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BEING LAWYERS, New Delhi, Delhi (2026)

05/07/2023

A single judge bench of Justice M Nagaprasanna held,

“ Parties to the lis cannot always be said to be conversant with terms, to be knowing the nuances of law of evidence, both oral or documentary, as to what is to be produced before the Tribunal. It is, therefore, a legal aid is necessary to such senior citizens. Legal aid, is trite, a facet of the constitutional right guaranteed under Article 21 of the Constitution of India and such legal aid or legal assistance cannot be stifled or crippled only to tendering advice.”
The court made the declaration while allowing a petition filed by one K. Srinivas Ganiga (82), challenging an order passed by the Deputy Commissioner, denying representation of the petitioner by an advocate in the appeal proceedings and to declare the Section as unconstitutional.

The petitioner contended that the Act was envisaged for protection of rights of senior citizens and towards the said right the petitioner ought to have been permitted the assistance of a legal practitioner before the Assistant Commissioner itself as the petitioner was 82 years old at the time he approached the Assistant Commissioner.

The state government and Union Government opposed the plea saying the statute clearly prohibits engagement of any legal practitioner before both the fora.

The bench on going through the order passed by the Assistant Commissioner which had partly allowed the application filed by the petitioner and directed his sons not to torture their parents said, “The petitioner is an octogenarian and is seeking protection under the Act. Looking at the age of the petitioner, he could not defend himself in contra-distinction to the vehement defense put up by the children. This has undoubtedly resulted in a fractured order passed by the Assistant Commissioner as there is only a direction that the petitioner and his wife should not be disturbed from the house but there is no order to maintain the petitioner.”

It expressed that in cases where the parties are more than 60, 70 or 80 years of age, they would not be in a position to defend their own case and sometimes would become tongue tied on the vehement opposition put up by the children. "Apart from the legality of the issue whether the Act would place an embargo or otherwise, the aforesaid facts of the case at hand are grave enough to permit assistance by a legal practitioner,” Court said.

It added that if the object of the Act was to render protection to the senior citizen, the protection should not be illusive or collusive.

Court held that Section 30 of Advocates Act permits Advocates to appear before any fora. It further observed,

“ Section 17 of the Act though begins with a non-obstante clause “notwithstanding anything contained in any law” it can be only with regard to the law that was in existence on the date of promulgation of the Act i.e., on 01-01-2008. Section 30 of the Advocates Act comes into force, as observed hereinabove, in the year 2011 i.e., on 15.06.2011. Therefore, the right of an Advocate to practice before the Tribunal which is derived under Section 30 cannot be seen to be controlled by an enactment earlier to it, i.e., in terms of Section 17 of the Act.”
It also cited Delhi High Court's decision in Pawan Reley v. Union of India which took a similar view.

Court then noted Section 8(2) of the Act mandates that the Tribunal shall have all the powers of the Civil Court for the purpose of taking evidence on oath and of enforcing the attendance of witnesses and compelling the discovery and production of documents. Similarly, under Section 16 of the Act the Appellate Authority has vast powers to adjudicate and decide upon the appeal after both the parties are heard in person or through duly authorised representatives.

“In the teeth of the enactment, its purpose and the right of the Advocate under Section 30 of the Act, legal assistance by an advocate cannot but be given to the applicants before the Assistant Commissioner, as well as the Deputy Commissioner,” Court held.

It rejected the contention of the government that entry of an Advocate would delay the proceedings or jeopardise the object behind the Act. It said “The presence of an advocate would neither delay the proceedings nor jeopardise the object of the enactment. In the considered view of this Court, it would streamline the proceedings to be in accordance with law.”

Accordingly it allowed the petition and quashed the Endorsement issued by the Deputy Commissioner. It remitted the matter back to the Deputy Commissioner and permitted the petitioner to be represented by an advocate.

The bench lastly directed the Registry to forward a copy of the order to the Chief Secretary to Karnataka Government for taking appropriate steps to notify the Assistant Commissioners and the Deputy Commissioners under the Act to permit representation of Advocates to the applicants, petitioners and appellants in the proceedings before them.

