FAQ AND ANSWERS ON LAND LAWS

IN MVC ACCIDENT CLAIMS PERMANENT DISABILITY TO EARN IS TO BE SEEN RATHER THAN MEDICAL DISABILITY 2011 SC

2011-11-05T10:33:00.000-07:00

Justice G.S. Singhvi, and Justice Asok Kumar Ganguly in a case of Sanjay Batham vs Munnalal Parihar & Ors. Decided on 1 November, 2011 Disability refers to any restriction or lack of ability to perform an activity in the manner considered normal for a human being. Permanent disability refers to the residuary incapacity or loss of use of some part of the body, found existing at the end of the period of treatment and recuperation, after achieving the maximum bodily improvement or recovery which is likely to remain for the remainder life of the injured. Temporary disability refers to the incapacity or loss of use of some part of the body on account of the injury, which will cease to exist at the end of the period of treatment and recuperation. Permanent disability can be either partial or total. Partial permanent disability refers to a person's inability to perform all the duties and bodily functions that he could perform before the accident, though he is able to perform some of them and is still able to engage in some gainful activity. Total permanent disability refers to a person's inability to perform any avocation or employment related activities as a result of the accident. The permanent disabilities that may arise from motor accident injuries, are of a much wider range when compared to the physical disabilities which are enumerated in the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995 ("the Disabilities Act", for short). But if any of the disabilities enumerated in Section 2(i) of the Disabilities Act are the result of injuries sustained in a motor accident, they can be permanent disabilities for the purpose of claiming compensation. The percentage of permanent disability is expressed by the doctors with reference to the whole body, or more often than not, with reference to a particular limb. When a disability certificate states that the injured has suffered permanent disability to an extent of 45% of the left lower limb, it is not the same as 45% permanent disability with reference to the whole body. The extent of disability of a limb (or part of the body) expressed in terms of a percentage of the total functions of that limb, obviously cannot be assumed to be the extent of disability of the whole body. If there is 60% permanent disability of the right hand and 80% permanent disability of left leg, it does not mean that the extent of permanent disability with reference to the whole body is 140% (that is 80% plus 60%). If different parts of the body have suffered different percentages of disabilities, the sum total thereof expressed in terms of the permanent disability with reference to the whole body cannot obviously exceed 100%.

MENTAL CRUELTY TO A HUSBAND AS RECOGNISED BY MATERIALS ON RECORD BY SC 2011

2011-10-06T00:14:00.000-07:00

Justice P. Sathasivam, and Justice B.S. Chauhan in Pankaj Mahajan vs Dimple @ Kajal on 30 September, 2011 observed that “It is well settled that giving repeated threats to commit suicide amounts to cruelty. When such a thing is repeated in the form of sign or gesture, no spouse can live peacefully. In the case on hand, the appellant-husband has placed adequate materials to show that the respondent-wife used to give repeated threats to commit suicide and once even tried to commit suicide by jumping from the terrace. Cruelty postulates a treatment of a spouse with such cruelty as to create reasonable apprehension in his mind that it would be harmful or injurious for him to live with the other party. The acts of the respondent-wife are of such quality or magnitude and consequence as to cause pain, agony and suffering to the appellant-husband which amounted to cruelty in matrimonial law. From the pleadings and evidence, the following instances of cruelty are specifically pleaded and stated.”

They are:
i. Giving repeated threats to commit suicide and even trying to commit suicide on one occasion by jumping from the terrace.
ii. Pushing the appellant from the staircase resulting into fracture of his right forearm.
iii. Slapping the appellant and assaulting him.
iv. Misbehaving with the colleagues and relatives of the appellant causing humiliation and embarrassment to him.
v. Not attending to household chores and not even making food for the appellant, leaving him to fend for himself.
vi. Not taking care of the baby.
vii. Insulting the parents of the appellant and misbehaving with them.
viii. Forcing the appellant to live separately from his parents.
ix. Causing nuisance to the landlord's family of the appellant, causing the said landlord to force the appellant to vacate the premises.
x. Repeated fits of insanity, abnormal behaviour causing great mental tension to the appellant.
xi. Always quarreling with the appellant and abusing him.
xii. Always behaving in an abnormal manner and doing weird acts causing great mental cruelty to the appellant.

All these factual details culled out from the pleadings and evidence of both the parties clearly show the conduct of the respondent-wife towards the appellant-husband.

READ FULL JUDGMENT

AN ORDER EVEN IF VOID NEEDS TO BE CHALLENGED BEFORE APPROPRIATE FORUM

2011-02-11T17:54:00.000-08:00

In a case before The Supreme Court Of India, Krishnadevi Malchand Kamathia & ... vs Bombay Enviornmental Action ... Decided on 31 January, 2011 By bench consisting of Justice P Sathasivam, and Justice Dr B.S. Chauhan, It is settled legal proposition that even if an order is void, it requires to be so declared by a competent forum and it is not permissible for any person to ignore the same merely because in his opinion the order is void. In State of Kerala v. M.K. Kunhikannan Nambiar Manjeri Manikoth Naduvil (dead) & Ors., AIR 1996 SC 906; Tayabbhai M. Bagasarwalla & Anr. v. Hind Rubber Industries Pvt. Ltd. etc, AIR 1997 SC 1240; M. Meenakshi & Ors. v. Metadin Agarwal (dead) by L.Rs. & Ors. (2006) 7 SCC 470; and Sneh Gupta v. Devi Sarup & Ors., (2009) 6 SCC 194, this Court held that whether an order is valid or void, cannot be determined by the parties. For setting aside such an order, even if void, the party has to approach the appropriate forum. In State of Punjab & Ors. v. Gurdev Singh, Ashok Kumar, AIR 1991 SC 2219, this Court held that a party aggrieved by the invalidity of an order has to approach the court for relief of declaration that the order against him is inoperative and therefore, not binding upon him. While deciding the said case, this Court placed reliance upon the judgment in Smith v. East Ellore Rural District Council, [1956] 1 All ER 855 wherein Lord Radcliffe observed:- "An order, even if not made in good faith is still an act capable of legal consequences. It bears no brand of invalidity on its forehead. Unless the necessary proceedings are taken at law to establish the cause of invalidity and to get it quashed or otherwise upset, it will remain as effective for its ostensible purpose as the most impeccable of orders." In Sultan Sadik v. Sanjay Raj Subba & Ors., AIR 2004 SC 1377, this Court took a similar view observing that once an order is declared non-est by the Court only then the judgment of nullity would operate erga omnes i.e. for and against everyone concerned. Such a declaration is permissible if the court comes to the conclusion that the author of the order lacks inherent jurisdiction/competence and therefore, it comes to the conclusion that the order suffers from patent and latent invalidity. Thus, from the above it emerges that even if the order/notification is void/voidable, the party aggrieved by the same cannot decide that the said order/notification is not binding upon it. It has to approach the court for seeking such declaration. The order may be hypothetically a nullity and even if its invalidity is challenged before the court in a given circumstance, the court may refuse to quash the same on various grounds including the standing of the petitioner or on the ground of delay or on the doctrine of waiver or any other legal reason. The order may be void for one purpose or for one person, it may not be so for another purpose or another person.

CROSS EXAMINATION AND ITS EFFECT IN APPRECIATION OF EVIDENCE

2011-02-10T09:26:00.000-08:00

Sat Paul vs Delhi Administration AIR 1976 SC 294 “It is important to note that the English statute differs materially from the law contained in the Indian Evidence Act in regard to cross-examination and contradiction of his own witness by a party. Under the English Law, a party is not permitted to impeach the credit of his own witness by general evidence of his bad character, shady antecedents or previous conviction. In India, this can be done with the consent of the court under Section 155. ………. the grant of such leave has been left completely to the discretion of the Court, the exercise of which is not fettered by or dependent upon the "hostility" or "adverseness" of the witness. In this respect, the Indian Evidence Act is in advance of the English law………………….. From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as Washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should, as matter of prudence, discard his evidence in toto.”

Ennen Castings Pvt. Ltd. (In Liquidation) vs M.M. Sundaresh And Ors. AIR 2003 Kant 293, JUSTICE N KUMAR Considering the question whether a co-respondent can cross-examine the other respondent, who has given evidence against him observed that:- “The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood. The object is to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery of truth. It is beyond any doubt the greatest legal engine ever invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.”……….. As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examine the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others, if he gives any testimony to incriminate them. A defendant may cross-examine his co-defendant who gives evidence or any of his co-defendant's witnesses, if his co-defendant's interest is hostile to his own…………………..Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross-examine the person who had given the evidence against him. It is only after such an opportunity is given, and the witness is cross examined that evidence becomes admissible……………. Therefore, it is very clear from the aforesaid passages that it is the settled law that no evidence should be received against one who had no opportunity of testing it by cross-examination ; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant-respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondents, then before the court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the court can act.

