Under which circumstances life interest in property given to wife will not convert into ownership rights as per S 14 of Hindu Succession Act?

In our view the relevant aspect of the aforesaid conclusion is para 4 which opines where Sub-section (2) of Section 14 of the said Act would apply and this does inter alia applies to a Will which may create independent and new title in favour of females for the first time and is not a recognition of a pre-existing right. In such cases of a restricted estate in favour of a female is legally permissible and Section 14(1) of the said Act will not operate in that sphere.{Para 30}

31. We may add here that the objective of Section 14(1) is to create an absolute interest in case of a limited interest of the wife where such limited estate owes its origin to law as it stood then. The objective cannot be that a Hindu male who owned self-acquired property is unable to execute a Will giving a limited estate to a wife if all other aspects including maintenance are taken care of. If we were to hold so it would imply that if the wife is disinherited under the Will it would be sustainable but if a limited estate is given it would mature into an absolute interest irrespective of the intent of the testator. That cannot be the objective, in our view.

32. The testator in the present case, Tulsi Ram, had taken all care for the needs of maintenance of his wife by ensuring that the revenue generated from the estate would go to her alone. He, however, wished to give only a limited lift interest to her as the second wife with the son inheriting the complete estate after her lifetime. We are, thus, of the view that it would be the provisions of Section 14(2) of the said Act which would come into play in such a scenario and Ram Devi only had a life interest in her favour. The natural sequitur is that the Respondents cannot inherit a better title than what the vendor had and, thus, the view taken by the trial court and the first appellate court is the correct view and the sale deeds in favour of the Respondents cannot be sustained.

IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 1543-1544 of 2019

Decided On: 01.02.2022

Jogi Ram Vs. Suresh Kumar and Ors.

Hon'ble Judges/Coram:

Sanjay Kishan Kaul and M.M. Sundresh, JJ.

Author: Sanjay Kishan Kaul, J.

Citation:  MANU/SC/0119/2022.

Print Page

Whether the rule of Estoppel will prevent sons from claiming rights in the self acquired property of their grand father, if their father has relinquished his rights in that property?

What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption 'Death or disability of the representor' (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:

Death or disability of the representor

128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.

Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject...

23. It will be noticed that the father of the Appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the Appellants, that the right Under Section 8(a) of the Hindus Succession Act, purports to vest the right in the Appellants. We would think, therefore, that Appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what was purported to be released by Shri Chandran, was a mere spec successionis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.

24.  Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the Appellants.

 IN THE SUPREME COURT OF INDIA

Civil Appeal Nos. 521-522 of 2023.

Decided On: 25.01.2023

Elumalai and Ors. Vs. M. Kamala and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and Hrishikesh Roy, JJ.

Author: K.M. Joseph, J.

Citation:  MANU/SC/0077/2023, 2023/INSC/83

Print Page

Supreme Court alters order requiring father to visit son in court premises considering welfare of son

 In a matter of the present nature, it is needless to mention,

as rightly observed by the High Court, the welfare of the child is

also to be kept in view by the Court. However, at this stage we

find that the repeated visitation rights in the Court premises,

would also not be in the interest of the child as the environment

during which the visitation rights are exercised, would also

matter.

Therefore, at this stage, we see no reason to dispose of the

instant petition but we direct that the visitation rights, as

granted by the Family Court, shall stand altered for the present

whereby the interim custody of the child shall be made over to the petitioner-father by the respondent-mother at the entrance of the RP Mall, Kollam, Kerala at 11:00 a.m on Sundays. The petitioner father may take the child to the said mall and exercise the visitation rights till 02:00 p.m. of the same day. The custody of the child shall be made over to the respondent-mother at the same spot (entrance of the mall) where the child was made over to the petitioner-father at 02:00 p.m.

S U P R E M E C O U R T O F I N D I A

RECORD OF PROCEEDINGS

Petition(s) for Special Leave to Appeal (C) No(s). 2437/2023

VERSUS

JUDGMENT

Date : 03-10-2023 These matters were called on for hearing today.

CORAM :

HON'BLE MR. JUSTICE A.S. BOPANNA

HON'BLE MR. JUSTICE MANOJ MISRA

Print Page

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.

