Kale and Shinde Associates

Kale and Shinde Associates We are a registered Law Firm We are actually rendered with top class, quick service yet maintaining high standards, efficiency and quality output.

We are known in area of practices of litigation for quick disposals having flexible timings and workout. We also ensure that our clients are best advised on every possible aspect of law. We are having our own network of Advocates, Associates and Consultants expertise in respective field in District Courts, Consumer Forum, High Courts, State Commissions, National Commission and Supreme Court of Ind

ia and we offer our clients comprehensive 24 hours, 365 days a year legal service, support (E-mail, fax, phone) and quick solutions including representations in litigation area at civil and criminal hierarchy Courts of law, banking sector, corporate sectors, Company law. Besides a vibrant and enthusiastic team we are having a perfect blend of experienced and young lawyers with good academic background having rich experience working 365 days. As a team we are committed to efficiently proving the finest quality of legal service in accordance to the highest standards of the legal profession. We strive to maintain the highest standards of professional excellence in all our engagements.

16/03/2019

Supreme Court's Recent View on Custody of Child

The Supreme Court, while delivering a judgment in yet another custody battle between parents, expressed concern about children, the ultimate sufferer in such cases.

Divorce and custody battles can become quagmire and it is heart wrenching to see that the innocent child is the ultimate sufferer who gets caught up in the legal and psychological battle between the parents, said the bench comprising Justice AM Khanwilkar and Justice Ajay Rastogi.

In the case before the Apex court, as the attempts of mediated settlement failed, the court decided the matter on merits and allowed the mother to take children to United States.

Negotiated Settlements In Child Custody Disputes Preferable

However, the court observed that a child's future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings. The court said:

"The judicial resolution of a custody dispute may permanently affect or even end the parties' legal relationship but the social and psychological relationship will usually continue and it seems appropriate that a negotiated resolution between the parents is preferable from the child's perspective for several reasons. A child's future relationship with each of his parents may be better maintained and his existing relationship is less damaged by a negotiated settlement than by one imposed by a court after adversarial proceedings."
Overcome Disharmony For Sake Of Children

The court gave further advise to the 'fighting' parents:

"Spouses must come over the temperamental disharmony which usually exists in every marriage, rather than magnifying it with impulsive desires and passions. Parents are not only caretakers, but they are instrumental in the development of their child's social, emotional, cognitive and physical well-being and work harmoniously to give their children a happy home to which they are justly entitled to. "
The court also observed that a child's psychological balance is deeply affected through the marital disruption. It said:

"The eventful agreement about custody may often be a reflection of the parents' interests, rather than the child's. The issue in a child custody dispute is what will become of the child, but ordinarily the child is not a true participant in the process. While the best interests principle requires that the primary focus be on the interests of the child, the child ordinarily does not define those interests himself or does he have representation in the ordinary sense.. The child's psychological balance is deeply affected through the marital disruption and adjustment for changes is affected by the way parents continue positive relationships with their children. To focus on the child rights in case of parental conflict is a proactive step towards looking into this special situation demanding a specific articulation of child rights."
Though it decided the case on merits, the bench said that it hopes that the parents will forget and forgive their differences and join hands together in providing the congenial atmosphere which may be good not for themselves but also for the development of their minor children.

16/03/2019

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24/02/2019

Is Legal heir and Nominee the same?
I wonder how many of us are aware of this legal twist.

Read on...

Will your Nominee get the money on your death ?

Did you think that your nominee is the person, who will get all the money legally from your Life Insurance Policy and Mutual funds investments ?
Ha! That is exactly what you think if you are not aware of the legal aspects.
We assume a lot of things which sounds like they are obvious, but are not true from the legal point of view.

Today, we all concentrate on nominations in financial products.

For whom are we earning ?
For whom are we investing ?

Who, do we want to leave all our wealth to, in case something happens to us ?

It might be your children, your spouse, parents, siblings etc., or just a subset of these.
You also might want to exclude some people from your list of beneficiaries!.
So you think you will nominate person X in your Insurance policy, and when you are dead and gone, all the money goes to person X and he/she becomes the sole owner ? You are wrong, dude !
It does not work that way.

Let us see how it actually does!

What is a Nominee ?

According to law, a nominee is a trustee, not the owner of the assets.
In other words, he is only a caretaker of your assets.

The nominee will only hold your money/asset as a trustee and will be legally bound to transfer it to the legal heirs.

For most investments, a legal heir is entitled to the deceased’s assets.