Madarbi, W/O Mahaboob Sab vs Mulla Sab Mardan Sab ILR 1996 KAR 1674, Referring a case of PANCHAPPA v. STATE OF KARNATAKA, I.L.R 1989 Karnataka 974 wherein it has been held that any minor discrepancy in the order which does not affect the merits and does not result in miscarriage of justice is to be overlooked. Right to cross-examine the witness is a fundamental right of a party against whom the witness has deposed. If a party is not given an opportunity to cross-examine the witness, then it cannot be said to be a minor discrepancy which does not go to the root of the matter. In such a context, the Court cannot brush it aside as a minor contradiction or minor discrepancy and confirm the order of the Tribunal based on such evidence.

MARY M.D'SOUZA v. MUNICIPAL COMMISSIONER, MANGALORE CITY MUNICIPALITY, 1968(1) Kar.L.J. 90, wherein this Court has held that a plea which has not been raised in the affidavit in support of the Writ Petition cannot be permitted to be raised at the hearing without the leave of the Court.

LEGAL REPRESENTATIVES IN CIVIL LAW

2011-02-10T09:24:00.000-08:00

Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".

The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".

Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."

No oral testimony can be considered satisfactory or valid unless it is tested by cross-examination

2011-02-10T09:18:00.001-08:00

AIR 1989 SC 162 Supreme Court in the case of Modula India v. Kamakshya Singh Deo, and has held as under.- "It is a well-established proposition that no oral testimony can be considered satisfactory or valid unless it is tested by cross-examination. The mere statement of the plaintiffs witnesses cannot constitute the plaintiffs evidence in the case unless and until it is tested by cross-examination. The right of the defence to cross-examine the plaintiffs witnesses can, therefore, be looked upon not as a part of its own strategy of defence but rather as a requirement without which the plaintiffs evidence cannot be acted upon. Looked at from this point of view it should be possible to take the view that, though the defence of the tenant has been struck out, there is nothing in law to preclude him from demonstrating to the Court that the plaintiffs witnesses are not speaking the truth or that the evidence put forward by the plaintiff is not sufficient to fulfill the terms of the statute". Further, it held.- "We, therefore, think that the defendant should be allowed his right of cross-examination and arguments. But, we are equally clear that this right should be subject to certain important safeguards. The first of these is that the defendant cannot be allowed to lead his own evidence. None of the observations or decisions cited have gone to the extent of suggesting that, in spite of the fact that the defence has been struck off, the defendant can adduce evidence of his own or try to substantiate his own case"…… Supreme Court had to say.- "Again under Rule 10 when any party from whom a written statement is required fails to present the same within the time permitted or fixed by the Court, the Court "shall pronounce judgment against him or make such order in relation to the suit as it thinks fit". It will be seen that these rules are only permissive in nature. They enable the Court in an appropriate case to pronounce a decree straightaway on the basis of the plaint and the averments contained therein. Though the present language of Rule 10 says that the Court "shall" pronounce judgment against him, it is obvious from the language of the rule that there is still an option with the Court either to pronounce judgment on the basis of the plaint against the defendant or to make such other appropriate order as the Court may think fit. Therefore, there is nothing in these rules, which makes it mandatory for the Court to pass a decree in favour of the plaintiff straightaway because a written statement has not been filed".

CONSEQUENCES OF NOT FILING WRITTEN STATEMENT

2011-02-10T08:08:00.000-08:00

Basalingappa Chinnappa Goudar And Ors. vs Shantavva And Ors ILR 2002 KAR 260, 2001 (6) KarLJ 460 “In a suit the defendant has the right to show that the case pleaded by the plaintiff is false or cannot be acted upon and in addition to that he can put forth his defence to defeat the claim of the plaintiff. By not filing the written statement he loses his right to put forth his defence to defeat the claim of the plaintiff only but he does not lose his right to demolish the case of the plaintiff by cross-examination. The defendant by cross-examination of the plaintiff and his witnesses can demolish the case of the plaintiff and also address arguments on the basis of the evidence led by the plaintiff, and also make submission on law and satisfy the Court that on the material on record, the plaintiffs case cannot be accepted and no decree can be passed in favour of the plaintiff……….. However, it is made clear that the defendant would not be entitled to lead any evidence nor his cross-examination be permitted to travel beyond the very limited objective of pointing out the falsity or weakness of the plaintiffs case, and he be permitted to project his defence either directly or indirectly or in the form of suggestions to the plaintiffs witnesses.”

RIGHT OF CROSS EXAMINATION

2011-02-10T08:03:00.000-08:00

In STATE OF MADHYA PRADESH v. CHINTAMAN SADASHIVA WAISHAMPAYAN, AIR 1961 SC 1623 the Supreme Court while finding flaw in the procedure of the enquiry held thus: "6..... Thus, it was of very great importance for the defence to cross-examine these two witnesses, and for that: purpose the respondent wanted copies of their prior statements recorded by Mr. Ghatwal in his preliminary enquiry. It is difficult to understand how these statements could be regarded as secret papers, for that alone is the reason given for not supplying their copies to the respondent. Failure to supply the said copies to the respondent made it almost impossible for the respondent to submit the said two witnesses to an effective cross-examination; and that in substance deprived the respondent of a reasonable opportunity to meet the charge……….. 10. It is hardly necessary to emphasise that the right to cross-examine the witnesses who give evidence against him is a very valuable right and if it appears that effective exercise of this right has been prevented by the enquiry officer by not giving to the officer relevant documents to which he is entitled, that inevitably would be that the enquiry had not been held in accordance with rules of natural justice."

AIR 1977 SC 170 the Apex Court has held that: "A party will not normally be allowed to cross-examine its own witness and declare the same hostile, unless the Court is satisfied that the statement of the witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get out the truth."

AMENDMENT OF WRITTEN STATEMENT & FILING OF ADDITIONAL WRITTEN STATEMENT

2011-02-10T07:40:00.001-08:00

P.A. Jayalakshmi VS H. Saradha & Ors. JUSTICE S.B. Sinha JUSTICE Deepak Verma, New Delhi; July 21, 2009, Code of Civil Procedure, 1908: Or. VIII, r. 9 and proviso to Or. VI, r. 17 - Additional pleadings - Suit

for partition - Application filed by defendant-appellant seeking leave to file additional written statement - Rejected by Courts below - Justification of - Held: On facts, justified - The application was filed at a much belated stage - Statutory limitations brought about by reason of amendments in CPC to be kept in mind. Respondents filed suit for partition in the year 2004. Appellant filed written statement in 2006 and on 1-3-2007, filed application purportedly in terms of Or.VIII, r.9 CPC seeking leave to file additional written statement with regard to a Will in regard to the suit property, which was not mentioned in the written statement. By that time examination of one witness was over. The Will was purportedly executed in 1993 and it was urged by the appellant that she discovered the existence of Will only on 5-2-2007. The said application was dismissed by the Trial Court. Revision petition filed by appellant was dismissed by the High Court. It was contended that the Courts below failed to take into consideration that in effect and substance, appellant's application should have been treated to be one for amendment of written statement as envisaged under Order VI, r.17 CPC and not one for leave to file additional pleadings as envisaged under Or.VIII, r.9 thereof; that the appellant having raised a contention that she discovered the existence of Will only on 5-2-2007, even the requirements of the proviso appended to

Or.VI, r.17 CPC must be held to have been satisfied and that by reason of the said application, the appellant did not bring about any change in the principal contention raised in her written statement as the said Will was sought to be brought on record wherefor requisite pleadings were necessary only to support her case that the property in question was not a joint family property. Dismissing the appeal, the Court held, With a view to put an end to the practice of filing applications for amendments of pleadings belatedly, a proviso was added to Order VI Rule 17 CPC. Order VI Rule 17 speaks of amendment of pleadings whereas Order VIII Rule 9 CPC provides for subsequent pleadings by a defendant. The distinction between the two provisions is evident. Whereas by reason of the former unless a contrary intention is expressed by the court, any amendment carried out in the pleadings shall relate back to the date of filing original thereof, subsequent pleadings stand on different footings.

In the present case, for reasons best known to the appellant, she had chosen to file her application seeking leave to file additional pleadings. Such a stand might have been taken by her with a view to obviate the bar created by reason of the proviso appended to Order VI, Rule 17 of CPC. The firm stand taken by the appellant both before the Trial Court as also the High Court was that her application was under Order VIII, Rule 9 of CPC . At no point of time, a contention was raised that she wanted to amend her pleadings.

Ordinarily at such a belated stage, leave for filing additional written statement is usually not granted. Noticeably one of the plaintiffs was examined on 1.3.2007. Despite the fact that the appellant is said to have discovered the existence of the Will on or about 5.2.2007, no question was put to the said witness with regard to the said Will or otherwise. It is only at a later stage that the aforementioned application for grant of leave to file additional written statement was moved. There cannot be any doubt or dispute that the courts should be liberal in allowing applications for leave to amend pleadings but it is also well settled that the courts must bear in mind the statutory limitations brought about by reason of the Code of Civil Procedure (Amendment) Acts; the proviso appended to Order VI Rule 17 being one of them.