Read full Judgment here: Click here

Print Page

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

Print Page

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.

Print Page

Supreme Court: When A Person Has Relinquished Rights In Father's Self Acquired Property, His Sons Are Estopped From Claiming Share

  In the facts of this case, the case of the appellants may be noted. It is their case, that Shri Chandran, their father, himself did not have any right in the plaint schedule property. This is for the reason that being the separate property of Shri Sengalani Chettair, Shri Chandran did not have any right by birth. He himself had only, what is described a spec successionis within the meaning of Section 6(a) of the Transfer of Property Act. It is not even the case of the appellants that they had any independent right in the plaint schedule property either at the time of their birth or at the time when their father died or even when their grandfather Shri Sengalani Chettair died in 1988. The right, which they claim, at the earliest point, can arise only by treating the property as the separate property of Shri Sengalani Chettair on his death within the meaning of Section 8 of the Hindu Succession Act. Therefore, we are unable to discard the deed of release executed by their father Shri Chandran in the year 1975 as a covenant within the meaning of Section 8 of the ‘1956 Act.’

{Para 21}

22. As far as the argument of the appellants that the appellants would have an independent right, when succession open to the estate of Shri Sengalani Chettair, when he died in 1988, in view of the fact that the appellants are the children of the predeceased son, viz., Shri Chandran, who died on 09.12.1978, we are of the view that there is no merit in the said contention. It is true that under Section 8(a) of the Hindu Succession Act, 1956, property of a male Hindu, dying intestate, will devolve, firstly, upon the heirs, being the relatives specified in Class I of the Schedule. The son of a predeceased son, it is true, is a Class I heir. Therefore, it could be argued that since Shri Sengalani Chettair died intestate, a right was created in the property in favour of the appellants, being the children of the predeceased son. What estoppel brings about, however, is preventing a party from setting up the right, which, but for the estoppel, he would have in the property. In this regard, we may notice the following discussion under the caption ‘Death or disability of the representor’ (pages 125-126) in the work Estoppel by Representation by Spencer Bower and Turner:

“Death or disability of the representor

128. In case of the death, or the total or partial disability (whether by reason of insolvency, infancy, lunacy, coverture, or otherwise), of the representor at the time of the proceedings in which the question of estoppel is raised, the liability to the estoppel, speaking generally, devolves upon, or is transmitted to, the same persons, in accordance with the same rules, and subject to the same conditions, as the liability of such a representor to proceedings for the avoidance of a contract procured by the representation.

Where the representor has died between the date of the representation and the date of the raising of the estoppel, the executor or administrator, or (in case of title to, and estates in, land) the heir or devise, of the deceased representor is bound by the representation to the same extent as the representor would have been, and succeeds to all the burdens of estoppel in respect thereof to which, at the date of his decease, such representor was subject…”

23. It will be noticed that the father of the appellants, by his conduct, being estopped, as found by us, is the fountainhead or the source of the title declared in Section 8(a) of the Hindu Succession Act. It is, in other words, only based on the relationship between Shri Chandran and the appellants, that the right under Section 8(a) of the Hindus Succession Act, purports to vest the right in the appellants. We would think, therefore, that appellants would also not be in a position to claim immunity from the operation of the Principle of Estoppel on the basis of Section 8(a) of the Hindu Succession Act. If the principle in Gulam Abbas (supra) applies, then, despite the fact that what

was purported to be released by Shri Chandran, was a mere spec successonis or expectation his conduct in transferring/releasing his rights for valuable consideration, would give rise to an estoppel. The effect of the estoppel cannot be warded off by persons claiming through the person whose conduct has generated the estoppel. We also find no merit at all in the attempt at drawing a distinction based on religion. The principle of estoppel applies without such distinction.

24.  Having received valuable consideration and allowed his father Shri Sengalani Chettair to proceed on the basis that he was free to deal with the property without the prospect of being haunted by any claim whatsoever as regards the property by Shri Chandran, a clear estoppel sprang into existence following the receipt of consideration by Shri Chandran. Estoppel would shut out in equity any claim otherwise either by Shri Chandran or his children, viz., the appellants.