05/07/2023

The Supreme Court held that the condition of right to repurchase in sale deed will not be personal to the vendor unless the terms in the documents specifically state so.

Such a right can always be assigned and the contract containing such condition shall be enforceable, the bench of Justice Abhay S. Oka and Rajesh Bindal observed.

In this case, the plaintiff filed a suit for specific performance. The Trial Court as well as the first Appellate Court dismissed the suit whereas the High Court had reversed the findings and decreed the same. The issue raised in the appeal before the Supreme Court was whether the vendor can assign the right contained in a sale deed to get the property registered back or the right being personal cannot be assigned?

The bench referred to precedents in which it was held that the right of repurchase is assignable or transferable and cannot be treated as personal to the contracting parties. The court observed:

"The condition of right to repurchase in sale deed will not be personal to the vendor unless the terms in the documents specifically state so. Such a right can always be assigned and the contract containing such condition shall be enforceable. The only exception being that such a right should not be personal in nature. The assignment of obligations in a document is not possible without the consent of the other party. No implied prohibition of transfer or assignment can be inferred in a document. The benefit of contract is assignable in cases where it does not make any difference to the person on whom the obligations lies, to which of two persons he is to discharge."
The court noted that, in the instant case, there is no term in the conditional Sale Deed which debars its assignment to any other person. Thus the bench dismissed the appeal upholding the High Court judgment.

05/07/2023

The bench of Justice P. Naveen Rao , Justice B. Vijaysen Reddy and Justice Nagesh Bheemapaka in the judgment dated June 27 said only if a partition has taken place before the adoption and property is allotted to the adopted person, he or share can carry that property to the adoptive family.

"Only if a partition has taken place before the adoption and property is allotted to his share or self acquired, obtained by will, inherited from his natural father or other ancestor or collateral which is not coparcenary property held along with other coparceners and property held by him as sole surviving coparcener, he carries that property with him to the adoptive family with corresponding obligations," said the court.

Ruling

After considering various judgements passed by the Supreme Court, and referring to texts of exponents of Hindu Law, the full bench said that Section 12 of the Act envisages severance from birth parents and creating new rights with adoptive parents.

The meaning of the word “vested” was also looked into, and the bench explained that the word means anything which means already fixed, settled and which gives absolute right of ownership and then went on to say although in Mitakshara Law coparceners acquire right at birth, the right is not definite and the share of a coparcener becomes absolute only when partition opens and held:

“In Hindu Mitakshara law a coparcener acquires right in a joint farely property as soon as he was born. But, such right is unspecified. A coparcener acquires interest in the ancestral property by birth, but has no definite share in the coparcenary property. A coparcener does not have exclusive rights on any specific property of the family. All the coparceners enjoy the ancestral property jointly. The right to interest changes from time to time depending on additions or deletions of coparceners. It acquires a concrete shape only when partition opens," the court said.

The court added that the property allotted to a coparcener becomes specified only on partition and the coparcener acquires a specific extent of property and becomes absolute owner to that property in his right.

"The word 'vested' employed in Section 12 proviso (b) indicates such a contingency. In other words, if ancestral properties are partitioned and a share is allotted to a child, that property vests in him. If he/she was adopted after such vesting, he/she carries with him/her said property, though he/she severs his/her relationship with the family in which he/she was born,” it noted further.

The court said on careful analysis of opinion expressed in Mayne’s Hindu Law and Mulla on principles of Hindu law and in other scriptures, it is beyond pale of doubt that on adoption by another family, the adoptee becomes coparcener of adoptive family and ceases to have any connection with family of his birth.

"He/she transplants into the adoptive family. He/she is not required to observe pollution on birth or death of any member in the family of his/her birth. He/she ceases to perform funeral ceremonies and losses all rights of inheritance as completely as if he/she had never born. The illustrations given in Mulla’s principles of Hindu Law, eighteenth edition makes the issue very simple and clear," it added.

The court further said that Section 12 makes it clear that on adoption into adoptive family, from the date of adoption the child severs all ties with the family of birth and becomes coparcener of adoptive family. "A plain reading of proviso (b), breaking away from narrow interpretations given by some High Courts makes it crystal clear that what is saved is only the property already vested in the child in the family of birth in the above manner before adopted by adoptive family," it added, while answering the reference.