WRITTEN STATEMENT AND ADDITIONAL WRITTEN STATEMENT – DELAY AND CHANGE IN STAND EXPLAINED BY SUPREME COURT

2011-02-10T07:37:00.001-08:00

The Hon’ble Supreme court of India in Olympic Industries VS Mulla Hussainy Bhai Mulla Akberally & Ors. JUSTICE Tarun Chatterjee, JUSTICE H.L. Dattu, July 07, 2009. CODE OF CIVIL PROCEDURE, 1908: Or.8, r.9 - Subsequent pleadings - Additional written statement - Held: Even by filing an amendment or additional written statement, it is open to defendant to add a new ground of defence or to substitute or alter the defence or even to take inconsistent pleas in the written statement so long as the pleadings do not result in causing grave injuries/irretrievable prejudice to plaintiff - Mere delay is not sufficient to refuse amendment of pleadings or an additional written statement. Mere delay is not sufficient to refuse to allow amendment of pleadings or filing of additional written statement under Order 8 Rule 9 of the Code of Civil Procedure, 1908 where no prejudice was caused to the party opposing such amendment or acceptance of additional written statement which could easily be compensated by cost. That apart, the delay in filing the additional written statement has been properly explained by the appellant. Even if the examination of PW-1 or his cross-examination was over, then also, it was open to the court to accept the additional written statement filed by the appellant by awarding some cost against the appellant. Even by filing an amendment or additional written statement, it is open to the defendant to add a new ground of defence or substituting or altering the defence or even taking inconsistent pleas in the written statement as long as the pleadings do not result in causing grave injustice and irretrievable prejudice to plaintiff or displacing him completely. It is well settled that courts should be more generous in allowing the amendment of written statement than in the case of plaint. While allowing additional written statement or refusing to accept the same, the court should only see that if such additional written statement is not accepted, the real controversy between the parties could not be decided. In the instant case, by filing additional written statement, no injustice/prejudice would be caused to the respondents, but that would help the court to decide the real controversy between the parties.

COURT CANNOT IMPOSE COSTS EXCEEDING ITS LIMITS UNDER CPC AND ALSO IT CANNOT DIRECT THE COSTS TO BE PAID TO LEGAL SERVICES AUTHORITY

2011-02-10T07:36:00.000-08:00

The Hon’ble Supreme court of India in ASHOK KUMAR MITTAL VS. RAM KUMAR GUPTA & ANR. 2009(1) SCALE 321 , Justice R V Raveendran, Justice J M Panchal, New Delhi; January 9, 2009 “Exemplary costs - Imposition of - Courts should not exceed the limitations placed by CPC in this regard - Principles and practice relating to administrative law matters cannot be imported mechanically to civil litigation governed by the Code - Levy of huge costs in selected matters made payable to legal Services Authorities or non-party charitable organizations should be avoided - As regards the costs, courts should not exceed or overlook the limitations placed by the Code of Civil Procedure, 1908 with reference to costs in civil litigation. The principles and practices relating to levy of costs in administrative law matters cannot be imported mechanically in relation to civil litigation governed by the Code. On the aspect of the recipient of the costs, once the High Court held that costs had to be paid to the State, it should not have directed payment of the costs to the High Court Legal Services Committee, which being a statutory authority under the Legal Services Authorities Act, 1987, is not the 'State' that spends money on providing judicial infrastructure. Levy of huge amounts as costs in selected cases, made payable to Legal Services Authorities, may invite adverse comments and evoke hostility to legal services in general. The Court has also come across cases of costs being levied and made payable to some non-party charitable organizations. Levy of such costs should be avoided.”

CLARIFICATIONS REGARDING COPY RIGHT QUERIES AND SUGGESTIONS RECIEVED

2011-02-05T04:40:00.001-08:00

Regarding copyright queries being asked by many I quote Supreme court Judgement observations herein below in the case of Eastern Book Company & Ors. Vs D.B. Modak & Anr. AIR 2008 SC 809, the Hon’ble Supreme court headed by Justice B.N. AGRAWAL & Justice P.P. NAOLEKAR observes in the following words and explains in detail and clarifies the position of law as to the copyright in Judgements of courts “In the absence of any agreement to the contrary, the Government shall be the first owner of the copyright in the judgments of the Supreme Court, the same being a Government work in terms of Section 2(k) of the Act. …………… The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. The reproduction or publication of the judgments delivered by the Supreme Court by any number of persons would not be infringement of a copyright of the first owner thereof, namely, the Government, unless it is prohibited…………………. The judicial pronouncements of the Apex Court would be in the public domain and its reproduction or publication would not infringe the copyright. That being the position, the copy-edited judgments would not satisfy the copyright merely by establishing amount of skill, labour and capital put in the inputs of the copy-edited judgments and the original or innovative thoughts for the creativity are completely excluded. Accordingly, original or innovative thoughts are necessary to establish copyright in the author's work. The principle where there is common source the person relying on it must prove that he actually went to the common source from where he borrowed the material, employing his own skill, labour and brain and he did not copy, would not apply to the judgments of the courts because there is no copyright in the judgments of the court, unless so made by the court itself. ………………………... To secure a copyright for the judgments delivered by the court, it is necessary that the labour, skill and capital invested should be sufficient to communicate or impart to the judgment printed in the Report, SCC, some quality or character which the original judgment does not possess and which differentiates the original judgment from the printed one. The Copyright Act is not concerned with the original idea but with the expression of thought. Copyright has nothing to do with originality or literary merit. Copyrighted material is that what is created by the author by his own skill, labour and investment of capital, maybe it is a derivative work which gives a flavour of creativity. The copyright work which comes into being should be original in the sense that by virtue of selection, co-ordination or arrangement of pre-existing data contained in the work, a work somewhat different in character is produced by the author. ……………………….. It is clarified that the decision of this Court would be confined to the judgments of the courts which are in the public domain as by virtue of Section 52 of the Act there is no copyright in the original text of the judgments……………………… Although for establishing a copyright, the creativity standard applies is not that something must be novel or non-obvious, but some amount of creativity in the work to claim a copyright is required. It does require a minimal degree of creativity. Arrangement of the facts or data or the case law is already included in the judgment of the court. Therefore, creativity of the Report, SCC, would only be addition of certain facts or material already published, case law published in another law report and its own arrangement and presentation of the judgment of the court in its own style to make it more user- friendly. …………… when the editor has put an input whereby different Judges' opinion has been shown to have been dissenting or partly dissenting or concurring, etc. It also requires reading of the whole judgment and understanding the questions involved and thereafter finding out whether the Judges have disagreed or have the dissenting opinion or they are partially disagreeing and partially agreeing to the view on a particular law point or even on facts. In these inputs put in by the appellants in the judgments reported in the Report, the appellants have a copyright and nobody is permitted to utilize the same. …………….. It is further directed that the defendant-respondents shall not use the paragraphs made by the appellants in their copy-edited version for internal references and their editor's judgment regarding the opinions expressed by the Judges by using phrases like `concurring', `partly dissenting', etc. on the basis of reported judgments in SCC.”

WHETHER SECOND WIFE SIBLINGS OF HINDU CLAIM PROPERTY RIGHTS

2011-01-29T23:01:00.000-08:00

Yes only with their parents property and not with any ancestral property. In Jinia Keotin and Others v Kumar Sitaram Manjhi and Others, (2003)1 SCC 730 “The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976, which came into force with effect from 27.5.1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the Parliament in enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.”

FOR A CLARIFICATION SOUGHT ON DUTIES OF AN ADVOCATE - KARNATAKA HIGH COURT JUDGEMENT QUOTE

2011-01-09T09:41:00.000-08:00

Hon’ble Justice: Ajit J. Gunjal, J. in a judgement of F. Moily Vs. Lokayuktha, State of Karnataka, Bangalore and Others, Reported in 2010 (5) KarLJ 127 SOURCE: KARNATAKA HIGH COURT WEBSITE “Indeed as to the duty cast on the petitioner as well as the Counsel appearing for the parties is concerned, Hon'ble Mr. Justice MN Venkatachalaiah, former Chief Justice of India, has this to say: "The subject of traditions of the Bar, has quite unfortunately come to be associated with certain indelicate assumptions than the best traditions of the Bar are myth and illusions of by gone times and nostalgia of 19th century. I venture more hopefully to think that the great traditions of Bar have sustained the profession of law which every civilised society cherishes as a part of very valuable inheritance. The high traditions are spring of strength and sustenance in its days of trial. The profession of the lawyer is perhaps the single most powerful for the protection of the liberty of man and the decision of civilised living". Advocates are the inheritors of tradition of scholarship, wisdom, dignity, courage and service. The Advocate by his tradition is under several duties. They comprise of duty to the Court, duty to the profession, duty to the opponent, duty to the client, duty to the self and duty to public and State. The duty of an Advocate to the Court is also equally important. This duty encompasses and comprises courtesy and respect to the Court. An Advocate can differentiate without being abject, independent and fearless without being disrespectful, firmness can co-exist with an equal amount of grace and politeness. Section 49 of the Advocates Act, 1961 would speak about the General Power of the Bar Council of India to make certain rules. For the present, we are concerned with Section 49(1)(c) of the Act, which would speak about the standard of professional conduct and etiquette to be observed by the Advocates. Standard of Professional Conduct and Etiquette is to be found in Chapter 2 of Part VI of Bar Council of India Rules which is framed under Section 49(l)(c) of the Advocates Act read with the proviso would clearly indicate as to the duty of an Advocate towards the Court. We are more concerned with item No. 4 of Section 1 which would read as under. "An Advocate shall use his best efforts to restrain and prevent his client from resorting to sharp or unfair practices or from doing anything in relation to the Court, opposing Counsel or parties which the Advocate himself ought not to do. An Advocate shall refuse to represent the client who persists in such improper conduct. He shall not consider himself a mere mouthpiece of the client and shall exercise his own judgment in the use of restrained language in correspondence, avoiding scurrilous attacks in pleadings, and using intemperate language during arguments in the Court". The Apex Court in the case of M.Y. Shareef and Another v Hon''ble Judges of the Nagpur High Court and Others, AIR 1955 SC 19; has observed thus: "This misconception has to be rooted out by a clear and emphatic pronouncement, and we think it should be widely made known that Counsel who sign applications or pleadings containing matter scandalising the Court without reasonably satisfying themselves about the prima facie existence of adequate grounds therefor, with a view to prevent or delay the course of justice, are themselves guilty of contempt of Court, and that it is no duty of a Counsel to his client to take an interest in such applications; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications".