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL Nos.521-522 OF 2023

ELUMALAI @ VENKATESAN & ANR  Vs M. KAMALA AND ORS. & ETC

Author: K.M. JOSEPH, J.

DATED: JANUARY 25, 2023.

Print Page

Is a Child Adopted By Widow After the Death Of a Government Employee Entitled To Family Pension?

It is necessary that the scope of the benefit of family pension be restricted only to sons or daughters legally adopted by the government servant, during his/her lifetime. The definition of 'family' is narrowly worded under the CCS (Pension) Rules, in the specific context of the entitlement to 'family pension' and in relation to the government servant. Therefore, the word "adoption" in Rule 54(14)(b)(ii) of the CCS (Pension) Rules, in the context of grant of family pension, must be restricted to an adoption made by a government servant during his/her lifetime and must not be extended to a case of adoption made by a surviving spouse of the government servant after his/her death. This is because the object of the provision is to lend succour to a son till he attains the age of twenty-five years and unmarried or widowed or divorced daughter; similarly to the adopted son or unmarried adopted daughter when such an adoption had been made by the government servant during his/her lifetime.

 IN THE SUPREME COURT OF INDIA

Civil Appeal No. 386 of 2023 

Ram Shridhar Chimurkar Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

K.M. Joseph and B.V. Nagarathna, JJ.

Author: B.V. Nagarathna, J.

Decided On: 17.01.2023.

Citation: MANU/SC/0041/2023

Print Page

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

Print Page

Whether son can challenge alienation of joint family property by father for legal necessity?

  Once the factum of existence of legal necessity

stood proved, then, in our view, no co-coparcener

(son) has a right to challenge the sale made by the

karta of his family. The plaintiff being a son was one of

the co-coparceners along with his father Pritam Singh.

He had no right to challenge such sale in the light of

findings of legal necessity being recorded against him.

It was more so when the plaintiff failed to prove by any

evidence that there was no legal necessity for sale of

the suit land or that the evidence adduced by the

defendants to prove the factum of existence of legal

necessity was either insufficient or irrelevant or no

evidence at all.” {Para 26} 

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 7037 OF 2021

BEEREDDY DASARATHARAMI REDDY  Vs V. MANJUNATH AND ANOTHER 

Author: SANJIV KHANNA, J.

Dated: DECEMBER 13, 2021.

Print Page

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

Print Page

Whether the father can claim right to sperm of his deceased son without consent of the wife of the dead?

Learned counsel relies on the parental

relationship of the petitioner and the deceased to assert

the petitioner’s right to collect such sperm, irrespective

of the permission of the wife of the deceased. In the

alternative, counsel submits, the respondent no. 4

ought to be directed to give her ‘no-objection’ or, at

least, to respond to the request of the petitioner.

However, the petitioner’s prayers have to be

refused on both counts.

As far as the alleged right of the petitioner to

collect such preserved sperm of his son, contrary to the

arguments advanced by counsel, the petitioner does not

have any ‘fundamental right’ to such permission,

merely by dint of his father-son relationship with the

deceased. The sperm preserved at the St. Stephen

Hospital belonged to the deceased and, since the

deceased was in matrimonial relationship with the

respondent no. 4 at the juncture of his demise, the only

other person, apart from the deceased, having any right

to it is his wife, that is, the respondent no. 4. The

father-son relationship of the petitioner and the

deceased does not entail any such right of the petitioner

to the progeny of his son. As such, the right espoused

by the petitioner for himself is illusory and nonexistent.

As far as the prayer for a direction upon the

respondent no. 4 to respond to the petitioner’s

communication is concerned, the same is beyond the

scope of the writ court, since the matter does not

involve any violation of fundamental or statutory right,

nor does the respondent no. 4 come within the

definition of ‘State’ as envisaged under Article 12 of the

Constitution of India.

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION

APPELLATE SIDE

W.P.A. No. 4553 of 2020

Asok Kumar Chatterjee Vs. The Union of India & Ors.

Dated: 19-1-2021

Print Page

Whether a son conducting business with father can claim that it is a joint family business if father has started the said business with his self-acquired property?