For instance, Section 39 of the Insurance Act says the appointed nominee will be paid, though he may not be the legal heir.
The nominee, in turn, is supposed to hold the proceeds in trust and the legal heir can claim the money.

A legal heir will be the one who is mentioned in the will.
However, if a will is not made, then the legal heirs of the assets are decided according to the succession laws, where the structure is predefined on who gets how much.

For example, if a man during his lifetime executes a will... In the will, he mentions his wife and children as legal heirs, then after his death, his wife and children are the legal owners of his assets.

It is essential that one needs to execute a will.
It is the ultimate source of truth and replaces the succession law.

Nominee can also be one of the legal heirs.

Important :
Mention the Full Name, Address, age, relationship to yourself of the nominee.
Do not write the nomination in favour of wife and children as a class.
Give their specific names and particulars existing at that moment.
If the nominee is a minor, appoint a person who is a major as an appointee giving his full name, age, address and relationship to the nominee.

Why is the concept of Nominee ?

So you might be wondering, if the nominee does not become the sole owner, why does such a concept of a nominee exist at all ?

It is pretty simple. When you die, you want to make sure that the Insurance company, Mutual fund or your Shares should at least get out of the companies and go to someone you trust, and who can further help, in process of passing it to your legal heirs.

Otherwise, if a person dies and has not nominated anyone, your legal heirs will have to go through the process of producing all kind of certificates like death certificates, proof of relation etc., not to mention that the whole process is really cumbersome! (For each legal entity! The insurance company, the mutual funds, for the shares, for the real estate..) .
So, to simplify, if a nominee exists, these hassles do not happen, since the company is bound to transfer all your money or assets to the nominee.
The company then goes out of scene & then, it is between nominee and legal heirs.

Example of Nomination :

Ajay was 58 years old who died recently in an accident. As his children were settled, he wanted to make sure that his wife is the sole owner of all the monetary assets. This includes his insurance policy and mutual funds. So during his lifetime, he nominated his wife as a nominee in his term insurance policy and mutual funds investments. However, after Ajay’s death things did not turn up the way he wanted. The reason being Ajay did not leave a will. Though his wife was the nominee in all his movable assets, as per the law, his wife, along with children, were the legal heirs and all of them had equal right to Ajay’s assets.

One simple step which could have saved the situation was that Ajay should have made a will which clearly stated that only his wife was entitled to get all the money and not his children.

Nomination in Life Insurance :

A policyholder can appoint multiple nominees and can also specify their shares in the policy proceeds. Nomination in life insurance has one limitation, as insurance policies are bought to secure your financial dependents, your first choice of nominee has to be your family members. In case you want to nominate a non-family member like a friend or third party, you will have to show/PROVE the insurance company that there is some insurable interest for the person. This happens because of a Clause called PRINCIPAL OF INSURABLE INTEREST in insurance. Note that provision of nomination in life insurance is related to Section 39 of the Insurance Act.

Note that as per LIC website –....

Nomination is a right conferred on the holder of a Policy of Life Assurance on his own life to appoint a person/s to receive policy moneys in the event of the policy becoming a claim by the assured’s death. The Nominee does not get any other benefit except to receive the policy moneys on the death of the Life Assured.
A nomination may be changed or cancelled by the life assured whenever he likes without the consent of the Nominee.

Make sure, you have a nominee for your policy for easy settlement of the claim, if you do not have any nominee mentioned in the policy, it can turn out to be a disaster for your dependents to get a claim.

Nomination in Mutual Funds :

In case of mutual funds, you can nominate up to three people, who can be registered at the time of purchasing the units. While filling in the application form, there is a provision to fill in the nomination details.

Even a minor can be a nominee, provided the guardian is specified in the nomination form.
You can also change nomination later by filling up a form which is available on the mutual fund company website.
Nomination in mutual funds is at folio level and all units in the folio will be transferred to the nominee(s). If an investor makes a further investment in the same folio, the nomination is applicable to the new units also.
A non-resident Indian can be a nominee, subject to the exchange control regulations in force from time to time.

Nomination in Shares :

Quiz for you...
Now you know what a Nominee means and who actually gets the money.
So if there is a husband H, with wife W and nephew N, and he has nominated his nephew N to be the nominee of his shares in demat account, who will have the legal right to own the shares after husband’s death ? If you answer is wife, you are wrong in this case!

In case of stocks, it does not work the usual way, if a will does not exist.