BUILDING PURCHASE IN BANGALORE WHAT DOCUMENTS WE HAVE TO SEE

2010-08-19T04:39:00.000-07:00

Site in the name of the mother, she was a teacher, she has bought the site with her own money, she has 3 sons all are working and living in US., The building was constructed using 2nd son's NRI money. Do the sons have rights in this property? Mother is selling the property, Does she has all the rights to sell the property? Do we need get some sort of an NOC from sons? like Ratification Deed or so? Is it needed ? Husband is alive. we are planning to buy this property(individual house 12 years old) , what are the legal documents we need to look for in this scenario. Property is in Bangalore, Both mother and father are senior citizens.

ADVICE:- Under Hindu Succession Act Property of female Hindu is her absolute property. In your case it may be possible that they may take a stand that, it is treated as Hindu Joint Family property, created out of joint contributions of all. If there is any evidence as to contribution of her son then take NOC from that son that the contributions he made is out of love and affection and not as a Joint Family Property.
Regarding Documents Required to purchase a property in bangalore depends upon each case to trace its title.
1. RTC of the land in which the site comes (From 1968-present day). This is needed to verify whether land is affected from any PTCL act provisions, or from any Land reforms provisions etc. If such documents does not disclose preliminary title then Index of lands and other documents are required. Hence i said it all depends upon each case.
2. The DC conversion certificate duly verified from the concerned office.
3. The layout approval from the planning authority.
4. Building Plan approval from the local authority.
5. The upto date tax paid reciept from the local municipal bodies. And also khatha extract.
6. Form 3/ Form 10/ Form 9 depending upon particular cases.
7. Encumbrance on the land which can be best advised after verifying records.
8. Affidavit from her sons stating the land and building is her self acquired property.
9. If the property comes beside railway line, or National Highways then NOC from Railways/ NHAI is must before building constructions.
10. The preliminary title to be verified because bangalore is witnessing so many land frauds. (To satisfy -land is not govt land)
ETC
For Registration requirements of documents are simple but for legal verification of title it is laborious task depending on each case.

HINDU SECTION ACT SECTION 14. Property of a female Hindu to be her absolute property
(1) Any property possessed by a Female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.

Explanation: In this sub-section, "property" includes both movable and immovable property acquired by a female Hindu by inheritance or devise, or at a partition, or in lieu of maintenance or arrears of maintenance, or by gift from any person, whether a relative or not, before, at or after her marriage, or by her own skill or exertion, or by purchase or by prescription, or in any other manner whatsoever, and also any such property held by her as stridhana immediately before the commencement of this Act.

(2) Nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property.

INJUNCTION SUIT AND DEFENDANT LEGAL REPRESENTATIVES

2010-08-19T04:10:00.000-07:00

can we bring legal heir's of deceased defendant in bare injunction suit? if no, is there any citation ruled by any state's courts?

Ramachandra vs Laxmana Rao AIR 2000 Kant 298, ILR 2000 KAR 2341, Section 146 of the CPC. This provision reads: "146. Proceedings by or against representatives.--Save as otherwise provided by this Code or by any law for the time being in force, where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him". On an analytical reading of Section 146, one legal position which clearly emerges is that where any legal proceeding may be taken or an application for a legal proceeding may be made by or against any person, then, that proceeding may also be taken or application for the same may be made by or against any persons claiming under him. This provision deals with legal proceedings by or against representatives of the parties to a dispute or to a decree or final order of any competent Court. Its operation is general in nature, except that it is circumscribed by the beginning saving clause "save as otherwise provided by this Code or any law for the time being in force".

The Supreme Court in the case of Jugalkishore Saraf v Raw Cotton Company Limited, AIR 1955 SC 376 has, in regard to the curtailing effect of this saving clause on the scope of Section 146, said: "The effect of the expression "save as otherwise provided in this Code" contained in Section 146 is that a person cannot make an application under Section 146 if other provisions of the Code are applicable to it".

Karnataka High Court has held in Hajaresab -v.- Udachappa, since deceased by his L.Rs., and others. ILR 1984 KAR 900 " Therefore, under these circumstances, what emerges is that though the decree for injunction does not run with the land, still under Section 50 of the Code of Civil Procedure, the legal representatives of the deceased defendant, against whom the decree for injunction is passed, would be liable for violation of that decree. However, their liability, as held in Sakarlal's Case, would be limited to the attachment of the property of the deceased, which has come to their hands. The other penalty imposed by Order 21 Rule 32 of the Code of Civil Procedure, by arrest and detention in Civil prison cannot be enforced in the case of the legal representatives at all."

A REPEATED QUESTION IS BEING ASKED WHETHER IAM ELIGIBLE TO PURCHASE AGRICULTURAL LAND IN KARNATAKA

2010-08-18T21:17:00.000-07:00

It is very strange to see that The Income Tax appellate tribunal in New Delhi has understood the implications of Karnataka Land Reforms in below stated words but our Revenue Department Officials are showing intellectual blindness : In M.V. Chandrashekar (Huf) vs Asstt. Cit, Circle 4(1) on 29 September, 2005 Reported in 2006 5 SOT 960 Delhi, As per the Karnataka Land Reforms Act, 1961, the purchase of agricultural land by the following persons is prohibited under section 80 of the Karnataka Land Reforms Act:
(1) One who is not an agriculturist
(2) One being an agriculturist holds land exceeding ceiling limits (54 acres - 'D' Class land)
(3) One who is not an agricultural labourer
(4) One whose annual income from non-agricultural sources exceeds Rs. 50,000 (earlier the limit was Rs. 12,000) the same has been increased through KLR (2nd Amendment) 1950 Karnataka Act of 1991 with effect from 5-2-1999). New limit 2 lakhs.

In Moulasaheb Lalesaheb Mulla vs Aminsha ILR 1992 KAR 247, It is observed that:- “Therefore, we have independently examined the scope of Section 79A(1) of the Karnataka Land Reforms Act. Under Sub-section (3) thereof acquisition by a person who has assured income of Rs. 12,000/- or more per annum from sources other than agriculture would not be entitled to sustain such acquisition and as such the acquisition would be null and void. Though Sub-sections (3) and (1) read together do convey that impression, such acquisition is not ipso facto null and void. It will become void, only when action is initiated suo moto or on the complaint of others as provided under Section 82 of the said Act and after enquiry being held by the specified officer under Section 83 of the Act if a declaration to that effect is made……………………………….The provisions of the above quoted Section were discussed by this Court in Shivannappa Sidramappa Prantur v. Virupaxappa Allappa Bagi as also in other Judgments referred to above. Under Sections 82 and 83 of the Karnataka Land Reforms Act, after completion of sale it is incumbent on the village officer and every officer of the revenue, registration and land records to report to the prescribed authority i.e., the Assistant Commissioner of the Division about the transaction in respect of any land which is in contravention of the provisions of this Act, and, it is on such report, the Assistant Commissioner is required to make an enquiry regarding the illegal transaction…………………………… Assistant Commissioner ……………… gets his jurisdiction only when the sale is complete and the illegality is reported under Section 82 of the Act. By implication it is not possible to confer jurisdiction which is not envisaged by the Statute.”

The Hon’ble High Court of Karnataka while rendering its decision in the case of Gowtham Tendulkar vs State of Karnataka reported in 2001 (2) Kar LJ 485 has held that provisions of section 79A and 79B results in serious consequences depriving a person of his right to enjoy his property and is in the nature of penalty and that it is obligatory on the part of the Revenue Officer to confirm that requirements of the said provisions are strictly complied with.