04/07/2023

The Supreme Court has held that Section 180 of Indian Penal Code is not attracted if a person refuses to sign the statement made to a police officer in course of an investigation.

"In terms of section 162, Cr. PC, no statement made by a person to a police officer in the course of any investigation under Chapter XII of the Cr. PC, which is reduced to writing, is required to be signed by the person making the statement and that section 180 of the IPC gets attracted only if a statement is refused to be signed which a public servant is legally competent to require the person making the statement to sign.", the bench of Justices S. Ravindra Bhat and Dipankar Datta observed.

"We are aghast to note that an officer of the rank of DSP could be so irresponsible while swearing an affidavit which is proposed to be filed before this Court. An officer, who is a DSP, ought to know that in terms of section 162, Cr. PC, no statement made by a person to a police officer in the course of any investigation under Chapter XII of the Cr. PC, which is reduced to writing, is required to be signed by the person making the statement and that section 180 of the IPC gets attracted only if a statement is refused to be signed which a public servant is legally competent to require the person making the statement to sign. That is not the case here. Since the deponent has not been heard by us, we do not propose to take the issue further but warn him to be cautious in future"

"This is not for the purpose of initiating any action adverse to the interest of the deponent of the reply affidavit but for the purpose of ensuring that police officers at all levels are made aware of the legal provisions and the impact that ignorance of legal provisions could have on pending criminal proceedings adversely affecting the rights of accused, so that there is no recurrence of similar such incident.", the bench added.

"It is no part of the business of any of the courts to ascertain what the outcome of the trial could be, ~ conviction or acquittal of the accused. The small window that the law, through judicial precedents, provides is to look at the allegations in the FIR and the materials collected in course of investigation, without a rebuttal thereof by the accused, and to form an opinion upon consideration thereof that an offence is indeed not disclosed from it. Unless the prosecution is shown to be illegitimate so as to result in an abuse of the process of law, it would not be proper to scuttle it. "

04/07/2023

A single judge bench of Justice M Nagaprasanna allowed the petition filed by one Francis Xavier Crasto and directed the concerned court to release his passport.

The petitioner was embroiled in a crime and pursuant to a FIR, his passport was seized. The Sessions Court in terms of the order dated April 12, 2023 acquitted the petitioner but did not pass any order under Section 452 CrPC (Order for disposal of property at conclusion of trial) with regard to the seized passport. Following which the petitioner filed an application under Section 452 of CrPC for return of the passport.

The trial court rejected the application on the ground that the appeal period for preferring an appeal against the order of acquittal is pending.

On perusing the reason mentioned in the order passed by the trial court the court said “The reason so rendered on the face of it is erroneous, as the passport that are seized cannot be withheld after the acquittal of the petitioner merely because an appeal would be filed against the said order.”

It therefore allowed the petition and directed the concerned Court to release the passport in favour of the petitioner.

04/07/2023

A single judge bench of Justice Rajendra Badamikar observed that the petitioner-wife was working prior to her marriage and there is no explanation as to why she is incapable of working now. It added,

“ She is not supposed to sit idle and seek entire maintenance from her husband and she is also legally bound to make some efforts to meet her livelihood and she can seek only supportive maintenance from her husband.”
The woman and the child challenged the order of the Sessions court reducing the maintenance granted to the woman from Rs.10,000 to Rs.5,000 and compensation from Rs.3,00,000 to Rs.2,00,000.

The petitioners contended that the compensation awarded is meagre one and the Appellate Court without any proper reasonings has reduced the maintenance.

The High Court noted that the Appellate Court has confirmed the order granting maintenance to the child.

It also noted that the petitioner-wife was unwilling to live with her mother-in-law and unmarried sister-in-law. The husband, who is running provision stores, had the responsibility of taking care of his mother and unmarried sister. Accordingly it observed,

“Looking to the above facts and circumstances and considering the conduct of petitioner No.1, the order of maintenance awarded by the First Appellate Court by reducing from Rs.10,000 to Rs.5,000 does not call for any interference. As regards compensation amount, there is no material evidence as to on what basis the compensation was quantified. However, it was not challenged and the question of interfering with the said order does not arise at all.”