In Ramaswami Nayakar v. Raja Padayachi MANU/TN/0247/1925 : AIR1926Mad963 , it has been held that the question whether the self-acquired property of a member of a joint Hindu family has been thrown by him into the common stock or not is a question of fact. In Pearey Lal v. Nanak Chand MANU/PR/0008/1948 : (1948) 61 L.W. 437, the Privy Council had to consider a case where a father, who had no ancestral property, started a business and his son claimed that by reason of his association in the business the character of the business became a joint family business. It has been held in that decision that the onus of proving that the separate business of the father became joint family business, especially when there is no-ancestral property, is heavy on the son and that it is for the son to prove that he was associated in the business in such a manner as to raise a reasonable inference that the father intended to make and did make his business a joint family business.  {Para 10}

IN THE HIGH COURT OF MADRAS

Decided On: 21.11.1969

 P.L.N. Paramasivam Vs.  P.K. Ramaswami Gounder and Ors.

Print Page

Whether a son can claim an injunction against mother restraining her from dispossessing him from the property bequeathed to him in the mutual will?

Moreover, from the tenor of the judgments, it is evident that the rights in favour of the ultimate beneficiary under the mutual Will are crystallized on the demise of either of the executants and during the lifetime of the other executant of the mutual Will. Meera Dewan supra was also filed during the lifetime of the surviving spouse. Reference may also be made to Jagan Singh Vs. Dhanwanti MANU/SC/0046/2012 : (2012) 2 SCC 628 which was also a suit for injunction during the lifetime of the surviving spouse who along with the other, who had since died, had made a mutual Will. Resultantly it follows that the defendant No. 2 during her lifetime cannot sell, alienate, transfer or otherwise deal with the property, so as to deprive the plaintiffs of what has been devised in their favour under the mutual Will of their parents and the plaintiffs have a cause of action in praesenti to restrain the defendant No. 2 from doing so. Though the defendant No. 2, as per judgments aforesaid would be entitled to make a Will in contravention of the mutual Will but whosoever receives the property under the said Will of defendant No. 2 would also be bound to the plaintiffs in terms of the mutual Will.

25. The plaintiffs however besides seeking to so restrain the defendant No. 2, are also seeking to restrain the defendants from dispossessing the plaintiffs from the portion of the property in their occupation. The question is, whether the plaintiffs, during the lifetime of defendant No. 2, are entitled to continue in possession/occupation against the wish of defendant No. 2. The ownership of the portion of the property bequeathed under the mutual Will in favour of the plaintiffs comes into effect only on the demise of defendant No. 2. On first blush, it appears that the defendant No. 2, in praesenti being the owner of the property, is entitled to dispossessed the plaintiffs. However, on further consideration and finding it to be the admitted position that the plaintiffs, since the lifetime of Wing Commander N.N. Bahl have been residing on the upper floors of the property and not finding any provision in the mutual Will with respect to dispossession of the plaintiffs therefrom and in the light of use in the mutual Will of the words "shall rest", I am of the view that the resting of the property in the defendant No. 2, after the demise of Wing Commander N.N. Bahl, even though to the exclusion of his other heirs, is without any right to so dispossessed the plaintiffs from what has ultimately been bequeathed to them. Though the plaintiffs during the lifetime of defendant No. 2 have no ownership or other rights even in the portion ultimately bequeathed to them, so as to entitle them to deal therewith but in the absence of any right found in favour of defendant No. 2 to so dispossess the plaintiffs, the plaintiffs are entitled to permanent injunction against dispossession also, including through legal process. Though the counsel for the defendants cited Dilip D. Chowdhari supra in this context and contended that therein specifically right to continue in occupation had been conferred and which is not so in this case but I am unable to agree. In the present case, owing to the peculiarities pointed out, the plaintiffs even in the absence of any specific clause in the mutual Will permitting them to continue in occupation, are found to be entitled to continue in occupation.
 The plaintiffs, as aforesaid, are found entitled also to the relief of restraining the defendants from dispossessing the plaintiffs from the first and second floors of house No. D-859, New Friends Colony, New Delhi, which under the mutual Will, had been bequeathed to the plaintiffs

IN THE HIGH COURT OF DELHI

CS(OS) 78/2016, IAs Nos. 2362/2016 (u/O XXXIX R-1, 2 CPC), 

Decided On: 25.04.2020

 Vickram Bahl   Vs.  Siddhartha Bahl and Ors.