In a case before KAT in Manjunath vs The Assistant Commissioner Mysore in APL 400/2009 decided on 21-08-2009 by Hon’ble A. Ramaswamy and N.K. Sudhindra Rao it is observed as follows:- Appellant ………… submitted certificate showing his annual income was 70,000-00………… The Certificate bears the heading Jati / Adaya Pramana Patra and has been issued by the Tahsildar, Mysore Taluk. The Karnataka Land Reforms Act has stipulated that the certificate that the income as assessed to Income Tax under Income Tax Act 1961 should be filed for a period of 5 years preceding the date of sale and the average of five years has to be taken to arrive at a conclusion whether the income is within the stipulated limit or otherwise. The certificate of Tahsildar is of no use as far as the case is concerned”….. “It is pertinent to note that appellant having purchased the lands in question for 11,37,500/- claims that he is an agriculturist and does not account for the income from the agricultural sources bifurcating the same from the non agricultural sources………… It is also necessary to point out that the appellant is silent to mention about the status of the lands in question as on 01-03-1974…………. Not explained the sources of income…….. documents filed by the appellant which is a copy of the declaration U/s 81-A has to be taken into consideration and its validity and relevance to the case on the hand has to be discussed and gone into carefully………. “

The Supreme Court and different High Courts have repeatedly invoked and applied the rule that a person who does not disclose all material facts has no right to be heard on the merits of his grievance - State of Haryana v. Karnal Distillery Co. Ltd. (1977) 2 SCC 431, Vijay Kumar Kathuria v. State of Haryana (1983) 3 SCC 333, Welcome Hotel and others v. State of Andhra Pradesh and others etc. (1983) 4 SCC 575, G. Narayanaswamy Reddy (dead) by LRs. and another v. Government of Karnataka and another (1991) 3 SCC 261, S.P. Chengalvaraya Naidu (dead) by L.Rs. v. Jagannath (dead) by LRs. and others (1994) 1 SCC 1, Agricultural and Processed Food Products v. Oswal Agro Furane and others (1996) 4 SCC 297, Union of India and others v. Muneesh Suneja (2001) 3 SCC 92, Prestige Lights Ltd. v. State Bank of India (2007) 8 SCC 449, Sunil Poddar and others v. Union Bank of India (2008) 2 SCC 326, K.D. Sharma v. Steel Authority of India Ltd. and others (2008) 12 SCC 481, G. Jayshree and others v. Bhagwandas S. Patel and others (2009) 3 SCC 141. When Supreme Court is implementing such principle of law, then false set of material facts disclosed / declared by a person in order to violate the land reforms act should be thrown of this society itself .

LAND REFORMS CASE OF Vijayakumar Shankarayya Sardar vs State Of Karnataka ILR 1993 KAR 2586 Karnataka High Court held that “For proper appreciation of the matter, the provisions of Section 79A of the Act can be read as follows:- "On and from 1st March 1974, no person who or a family or a joint family which has an assured annual income of not less than rupees Fifty thousand (RS TWO LAKH AT PRESENT) from sources other than Agricultural lands shall be entitled to acquire any land whether as land owner, landlord, tenant or mortgagee with possession or otherwise or partly in one capacity and partly in another."

KARNATAKA GOVERNMENT CIRCULAR INSTRUCTIONS IN NO: RD 106 LRA 98 Dt 11-09-1998, Village Accountant…………. should be vigilant and make enquiries immediately. It is his duty under the statue to make a report to the Tahsildar, so that he may hold enquiry and recommend the Assistant Commissioner concerned to initiate action regarding the illegal transaction. But the officials at the lower levels, though making entries in the Revenue records and they are being certified and confirmed by the experienced officer like Revenue Inspector, they are not being reported promptly. They are being reported at a later stage. Thus, the parties are trying to take advantage of it. Further, the K.A.T. has observed collusion between the purchaser of the agricultural land and officials at the lower levels in the Revenue Department. The Karnataka Appellate Tribunal have also come across several cases wherein the parties sell the lands purchased by them when they come to know that there was no acquittal from losing the land for violating the provisions of the Act, so that the purchaser takes benefit of that and prolong the proceedings………………………………………………….. And in this context, the Karnataka Appellate Tribunal have desired that the Revenue Department issue a circular to its officers to ensure that the Village Accountants take entries in R.T.C. regarding initiation of enquiries by the Assistant Commissioner concerned for violation of the provisions of the Act so that it gives a warning to the purchasers……………………………………………………………… The Deputy Commissioners are instructed to fix responsibility on the village Accountants and Revenue Inspectors and take up Departmental Enquiries against them for lapses in this regard……………………………………………. During the proposed workshop of the village Accountants as directed under the Circular No: RD 100 LRA 98, dated: 06-08-1998 rigorous steps should be taken suo moto, for identification of violation cases and intitiate necessary action as per law.

women's right to property

2010-08-18T21:00:00.000-07:00

Sir i am an Advocate, i have filed suit for partition of female's share over the ancestral property in the year 2007. my client got married in the year 1999 and her father and brother entered in to a registered partition deed in the year 2000 and they partitioned between them to deprive my client's rights over ancestral property but my client is not a party to the partition.

my client has right as per the Karnataka amended act but the defendants taken contention that karnataka amendment act has been went out in view of 2005 central act. as per central act there should not be a partition before 2004.

sir i verified some judgments of karnataka i am unable to under stand that my client has right in view of Karnataka amended act but in view of 2005 my client looses her right. kindly guide me. thanking you sir.

ADVISE:- Karnataka Amendment Act, 1990, which disentitles a daughter married prior to coming into force of Karnataka Amendment Act, 1990 from being entitled to be a coparcener as per Section 6−A(d), The State Amendment Act of 1990, which was brought into force from 30.7.1994. This part became null and void ab-initio after coming into force of central act.

The Central Act of 2005 also mentions in proviso to Section 6(1) that nothing contained in the sub−section 6(1) shall affect or invalidate any disposition or alienation or including any partition or testamentary or disposition of property which have taken place before 20 day of December 2004.

SEE : ILR 2007 KAR 4790, OR 2008 (2) KarLJ 406 , Bench: JUSTICE V Jagannathan, Sugalabai vs Gundappa A. Maradi And Ors.

FURTHER NOTE TO READERS:- A HIGH COURT JUDGEMENT OF JUSTICE N.KUMAR AND JUSTICE A.N.VENUGOPALGOWDA SHALL BE REFERRED. IT CAN BE DOWNLOADED FROM http://www.lawyersclubindia.com/share_files/KARNATAKA-HIGH-COURT-JUDGEMENT-OVER-WOMENS-RIGHT-TO-PROPERTY-4892.asp

A QUERY ON KHARAB LAND- WASTE LAND- REVENUE EXEMPTED LAND

2010-08-18T20:50:00.000-07:00

Dear Sir ,

I came across your website .

I would like your opinion on a piece of land that my friend owns .

He had 10 guntas of land along with 10 guntas of karab 'a' land .
He later got the entire 20 guntas converted for residential purposes by paying
Rs 2 lakhs to the government for the conversion of 10 guntas of karab 'a' land
however in the conversion certificate , it has been mentioned that this karab 'a'
land will always belong to the government .
Later he approached the DC and again applied for correction of this point in the
conversion certificate , now in the new certiicate it mentions that by mistake they
have mentioned this point and it has now been amended that karab 'b' land will always
belong to the government .
He has also got the khatha certificate from BBMP for the entire property .

My question to you is since in his pani certificate his land has been mentioned as 'a' karab ,
will he be able to sell his property .

your kind opinion on this subject will be very much appreciated .

regards

The below quoted extract of Judgement of High court of karnataka will explain you on trhe subject and your 'a' kharab land belongs to the owner of property. Sadashivaiah And Ors. vs State Of Karnataka And Ors. ILR 2003 KAR 5088

Kharab land is so called because it is not cultivable and is classification made for purposes of revenue exemption, Kharab land is also capable of ownership and cannot be regarded as an adjunct to cultivable land which gets transferred along with the cultivable land. Acquisition of title to the kharab land is similar to acquisition of title to the cultivable land. The word "Phut Kharab" and 'pot' kharab mean and have reference to a land which is included in an assessed survey number but which is unflit for cultivation. Every pot kharab land does not belong to government. For the purpose of assessment, the uncultivable portion of the land or phut kharab portion of the land is excluded from consideration on the ground that it is cultivable. But it does not cease to belong to the owner of the survey number.

In volume I of the Mysore Revenue Manual, the word kharab is explained in this way. The expression 'phut kharab' is similar to the expression 'pot kharab'. That is so, is clear from the Mysore Revenue Survey Manual where at page 68 the words 'pot kharab' land is defined thus:
"(13). Pot kharab means a piece of pieces of land classed as unarable and included in a survey number".
The description has no relevance to ownership. The expression put kharab is explained in Gupte's book on the

Bombay Land Revenue Code in the following words at page 278"-
"By the term 'pot kharab' is meant 'barren or uncultivable land included in an assessed survey number' and includes 'any land comprised in a survey number. Which from any reason is held not to be likely to be brought under cultivation..........."

31. The words phut Kharab, therefore, mean and have reference to a land which is included in an assessed survey number but which is unfit for cultivation.