It thus dismissed the petition.

03/07/2023

Brief Facts:

The Complainants secured a housing loan of Rs. 50 Lakhs from the Bank in 2018 to take advantage of the benefits offered by the Pradhan Mantri Awas Yojana. Subsequently, in August 2020, they received an SMS stating that an Application ID had been generated for the Pradhan Mantri Awas Yojana - PMAY (U) – Class to track the status of the application. However, despite a long wait, they did not receive any response or benefit. Even multiple emails and reminders to the Bank were of no avail.

Observations of the Commission:

The Commission Presiding Member Surjeet Sharma and Member B.M. Sharma observed that the Bank's claim of complete ignorance about the complainants' application has been contradicted by HUDCO with whom the Bank has an MOU for the scheme. As per HUDCO, the Bank had uploaded the complainants' claim in 2020 which was rejected due to errors in the installment number and cumulative loan disbursement. The Bank failed to upload the revised claim form, which was their responsibility, not the complainants'. Moreover, the Bank did not refute receiving the emails sent by the complainants. It is also evident that the complainants were unable to process and finalize their application without the Bank's involvement. This constitutes a deficiency in service on the part of the Bank causing mental agony, harassment, and loss to the complainants.

It also observed that both the Bank and HUDCO do not dispute that the credit benefit under the scheme is granted by the Government of India and not by them. Therefore, concluding the complaint against Bank regarding deficiency in service is valid, as it does not involve the government. However, the complaint against HUDCO regarding the credit benefit or subsidy claim is not applicable to Commission as it was prompt in attending the application.

The Commission dismissed the complaint against National Housing Bank and HUDCO. It also rejected the claim of complainants for the grant of subsidy as being not maintainable before the Commission. It also ordered the Bank to comply with the said directions within a period of 45 days failing which they shall be liable to pay additional cost of Rs.20,000/- apart from above relief.

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03/07/2023

The bench of Justice Renu Agarwal further clarified that the Court is not against live-in relationships but against illegal relations.

“ …this Court does not deem it proper to permit the parties to such illegality as tomorrow petitioners may convey that we have sanctified their illicit relations. Live-in-relationship cannot be at the cost of the social fabric of this Country. Directing the police to grant protection to them may indirectly give our assent to such illicit relations.”
Essentially, the bench was approached by a 37-year-old married woman and her live-in partner (petitioner no.2) by submitting that though she is not married to him, however, she voluntarily entered into a live-in relationship with him due to the apathetic behaviour of her husband (respondent no. 4).

It was her further case, that her husband (respondent no.4) is trying to endanger their peaceful lives and hence, she prayed for police protection.

On the other hand, the Standing Counsel for the State respondents submitted that this type of relationship cannot be supported by the Court and further submitted that a division bench of the HC has already disapproved such acts in the case of Aneeta and another Vs. The state of U.P. and others wherein, in similar facts and circumstances, it had dismissed the protection plea of a married woman living with her partner with an exemplary cost of Rs.5,000.

Taking into account the ruling of the HC in the case of Aneeta (supra), the Bench, while observing that such a relationship cannot be allowed to exist at the cost of society’s fabric, dismissed their plea.

03/07/2023

A bench of Justice Jyotsna Rewal Dua noted that these days diverse recourses are being adopted to challenge the proceedings under the Domestic Violence Act in the form of petitions under Section 482 of the Code or Section 397 read with section 401 of the Code and sometimes under Article 227 of the Constitution.

It clarified that proceedings under Chapter IV of the Protection of Women from Domestic Violence Act, 2005, are of a civil nature and not criminal and emphasized that an application under Section 12 of the Act is distinct from a complaint under the Code of Criminal Procedure and should not be equated with criminal proceedings.

It then proceeded to issue following guidelines in this regard:

1.The remedies available under Chapter IV of the Protection of Women from Domestic Violence Act, 2005 are civil in nature.

2. The Courts dealing with applications under Section 12 or 23 (2) of the Domestic Violence Act, in the given facts and circumstances of the case, may deviate from the procedure prescribed under Section 28(1) of the DV Act and may formulate their procedure in accordance with enabling provision of Section 28(2) of the DV Act.