Print Page

Does the son refuse to pay maintenance to the mother taking a plea that his father is liable to maintain her?

 The argument of learned Advocate Shri R.N. Borulkar does not at all appeal to reason if special provision contained in Section 125(l)(d), Cr.P.C., 1973, is taken into consideration. No doubt, factually, the respondent No. 1 is legally wedded wife of respondent No. 2 but the petitioner, being real son of respondent No. l, cannot successfully absolve himself from his statutory duty towards his mother in the matter of providing monthly allowance for her maintenance if she is found penniless. It is to be noted that when application under Section 125 was filed in the Family Court in 1995, the respondent No. 1 was 58 years old. We are in the beginning of years 2000. Now the respondent No. 1 is approximately 62 years of age. Her husband i.e. respondent No. 2 was 63 years of age on the date of filing of the application for maintenance. Therefore, today, he is approximately, 67 years of age. The respondent No. 2 retired long back as a teacher. He is getting pensionary benefits. It has come in the evidence that he receives monthly pension of Rs. 2,496/-. The petitioner No. 2 is a patient of diabetes and sodalities and, therefore, he requires constant medical treatment. Respondent No. 1 has absolutely no source of income of her own. In the given circumstances, she cannot expect any monetary assistance from her husband i.e. respondent No. 2. Therefore, only remedy available to such a helpless mother is to claim maintenance from her son. It is very unfortunate that an affluent son tries to avoid his moral as well as statutory obligation in the matter of payment of maintenance to his mother on the ground that it is primary duty of respondent No. 2, being husband, to maintain respondent No. 1.(Para 14)

IN THE HIGH COURT OF BOMBAY

Criminal Revn. Appln. No. 272 of 1996

Decided On: 02.03.2000

 Mahendrakumar  Vs.   Gulabbai and Ors.

Hon'ble Judges/Coram:

B.B. Vagyani, J.

Citations: 2001 CriLJ 2111

Print Page

Whether property received by son from father by way of gift or will is self acquired property or ancestral property?

The controversy arises, however, on the question as to what kind of interest a son would take in the self-acquired property of his father which he receives by way of gift or testamentary bequest from him, vis-a-vis his own male issue. Does it remain self-acquired property in his hands also, untrammeled by the rights of his sons and grandsons or does it become ancestral property in his hands, though not obtained by descent, in which his male issue become co-owners with him?......

11. In view of the settled law that a Mitakshara father has right of disposition over his self-acquired property to which no exception can be taken by his male descendants, it is in our opinion not possible to hold that such property bequeathed or gifted to a son must necessarily, and under all circumstances, rank as ancestral property in the hands of the donee in which his sons would acquire co-ordinate interest...

16. Still further, it was held that the father's gifts are exempt from partition. The reason for this distinction is that the theory of equal ownership between the father and the son in the ancestral property is not applicable to the father's gifts at all. The Court held as under:

12. ...But when the father obtains the grandfather's property by way of gift, he receives it not because he is a son or has any legal right to such property but because his father chose to bestow a favour on him which he could have bestowed on any other person as well. The interest which he takes in such property must depend upon the will of the grantor. A good deal of confusion, we think, has arisen by not keeping this distinction in mind. To find out whether a property is or is not ancestral in the hands of a particular person, not merely the relationship between the original and the present holder but the mode of transmission also must be looked to; and the property can ordinarily be reckoned as ancestral only if the present holder has got it by virtue of his being a son or descendant of the original owner. The Mitakshara, we think, is fairly clear on this point. It has placed the father's gifts under a separate category altogether and in more places than one has declared them exempt from partition. 

Our conclusion, therefore, is that a property gifted by a father to his son could not become ancestral property in the hands of the donee simply by reason of the fact that the donee got it from his father or ancestor.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 7528 of 2019 

Decided On: 23.09.2019

Govindbhai Chhotabhai Patel  Vs. Patel Ramanbhai Mathurbhai

Hon'ble Judges/Coram:

L. Nageswara Rao and Hemant Gupta, JJ.

Citation: AIR 2019 SC 4822

Print Page

Whether father can be held guilty for abetment of suicide of son if father is drunkard?