After coming into the force of the Karnataka Land Revenue Act 1964 the word phut Kharab has been defined under Rule 21(2) as under-
"during the process of classification, land included as unarable shall be treated as "Pot Kharab". Pot Kharab land may be classified as follows.

(a) That which is classified as unfit for agriculture at the time of survey including the farm buildings or threshing flours of the holder;

(b) That which is not assessed because, (i) it is reserved or assigned for public purpose; (ii) it is occupied by a road or recognised footpath or by a tank or stream used by persons other than the holders for irrigation, drinking or domestic purposes; (iii) used as burial ground or cremation ground; (iv) assigned for villager potteries."

32. Therefore, it becomes clear if the land falls within the category of 21(2)(a) it is not a government land, it belongs to the ownership of the petitioners. If it falls under 21(2)(b) then it belongs to the government and the petitioners cannot have a claim over the said land.

A DISPUTE REGARDING RTC ENTRY AND RIGHT TO INFORMANTION CLARIFICATION

2010-08-18T20:47:00.000-07:00

Dear Sir,

Kindly advise me abt land case,

The court case which is in the court since 1976-77.
it is tribunal case area karwar, Uttar Kannada district, Karnataka state.
whenever we are asking tribunal office says evry time that there is no comittee selected so case could,t appear for hearing.

we came to know that karnataka govt already issued notice for tribunal court. but even than action are not taken.

we want to know that how and where which department we can ask abt the same. or shall we ask in the "Right of information Act" to whom which dept will u please help us.

from 1976 to 1990 two judjement had come from high court and case has been disolved even then opponent wrong way taken their name on land records. and all tax receipts we had from 1966 upto 1977 and many more years.
we all are ladies don't know proper kannada, staying with husband in Mumbai and old and illlitrate mother staying at village. we are asking our advocate to do some under Right of information act. he says it,s not applicable to this type of case,which falls under land tribunal act.
can u tell us what to do.?
Thanking you

RIGHT TO INFORMATION ACT APPLICABLE TO EVERY GOVT OFFICE AND TRIBUNAL YOUR ADVOCATE HAS WRONGLY INTERPRETED IT.

YOU FILE RTI APLICATION BEFORE DEPUTY COMMISSIONER SEEKING INFORMATION ABOUT CONSTITUTION OF TRIBUNAL

YOU FILE APPLICATION WITH ASSISTANT COMMISSIONER OFFICE SEEKING INFORMATION ABOUT YOUR CASE BY ASKING FOLLOWING DOCUMENTS BY QUOTING CASE NUMBER

1. ENTIRE ORDER SHEET OF THE CASE.

2.ENTIRE DOCUMENTS FILED BY BOTH THE PARTIES.

SEE TO THE DOCUMENTS WHETHER ENQUIRY IS CONDUCTED OR NOT IN THE CASE.

IF YOU ARE HAVING PHANI ENTRY OF YOUR ANCESTERS NAME IN TILLERS COLUMN NUMBER 12 THEN DO NOT WORRY ABOUT THE SAME, THE LAND WILL VEST WITH GOVERNMENT.

WHAT STEP YOU HAVE TO TAKE REGARDING PHANI ENTRIES

FILE AN APPLICATION BEFORE TRIBUNAL SEEKING STAY OF PHANI ENTRY BY SHOWING THAT THE ENTRY MAY BE MIS-UTILISED TO SELL AND SUCH STAY OF IT SHALL BE ENTERED IN RTC. PLEASE SEE APPLICATION FORMAT AND CHANGE THE FORMAT TO SUIT YOUR CONVENIENCE.

CASE LAW FOR YOUR CASE AND DOUBTS

Thunga Bai And Ors. vs Vishalakshi Heggadthi And Anr. ILR 1975 KAR 739, 1974 (2) KarLJ 484

The Karnataka Land Reforms Act, 1961, (hereinafter called the Act) came into force on 2-10-1965. The object of the said Act, inter alia, is to terminate the relationship of landlord and tenant and to confer ownership rights on the tenants. Landlords are prohibited from evicting their tenants. Section 14 of the Act permitted resumption subject to the terms and conditions laid down therein. Section 14 has now been deleted by the Karnataka Amendment Act No. 1 of 1974. Section 25 provides for surrender of lands held by a tenant. The said section, before it was amended by Karnataka Amendment Act No. 1 of 1974 read thus:
"25 Surrender of land by tenant:--
(1) No tenant shall surrender any land held by him as such, and no landlord shall enter upon the land surrendered by the tenant, without the previous permission in writing of the court.
(2) Permission under Sub-section (1) shall be granted if, after making such inquiry as may be prescribed, the court is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which landlord could have resumed from his tenant under Section 14; in other cases, the permission shall be refused....."
By Section 25 a bar was imposed against surrender of any land held by a tenant without the previous permission in writing of the 'court'. The Court can grant permission after making enquiry if it is satisfied that the proposed surrender is bona fide and the land surrendered does not exceed the extent of land which the landlord could have resumed from his tenant under Section 14. The section further barred the landlords from entering upon the land surrendered by their tenants without the previous permission in writing obtained from the Court. Thus there is a prohibition against surrender of any land by a tenant and a further prohibition against the landlord from entering upon the land surrendered by the tenant, without the previous permission in writing of the Court.

In the case of Nagappa Devanna v. Venkataramana Thimmanna and Anr. 1978(1) Kar. L.J. 70 (DB), wherein this Court held that: What is relevant for the purpose of the Act and the determination by the Tribunal is whether the lands in respect of which proceedings are taken under Chapter III were tenanted lands being cultivated personally by the alleged tenants immediately prior to 1-3-1974. If there was any dispossession after 1-3-1974 by the landlord or by the main tenant or a sub-tenant, it is wholly immaterial and will not affect the right of the tenant personally cultivating the land immediately prior to 1-3-1974.

WHEN MY PROPERTY IS ATTACHED FOR DEBTS OF MY VENDOR

2010-08-18T20:33:00.000-07:00

respected sir,

I am Raju from Andhra Pradesh.I purchased a land on the basis of sale deed.The sale deed did not registered.Sale deed wrote on a 10Rs(ten rupees) stamp paper.after 6 months of purchasing the land vendor was died.than i appeal in the court to register the land by vendors wife and his daughters.court has given a decree to register the land.than vendors wife and daughters registered the land to me.But vendor has to give money to another person Murthy.Murthy attached on this unregistered sale deed.Murthy attachment is first.After murthy attachment i gone to the court for registering my unregistered land. Now i have registered documents. Is any right to Murthy to attach on my property.shall i go for any defamation on murthy.

Sir i am requesting you to tell me hot save my land from that attachment.Is there any example cases like this type of cases.This is in the final stage.send your sugestion as early as possible.please sir.

CONSULT YOUR LOCAL ADVOCATE WITH YOUR DOCUMENTS AND THIS INFORMATION HE WILL GUIDE YOU PROPERLY AFTER VERIFYING YOUR DOCUMENTS

Garnishee Proceedings
Garnishment is a judicial proceeding in which a creditor asks the court to order a third party who is indebted to the debtor to turn over to the creditor any of the debtor’s property held by that third party .

The word ‘Garnish’ is derived from an old French word ‘garnir’ which means to warn or to prepare . It is to serve an heir with notice i.e. to warn of certain debts that must be paid before the person is entitled to receive property as an heir.

Garnishee means a judgment-debtor’s debtor . He is a person or institution that is indebted to another whose property has been subject to garnishment. He is a person who is liable to pay a debt to a judgment debtor or to deliver any movable property to him. A third person or party in whose hands money is attached by process of court; so called, because he had garnishment or warning, not to pay the money to the defendant, but to appear and answer to the plaintiff creditor’s suit .

Garnisher is a judgment-creditor (decree-holder) who initiates a garnishment action to reach the debtor’s property that is thought to be held or owed by a third party.

A garnishee order is an order passed by an executing court directing or ordering a garnishee not to pay money to judgment debtor since the latter is indebted to the Garnisher (decree-holder) . It is an order of court to attach money or goods belonging to the judgment debtor in the hands of a third person. It is a remedy available to any judgment creditor; this order may be made by the court to holders of funds (3rd party) that no payments are to make until the court authorizes them. The third party is known as garnishee and the court order is known as garnishee order. The purpose of the order is to protect the interest of the creditors. An order served upon a garnishee requiring him not to pay or deliver the money or property of the debtor (defendant) to him and / or requiring him to appear in the court and answer to the suit of the plaintiff to the extent of the liability to the defendant

Order 21 Rule 46 A to 46 I have been newly inserted in the Code of Civil Procedure by the Amendment Act, 1976. They lay down the procedure in garnishee cases. Prior to amendment, opinion expressed by various Courts was that the Court had no power to compel a garnishee to pay debt in Court and in case a garnishee on appearance denied the debt, it was duty of the Court to enquire that if debt was due and when garnishee was held liable to pay, except on certain contingencies, it was not permissible to call upon him to pay the amount into Court . The object of newly inserted Rule 46A is to render the debt due by the debtor of the judgment debtor available in execution to the decree holder and not to drive him to a suit. The primary object of a garnishee order is to make the debt due by the debtor of the judgment debtor available to the decree holder in execution without driving him to the suit. The court may, in the case of debt (other than a debt secured by a mortgage or charge) which has been attached under Rule 46, upon the application of the attaching creditor, issue a notice to garnishee liable to pay such debt, calling upon him either to pay into court the debt due from him to the judgment debtor or so much thereof as may be sufficient to satisfy the decree and costs of execution, or to appear and show cause why he should not do so.