3. Petitions under Section 482 of the Code of Criminal Procedure are not maintainable for challenging the proceedings under Section 12 of the DV Act. In appropriate cases, however, recourse can be made to Article 227 of the Constitution of India on satisfaction of well established parameters.

The court has directed the Registrar General to convey these directions to all the concerned Courts in the State of Himachal Pradesh for their necessary compliance.

03/07/2023

The All India Lawyers' Association for Justice (AILAJ) has written a letter to the Bar Council of India and Bar Council of Delhi, urging them to promptly take measures to ensure that all State Bar Councils limit the enrollment fees to Rs. 750 until the courts reach a final decision on the matter.

AILAJ said exorbitant enrolment fees being charged by various State Bar Councils acts as a hurdle for students from marginalized communities who aspire to enter the legal profession.

The letter refers to the Apex Court's decision in BCI v. Bonnie Foi Law College, wherein it upheld the validity of the AIBE (All India Bar Examination) but expressed strong concern over the lack of uniformity in the enrollment fees. "We also have one caveat arising from the plea that different State Bar Councils are charging different fees for enrollment. This is something that requires the attention of the Bar Council of India, which possesses the power to ensure the observance of a uniform pattern and prevent the fee from becoming oppressive for young students entering the legal profession," the court said in the ruling.

03/07/2023

A division bench of Justice Alok Aradhe and Justice Anant Ramanath Hegde set aside the family court order rejecting the divorce petition. It said, “When there is no challenge to the petition as well as to the evidence led by the wife, this Court is of the view that the Family Court erred in rejecting the petition.”

Placing reliance on Supreme Court judgments in Muddasani Venkata Narsaiah (D) through LRs. vs. Muddasani Sarojana (2016) and Vidhyadhar vs. Manikrao & Anr. (1999), the court said “As already stated, there is no cross-examination and there is no objection filed by the husband to the petition filed by the wife. When there is no challenge to the petition as well as to the evidence led by the wife, this Court is of the view that the Family Court erred in rejecting the petition.”

“ The husband has not filed an objection and has not cross-examined the wife. The testimony of the wife has remained unchallenged. Even before this court, none appeared opposing the appeal when the matter is heard today. Considering the materials placed on record this Court is of the view that the wife has established her plea of cruelty and she is entitled to a decree of dissolution of marriage.”

Accordingly it allowed the appeal and dissolved the marriage.

03/07/2023

The High Court of Delhi has held that 2019 Amendment to Section 29A of the A&C Act is procedural in nature and would apply to all arbitrations that were pending on the date of its coming into force. By way of the amendment, the time limit of 12 months for rendering an award was to be calculated from the date of the completion of proceedings and not from the date when the arbitrator entered reference as provided under the unamended Section.

The bench of Justice Anup Jairam Bhambhani extended the time period for rendering an arbitration award after considering the peculiar facts of the cases including the death of two arbitrators, recusal by the third arbitrator and the delay caused by the Covid-19 pandemic.

Analysis by the Court

Firstly, the Court examined the issue of application of the 2019 amendment to Section 29A of the Act. The Court held that the 2019 amendment to Section 29A was only procedural in nature, therefore, it was to apply retrospectively to all pending arbitrations.

The Court held that the pleadings having been completed on 29.08.2019, the arbitrator, in terms of the amended Section 29A, was to deliver the award within 12 months from the date of completion of pleadings. However, during this time the Covid-19 pandemic came and the Supreme Court excluded time from 15.03.2020 till 28.02.2022 from the purview of limitation, therefore, the period of 12 months stood expired on 16.08.2022.

The Court observed that the arbitrator delivered the award to DIAC on 30.08.2022 and there is a marginal delay of 14 days in the rendering of the award but that is on account of certain exceptional circumstances in the form of unfortunate death of the two arbitrators and the recusal of the third arbitrator.

Moreover, the petitioner had filed the petition much within the period of limitation and acted with caution, therefore, the Court allowed the petition and extended the period of limitation till the date on which the award was rendered.

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