is totally impermissible. In fact, it is the sacrosanct duty to render the financial support even if the husband is required to earn money with physical labour, if he is able-bodied. There is no escape route unless there is an order from the court that the wife is not entitled to get maintenance from the husband on any legally permissible grounds.”

32. Accordingly, I find that the trial court has erred in keeping mother’s share in the income of husband.

 IN THE HIGH COURT OF DELHI AT NEW DELHI 

 Pronounced on: 18.02.2021 

 CRL.REV.P. 322/2020 & Crl.M.A. 13958/2020

 NITIN SHARMA Vs SUNITA SHARMA & ORS.

CORAM: MR. JUSTICE SURESH KUMAR KAIT

Pronounced on: 18.02.2021 

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Whether a father taking away a minor child from the custody of the mother can be held guilty for the offence of kidnapping?

Therefore what we have proved in this case is that the child was in the keeping of his mother who was a lawful guardian within the meaning of Section 361, Indian Penal Code and that the child was taken or enticed away out of her keeping. Section 361 says that "whoever takes or entices...is said to kidnap" and there can be no doubt that the word "whoever" will include P.W. l's husband. But this is not quite sufficient. The exception to Section 361 states as follows:

This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful custody of such child, unless such act is committed for an immoral or unlawful purpose.

7. Now, if a person who in good faith believes himself to be entitled to the lawful custody of a child cannot commit an offence under Section 361, Indian Penal Code, it seems to follow a fortiori that a person who is in fact the father of the child, and therefore in law entitled to the lawful custody of the child cannot come within the scope of Section 361, Indian Penal Code. In this case it can be said on behalf of the first accused that he did not merely in good faith believe himself to be entitled to the lawful custody of his child, but that he was beyond the possibility of any challenge entitled to the lawful custody of the child, and that therefore his act in taking the child from the keeping of his mother could not amount to an offence of kidnapping from lawful guardianship.

I am fortified in this opinion by the reasoning of Rankin, C.J., in the case in Saharali Mohammad v. Kamizuddin Mahammad (1930) I.L.R. 58 Cal. 897. The learned Chief Justice quoted with approval the decision in Emperor v. Sital Prasad (1919) I.L.R. 42 All. 146 as authority for the proposition that:

The explanation to Section 361 cannot be used* to mean that, as against a person, who, in fact, is the civil guardian of the minor, mere de facto guardianship can be set up so as to convict the real civil guardian of an offence under Section 361.
Madras High Court

In Re: Kanneganti Chowdarayya And ... vs Unknown on 22 February, 1938

Equivalent citations: (1938) 1 MLJ 670

Author: Burn

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Whether Judicial officer is entitled to get medical reimbursement in respect of the medical treatment of his parents if they are getting a pension?

Service - Medical Reimbursement - Family member - Rule 2(3)(Seven) of Maharashtra Civil Services (Medical Attendance) Rules, 1961 - Respondent refused to medical Reimbursement of expenses spend by Petitioner, on treatment of his mother - Hence present petition - Whether petitioner entitled to medical reimbursement - Held, according to Rule 2 (3)(Seven) of Rules, father and mother of Government employee who received pension more than Rs. 3500/- per month would not be considered wholly dependent - In present case, mother of Petitioner was getting pension more than amount specified in above clause - But following ratio of State of M.P. & others v. M.P. Ojha & Anr and Nand Rani, Principal Govt. Sr. v. The State of Punjab & Ors., observed that expression "wholly dependent" could not be confined to mere financial dependence - Therefore, Petitioner's mother being 85 years old, and both, physically and financially dependent on him, was wholly inadequate to meet her medical expenses - Hence, Petitioner entitled medical reimbursement - Petition allowed.

IN THE HIGH COURT OF BOMBAY

Writ Petition No. 8899 of 2012

Decided On: 03.04.2013

Anil Dattatraya Kulkarni Vs.   State of Maharashtra

Hon'ble Judges/Coram:

V.M. Kanade and F.M. Reis, JJ.

Citation;2013(5)ABR717, 2013(6)ALLMR804, 2013LabIC3612

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