In Kazim Jawaz Jung v. Mir Mohamad Ali Jaferi and Anr, AIR 1972 AP 70 the Appellant is the debtor of judgment debtor. He was directed to deposit in Court amount payable to judgment debtor as required by decree holder. The appellant disputed his liability with regard to amount due to judgment debtor. He contended that the final decree with regard to liability amount has not been passed yet and therefore the impugned amount becomes payable only when judgment debtor allots land to appellant. Thus, the appellant is not liable to pay any amount before allotment of land by judgment debtor. The Hon’ble Andhra Pradesh High Court held that where the judgment debtor himself is not entitled to recover amount from appellant then decree holder has no right to recover amount from appellant.

In Mackinnon Mackenzie and Company Pvt. Ltd. v. Anil Kumar Sen and Anr, AIR 1975 Cal 150 the question which came up for consideration is that if the garnishee denies that any sum of money is due to the judgment-debtor whether it is open to the court to hold the garnishee liable for the claim made by the judgment-debtor without raising and trying an issue on the question of such liability. The Hon’ble Calcutta High Court held that the Judge has a discretion under the Rule to, make an order summarily or to settle an issue and try the same on evidence. No doubt the order contemplated by the Rule is a discretionary one, but such discretion must be judicially exercised. Where a Judge finds that a claim is bona fide disputed and the dispute is not frivolous, he should not rush to a conclusion on the affidavit evidence having regard to the requirement of the Rule. A garnishee order which enables a judgment-creditor to obtain satisfaction of his claim in a summary proceeding is a matter of procedure, similar in scope as in the case of a judgment on admission under Order 12 Rule 6 of the Civil Procedure Code or the summary procedure in suits to recover debts or liquidated demands as prescribed in Chapter XIII-A of the Original Side Rules. This procedure can be availed of by a decree-holder where either the debt is not disputed or the dispute appears to the Court to be frivolous and without any substance. It is of no avail in a case where there is a substantial bona fide dispute with regard to the debts sought to be attached.

In Executive Engineer, KSE Board v. J H Sharma, AIR 1988 Ker 288 the garnishee appeared in court in response to the letter and filed a counter-affidavit, raising certain objections. It was held that since he had raised his contentions in counter-affidavit, the same could be treated as objections contemplated under O 21 R 46 C even in the absence of formal notice under O 21 R 46 C to order that the disputed question be tried as an issue and to decide the issue. In the impugned orders, the court below did not consider the merits of the dispute raised by the appellant.
In Surinder Nath v Union of India, AIR 1988 SC 1777 The garnishee order was for a fictitious sum of Rs. 8, 56,377.55 which was not mentioned in the show cause notice issued under Section 226(3) of the Income Tax Act, 1961. The Hon’ble Supreme Court held that there can be no doubt that when an order is made for the payment of a fictitious sum without giving any opportunity to a person, against whom the order is made, to show cause against the passing of such an order for the said sum, the order is a nullity. The garnishee order that was passed was a nullity and any sale held pursuant to such an order is also a nullity irrespective of its confirmation. In view of the conduct of the firm and/or its said partner, they should share along with the Revenue a part of the compensation that may be allowed to the auction-purchaser. The Revenue shall see that the said amount is refunded back to the auction-purchaser. Further, the auction-purchaser will be entitled to get interest on the said amount at rate of fifteen per cent for a period of two years and a half, during which the amount remained blocked, by way of compensation.

In Syndicate Bank v. Vijay Kumar, (1992) 2 SCC 330
while furnishing bank guarantee in favor of high Court customer furnished two fixed deposit receipts duly discharged to the bank and authorized the bank the custody of the receipts and renewals thereof. The Hon’ble Supreme Court held that it becomes a general lien. Bank can set off liability of the party against the receipts. If the fixed deposits are attached to bank garnishee has to go to the court. The balance after adjustments of bank’s claim shall be available to satisfy the decree.

In K Jayaraman & etc. v. TS Ravi & Ors, AIR 2001 Mad 422 garnishee obtained possession from the lessee giving undertaking to pay agreed compensation, in the suit filed by the creditor; direction was given to the garnishee to deposit the amount in the court. In the instant case, TIDCO has acquired the lands belonging to the salt department of government of India and has agreed to pay compensation due to the salt department and its lessees. Transfer of entire land has also been made by the salt department to TIDCO in pursuance of the order dated 6-1-1999 by the government of India. Conditions under which transfer has been affected in favor of TIDCO by the government of India are to the effect that TIDCO shall pay compensation agreed by it to the lessees who have been made to prematurely surrender their leasehold rights. Further it was a condition that the salt commissioner shall not be dragged to any proceedings in court in respect of the amount payable to the lessees and it is responsibility of the TIDCO to meet all Claims.

In Global trust bank Ltd. v. Fargo Frieght ltd. & ors, AIR 2002 Del. 13 the Hon’ble court held that it applies not only to a debt other than a debt secured by a mortgage or a charge, which has been attached under Rule 46 of Order 21 but also to a debt under a negotiable instrument. The foundation of a garnishee proceeding is an attachment under rule 46(1) of Order 21 of the Code. At the most it can be said that orders, which were passed, are akin to attachment proceedings under which by operation of various interim orders the appellant had been directed to keep the letter of credit alive. But the question in this instant case is that whether mere attachment would entitle and enable the Court to otherwise make a direction for the payment of the amount, without adjudicating upon the case set up by appellant that for various reasons it is not liable to pay the amount. It has also been noticed above that the appellant is seriously disputing its liability under the letter of credit to pay. Rule 46B of Order 21 of the Code says that when the garnishee does not forthwith pay into Court the amount due form him and fails to appear and show cause in answer to the notice, the Court may order the garnishee to comply with the terms of such notice. Rule 46C of Order 21 lays down the procedure when the garnishee disputes indebtedness to the judgment debtor or alleges that the debt is not an attachable debt. The Court must order an issue to be raised and tried. Even if there is a reasonable doubt the matter should be tried. The garnishee is required to make out a prima facie case before an issue as to his liability may be ordered to be raised; In other words he would disclose facts from which a reasonable inference may be drawn that there is a valid dispute as to his alleged liability.

In Greater Cochin development Authority, Kadavanthara v, harrisons Malayam Ltd. & Anr , AIR 2002 Ker. 119
A Notice was issued to call upon the defendant to show cause against the prayer of the plaintiff in his application. However, notice was not issued in form No 5. The Kerala High Court held that since the purpose of form 5 was achieved in substance, the order will not be liable to be set aside on that ground. A comparison of form No 5 was made with the prohibitory order which actually served on the garnishee. It revealed certain differences such as in the prescribed form the direction was “to the above named garnishee and to affix at the court house” the mention of the direction to the defendant to furnish security was not available in the impugned order and direction in the impugned order was to the garnishee prohibiting or restraining him from making the payment of specified debt or any part thereof to any person whomsoever or otherwise than the court and form no 5 envisages direction to the Amin to call upon the defendant to furnish security. However, in the absence of any particular form prescribed by the law, whereby the amin, to whom the warrant in form No 5 is addressed, should call upon the defendant to furnish security, the court resorted to issuance of separate notice calling upon the defendant to show cause against the prayer in the application which mentions of security as well, there was no illegality. By issuance of separate notice the court achieved the purpose of the former portion of the form No 5 in substance.

In Bombay Stock Exchange v. Jaya I. Shah and Anr, AIR 2004 SC 55 the Hon’ble Court held that the assets belonging to the defaulted member cannot be attached in Garnishee proceedings since it is not a debt due by the Exchange to the defaulted member.

In State of Bikaner and Jaipur v. Additional Dist. & Sessions Judge, Jodhpur , AIR 2005 Raj 246 the Hon’ble Court held that it is clear from Sub-rule (1) of Rule 46 of Order 21 itself that an attachment can be issued against the debt, share and other movable property not in the possession of the judgment-debtor. The court may pass appropriate order restraining the person holding the debt or share in the capital of any corporation to not to pay or disburse the amount. The Rule 46B also provides that what type of order can be passed against the garnishee. It only says that the executing court can pass the order against the garnishee to pay into Court, "the amount due from him to the judgment-debtor". The Rule 46D provides the what procedure should be adopted when it is claimed that the debts belongs to some third person, or that any third person had a lien or charge on, or other interest in, such debt, the Court may order such third person to appear and state the nature and particulars of his claim, if any, to such debt and prove the same. All the provisions referred above clearly reveals that the executing court has been given power to recover any of the amounts of the judgment-debtor, which is in the hands of other. The court has no power to issue order or direction to anybody, may it be usual financier of the judgment-debtor, who is not holding any money of the judgment-debtor to pay to satisfy the debt or decretal amount for the judgment-debtor, may it under assumption the garnishee is able and can recover the amount from the judgment-debtor or the judgment-debtor will pay to the garnishee. The court further held that the executing court appears to have not looked into the relevant provision of law to find out for what type of order can be issued against the garnishee. The court held that the order of the executing court violates the Rule 46B of Order 21 CPC, which authorizes the executing court to direct the garnishee to pay the "amount due from him (garnishee) to the judgment-debtor".