 In Father Peter Paul Antony Vs. State of Maharashtra,

reported in 2014 ALL MR (Cri) 3429, in paragraph nos. 20 and

21, this Court observed thus:

“20. In the light of above facts and settled legal

position, it is noted that even if a person would

commit suicide because of certain acts of the accused,

the accused cannot be said to have committed

abetment of suicide by the deceased unless the

accused would intend, while causing such acts to the

victim, that he/she should commit suicide. As such, it

is necessary for the prosecution to establish that by his

acts, the applicant/accused could reasonably foresee

that because of his conduct, the victim was almost

certain or at least, quite likely to commit suicide.

Unless this is established, a person cannot be charged

of having abetted commission of suicide, even if,

suicide has been committed as a result of some of the

acts committed by the accused.

In the case of Sanju (supra), it is seen that

even in the case where the accused had uttered words

such as "go and die" in abusive and humiliating

language which, allegedly, led to committing of

suicide, it was held that it would not amount to

instigation and consequently, there would be no

offence of abetment of suicide.

21. In the application on hand, there is

absolutely no evidence to establish that on the day of

incident or immediately prior to the deceased

committing suicide, applicant has instigated or

abetted deceased to commit the same. In that view of

the matter, applicant cannot be attributed the

requisite mens rea so as to hold him guilty as abettor.

This appears to be fundamental defect in the case of

prosecution and it does not spell out any offence

punishable under Section 305 of Indian Penal Code.

19. Thus, I am of the view that the deceased was not

denied any basic amenities to his life by the appellant. Further,

though it is the case of the prosecution that the deceased used to

prosecute his studies, there is nothing brought on record to show

that at any point of time, the deceased was declared unsuccessful

in any of his academic year. In the light of evidence of Hemant

(PW4) and Pooja (PW2), it is clear that there was no objection for

the deceased even to withdraw huge amounts from the account of

appellant by using ATM though the deceased, who was only in the

9th standard. Not only that, this evidence would show that the

deceased was also permitted to retain an amount of Rs.1,000/-

and looking to his age, in my view, it is a very huge amount. The

admitted position also speaks that the mother of the deceased was

a psychic patient having nothing to do with drinking of the

appellant. Therefore, he used to be always under depressed

condition. Different persons may react differently to the same

situation. Therefore, merely because the deceased by writing a

note mentioning about the drinking habit of his father and

committed suicide, in my view, it cannot be treated as an

abetment, especially when the prosecution evidence falls short to

show that there used to be ill treatment at the hands of the

appellant under the influence of liquor to the deceased so as to

drive the deceased to take the extreme step of his life.

In my view, the learned Judge of the Court below has

swayed away with the fact that the deceased boy was required to

commit suicide for an admitted position that the appellant was a

drunkard. Merely drinking can never be an abetment for a person

to commit suicide.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH AT NAGPUR

CRIMINAL APPEAL NO.391/2015

Ramrao Kisan Rathod, Vs State of Maharashtra 

CORAM:- V. M. DESHPANDE, J.

DATED :- 04.01.2020.

Print Page

Whether it can be held that father has subletted tenanted premises to son if both are residing in joint family?

 As far as subletting of tenanted premises is concerned, evidence on record reveals that there is no parting of possession of tenanted premises in favour of respondent No. 2. Respondent No. 2 is the son of Amarjit Singh who is the Proprietor of the tenant - Firm. Both father and son are admittedly living jointly having a common mess. Therefore, it is rightly held by both the learned courts below that the petitioner failed to prove that respondent No. 2 is having exclusive control over the business being run in the tenanted premises. Both the learned courts have rendered concurrent findings of fact on a correct appreciation of the evidence on record.

IN THE HIGH COURT OF PUNJAB AND HARYANA

Civil Revision No. 3236 of 2004 (O&M)

Decided On: 14.02.2019

 Moorti Shri Sita Ram Vs.  Amar Metal Works and Ors.