In Uttar Gujarat S.R.V. Sangh Ltd. V. Mehsana District Central Co-op. Bank Ltd. and Ors , (2008) 11 SCC 492 Ex-parte garnishee orders were issued against the appellant by the Ahmedabad Board of Nominees. Pursuant to the order of restraint passed by the Board of Nominees, Ahmedabad Division, the present appellant was restrained from giving or making payment to defendant No. 1. Though appellant was a party in the Special Civil Application, the matter was disposed of without hearing the appellant. In the Review Application the learned Single Judge of the High Court proceeded on entirely erroneous premises. The ultimate result is that the appellant, without getting an opportunity of being heard and/or presenting its case has been saddled with the liability. Therefore, the Hon’ble Supreme Court set aside the impugned order and remits the matter to the High Court for fresh disposal in accordance with law.

In Food Corporation of India v. Sukh Deo Prasad , AIR 2009 SC 2330 the Hon’ble Supreme Court held that the Garnishee proceedings are governed by Rules 46 and 46A to 46F of order 21 of the Code. Sub-para (1) of Rule 46 A provides that in the case of a debt (other than a debt secured by a mortgage or a charge) which has been attached under Rule 46, upon the application of the attaching creditor, the court may issue notice to the garnishee liable to pay such debt, calling upon him either to pay into court the debt due from debtor or to appear and show cause why he should not do so. Rule 46B provides that where the garnishee does not forthwith pay into court the amount due from him to the debtor and does not appear and show cause in answer to the notice, the court may order garnishee to comply with the terms of such notice, and on such order, execution may issue as though such order were a decree against him. Rule 46C provides that where the garnishee disputes liability, the court may order that any issue or question necessary for the determination of liability shall be tried as if it were an issue in a suit and upon the determination of such issue shall make such order or orders as it deems fit. It would thus be seen that the amount due by a garnishee, if disputed has to be determined as if it was an issue in the suit and the court can appropriate order determine the extent of liability of the garnishee. In this case, there was no adjudication of the amount payable by FCI. Whatever amount that was due in pursuance of the order dated 27.5.1996 in regard to one go down taken on lease in June 1994, was deposited by FCI and the plaintiff bank at whose instance the order was made has no complaint or grievance.

We are Hindu brothers already partitioned. Is it possible to re-open partition after 3 years

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The following observations made by Supreme court in RATNAM CHETTIAR case AIR 1976 SC 1 Gives you guideliness regarding the topic

(1) A partition effected between the members of an Hindu Undivided Family by their
own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors.

(3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on
the party supporting the partition.

(4) Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen
the partition that is unjust and unfair.

Whether for every acts of public servant even if it is illegal sanction to prosecute necessary?

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SANCTION IS NOT NECESSARY IN ALL CASES. THE BELOW QUOTED CASE LAWS WILL GUIDE YOU FURTHER

STATE OF BIHAR ETC. ETC. Vs. RESPONDENT: P.P. SHARMA, IAS AND ANR. : REPORTED IN AIR 1991 SC 1260

The public servant can only be said to act or purported to act in the discharge of his official duty if his act or omission is such as to lie within the scope of his official duty. It is not every offence committed by a public servant that requires sanction for prosecution, nor even every act by him while he actually engaged under colour of his official duty that receives protection from prosecution.[46B] The offending act must be integrally connected with the discharge of duty and should not be fanciful or pretended.

R. Balakrishna Pillai v. State ofKerala, REPORTED IN AIR 1996 SC 901 : (1996) 1 SCC 478 (483).

It is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. It is the quality of the act that is important

Hardev Singh v. State of Punjab, REPORTED IN 1995 Cr LJ 2964 (P&H).

Where accused public servant indulges in firing, the act even remotely cannot be said to be connected with official duty, sanction under S. 197 is not necessary.

Bhagwan Prasad Srivastava v. N.P. Mishra, REPORTED IN AIR 1970 SC 1661 : 1970 Cr LJ 1401, 1403, 1404.

It is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. A line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties.

The case was not covered by s, 197 Cr. P.C.. The object and purpose underlying section 197 Cr. P.C. is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged- to have been committed by them while acting or- purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty’fearlessly and undeterred by apprehension of their ,possible prosecution at the instance. of private parties to whom annoyance ,or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction ’for the- prosecution as a condition precedent to the cognizance of the cases against them, by the courts. It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty, and never can be-to commit an offence. It is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. The question whether a particular act is done ’by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. [320 D--H; 321 G] In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant-respondent forcibly turned out of the operation theatre by the Cook. There was nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged, it. [321 G-H]

Pukhraj v. State of Rajasthan, REPORTED IN AIR 1973 SC 2591 : 1973 Cr LJ 1795, 1796; N.K. Ogle v. Sanwaldas, REPORTED IN AIR 1999 SC 1437 : 1999 Cr LJ 2105; Mohd. Hazi Raja v. State ofBihar, REPORTED IN AIR 1998 SC 1945 : 1998 Cr LJ 2826.

What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant.

Mohd. Pasha, (1956) Hyd 191; Baij Nath, REPORTED IN AIR 1966 SC 220; MA". Ogle v. Sanwaldas, REPORTED IN AIR 1999 SC 1437: 1999 Cr LJ2105.

The sanction is necessary if acts complained of a public servant are so integrally connected with the duties attached to the office as to be inseparable from them. But if there is no necessary connection between them and the performance of the duties, then no sanction is necessary.

P. Arulswami v. State of Madras, REPORTED IN AIR 1967 SC 776: 1967 Cr LJ 665.

Sanction is not necessary to prosecute a public servant, if the act of which he is complained, is entirely unconnected with his official duty.

Bakhshish Singh v. state of Punjab, REPORTED IN AIR 1967 SC 752 : 1967 Cr LJ 656. 661.

Where the act could not possibly be held to have been done in the discharge of official duties as a public servant no sanction is necessary.

K.K. Anand v/s Joginder Singh, 1990 REPORTED IN CrLJ 1007 (HP).

A public servant who does not purport to act in discharge of his official duty but merely uses his official position to do an illegal act cannot claim the benefit of this section. To be protected under this section, the act constituting the offence should be so connected with the official duty or any act which is inseparable from such duty.

K. Venkataramana Reddy v. A. Radha, REPORTED IN 1991 Cr LJ 498, 505 (AP). .,

The question whether the acts of beating, abusing and dragging were warranted in the discharge of the police officials duties or not and whether they have any nexus with their official duties can be decided only after the evidence is let in and not earlier to that.

Bakhshish Singh Brar v. Gurmej Kaur, REPORTED IN AIR 1988 SC 257 : 1988 Cr LJ 419 (SC).

The trial Court may decide the necessity of sanction after gathering materials and evidence.

Supreme Court in Harihar Prasad v. State of Bihar, REPORTED IN (1972) 3 SCC 89 : (1972 Cri LJ 707), in which the Supreme Court held that it was no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and therefore want of sanction under Section 197, Cr. P.C. was not a bar for prosecution of a public servant for the offence of criminal conspiracy under Section 120B.

Supreme Court in State of Bihar v. P.P. Sharma, REPORTED IN AIR 1991 SC 1260: (1991 Cri LJ 1438), and Shambhoo Nath Misra v. State of U.P., REPORTED IN (1997) 5 SCC 326 : (1997 Cri LJ 2491), in which it was held that no sanction was required under Section 197 , Cr. P.C. for prosecuting a public servant for offences such as misappropriation, falsification of accounts, criminal conspiracy, etc. as they were not integrally connected with the official duties of the public servant.

Can the gift be made of a property which is not in existence, i.e. of future property?

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No. The subject matter of a gift must be a certain, existing, moveable or immoveable property. It could be anything such as, goods, any right, title or interest in any immovable property, which exists, or even an actionable claim. It must be transferable within the meaning of Sec.6 of the Transfer of Property Act. A gift of the right to management is valid. But a gift of the future revenue of the village is invalid. Release of a debt is not a gift; because it does not involve any transfer of property but merely a renunciation of a right of action.

The agreement to lease should contain the following particulars

2008-08-10T11:03:00.000-07:00

• Parties to the deed. ("A lease right can not be created by a person who has
no title in the property. [Rentala vs. Chimmapudi, AIR 1967 SC1793]
• Details of the property to be demised
• Duration of the lease
• Price/premium, and/or lease rent/any other thing of value/share of crops etc.
• Periodicity/specific occasions when the payment would be made/services that
will be rendered.
• Date of commencement.
• Date of determination.