Hon'ble Judges/Coram:

Lisa Gill, J.

Citation: 2019(1) RCR(Rent) 421

Print Page

Calcutta HC: Mother is entitled to claim relief under domestic violence Act against son

In the present case, the petitioner and the opposite party are related

with each other i.e. the relationship of son and mother. They have been in a

relationship with each other where both the parties lived together in a

residence.

The Learned Courts below after considering the evidence adduced by the

parties and the materials placed on record came to the concurrent findings

that the present opposite party was entitled to get a protection order under

Section 18 of the Act of 2005, monetary relief including medical expenses @

rate of Rs.8,000/- per month from the date of the order and also entitled to get

Rs.50,000/- as damages for mental torture and emotional distress.

Both the Learned Courts elaborately analyzed the evidence on record,

the relationship between the parties, their economic condition and the income

of the other two sons of the present opposite party/mother. Thereafter came to

the conclusion that the aggrieved party/mother was entitled to get the reliefs

under the Act of 2005. The conclusion drawn by the Learned Courts below is

based on facts and law.

It is a settled principle of law that in exercise of its power under Section

482 of the Code of Criminal Procedure, the High Court should not, in the

absence of perversity, upset concurrent factual findings of the Trial Court and

Appellate Court. Moreso, the High Court in exercise of its inherent power

should not reanalyze and re-assess the materials particularly the evidence on

record.

On perusal of the entire materials on record, it cannot be held that the

Learned Courts below committed an error in holding that the present opposite

party/mother is entitled to get the reliefs under the Protection of Women from

Domestic Violence Act.

IN THE HIGH COURT AT CALCUTTA

Criminal Revisional Jurisdiction

C.R.R. 2126 of 2015

Goutam Chanda Vs  Gouri Rani Chandan 

Judgment on : 02.12.2019

Present:

The Hon’ble Justice Madhumati Mitra

Print Page

Whether son who is given in adoption can claim partition of property of biological father?

 The suit was fled in the year 1982. The documents fled in

this appeal along with Civil Application No. 365 of 2014 show that sale deed

executed by the plaintiff in favour of Moreshwar Deotale is of the

year 2003. The 7/12 extracts of Survey No. 49/3, 24 and 25/1 show

the name of plaintiff as “Pandhari Fakira Mude. All the material

documents filed/proved by the defendants clearly show that appellant

is not the son of Mahadeo Mude. He was given in adoption to Fakira

Mude when plaintif was aged about two years. Since then, plaintiff is

behaving a a son of Fakira Mude. The admission of plaintiff in his

cross-examination is very material. In the cross-examination, plaintiff has stated that defendant nos. 1 and 3 never cultivated the land of Fakira. He has denied material pleadings in the plaint in the cross examination.

He has stated in his cross-examination that he was

cultivating sixteen acres of land along with Fakira. He had purchased

nine acres of land from one Kalamkar and he sold that land to Upase.

He has further stated that land was purchased from the income of

agricultural lands of Fakira. This itself shows that he was residing with

Fakira and as a son he had purchased agricultural land from Kalamkar

out of the income of agricultural land of Fakira. From the perusal of

the cross-examination of the plaintiff, it appears that he has given

evasive answers. In view of the material documents placed on record,

his evidence is not reliable. It appears from his cross-examination that

all the documents [Exhs.133 to 144] were collected by his son after

filing of the suit. The main brain for filing the suit is not the plaintiff,

but his son. The admission of plaintiff in his cross-examination shows

that his father Mahadeo died in 1963. Since then, till filing of the suit

in the year 2001, he did not claim any partition from the defendants.

The silence for a long time on the part of plaintiff itself shows that he

was given in adoption to Fakira. His conduct shows that he is adoptive

son of Fakira. His admissions and documents clearly show that he has

inherited the property left by his adoptive father Fakira. Therefore, he

cannot claim any partition in the property of his real father Mahadeo.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

NAGPUR BENCH : NAGPUR

Second Appeal No. 79 of 2007

Pandhari Mahadeo Mude, Vs  Vithoba Mahadeo Mude,

CORAM : M. G. GIRATKAR, J.

Dated : 17th October, 2019

Print Page