In the verdict, Justice Roshan Dalvi struck down a petition filed by Harsha Nitin Kokate, who was seeking permission to sell some shares held by her late husband.
The Court noted that as she was not the nominee, she had no ownership rights over the shares. Ms Kokate’s lawyer had argued that as she was the heir of her husband who had died intestate (without a will), she should have ownership rights of the shares, and be able to do anything with them as she wished.
In this case, Ms Kokate’s husband had nominated his nephew in favour of the shares. Justice Dalvi however noted that under the provisions of the Companies Act and the Depositories Act, Acts which govern the transfer of shares, the role of a nominee was different.

A reading of Section 109(A) of the Companies Act and 9.11 of the Depositories Act makes it abundantly clear that the intent of the nomination is to vest the property in the shares which includes the ownership rights there under in the nominee upon nomination validly made as per the procedure prescribed, as has been done in this case.

It means that if you have not written a will, anyone who has been nominated by you for your shares will be the ultimate owner of those stocks... The succession laws on inheritance will not be applicable... but, in case, you have made a will, that will be the source of truth.

Nomination in PPF :

Let me give you some shock first. If you have Rs 10 lakh in your public provident fund (PPF) account and you have not nominated anyone for your PPF account, your legal heirs will get maximum of Rs1 lakh only!
Yes, it is so important to have a nominee, now you get it .

You can nominate one or more persons as nominee in PPF. Form F can be used to change or cancel a nomination for PPF.
Also note that you cannot nominate anyone if you open an account for a minor.

Nomination in Saving/Current/FD/RD Account in Banks :

FD’s also come with nomination facility. While opening a new account, there is a column for nomination in the same form and you should fill it. You can nominate two persons with first and second option. Note that in case you have not done any nomination till now, you should request Form No DA-1 from your Bank which is used to assign a nominee in future. (Examples of ICICI Bank , HDFC Bank , Canara Bank) .
In the same way to change/cancel the nomination, you need to fill up Form no DA-2.

Read about Corporate Fixed Deposits :

As per a famous case, A Bench of Justices Aftab Alam and R M Lodha in an order said that the money lying deposited in the account of the original depositor should be distributed among the claimants in accordance with the Succession Act of the respective community and the nominee cannot claim any absolute right over it.
Section 45ZA(2)(Banking Regulation Act) merely put the nominee in the shoes of the depositor after his death and clothes him with the exclusive right to receive the money lying in the account. It gives him all the rights of the depositors so far as the depositors account is concerned. But, it by no stretch of imagination make the nominee the owner of the money lying in the account, the Bench observed.

CONCLUSION :

Now you know!
Taking Personal finance for granted can be fatal!!!!!

Just investing knowledge, is not enough to have a great financial life.
You also need to be well versed with basic legal aspects and make sure you carry out all due arrangement .

Nomination is one important aspect you should seriously consider, when checking for the financial products you have bought or plan to buy in future.

Mistakes in Personal Finance :

It’s important to make sure that your loved ones do not face legal issues and only say and think lovely thoughts about you when you are not around, rather than crib &
grumble.

02/01/2019

*Interpretation of Stamp Duty On Old Documents.*



Many members have misunderstood this judgement . Also a wrong interpretation published by a Marathi newspaper has added to the confusion. I have tried to explain below the judgement in as simple language as possible.
This judgement is delivered by the honourable court after hearing one particular case but it has far reaching consequences. The judgement has set a precedence and that gives relief to a lot of owners of old flats (flats purchased before 1985) who were affected by high handed behaviour of sub registrar.
This judgement is about unjust retrospective stamp duty and penalty charged by sub registrar.
Concept of ready reckoner, stamp duty on market value came into existence in Maharashtra on 10/12/1985. As per the prevailing law before 1985, all Sales transactions of immovable property were carried out with an unregistered agreement on a Rs 10 stamp paper. , these documents did not attract stamp duty. These agreements were acceptable in housing societies and flat transfers were entered into society records with the help of such agreements.
Now to take an example, Suppose in 1970 A person Mr. “A” purchased a flat from builder. After that the ownership of the flat changed two or three times through such unregistered agreements on stamp papers and the ownership passed on to Mr “D” (A sold the flat to B, B sold it to C, and then C sold it to D ). All this happened before 10/12/1985. Mr “D” stayed in the house till 2018 and now decided to sell it to Mr.”E”.
As per present rules, Mr “E” prepared a proper sale deed and in order to prove his title over the flat, attached copies of all previous chain of ownership agreements.
The sub registrar pointed out the old agreements and told Mr. “E” that the previous agreements are bad or invalid and that Mr “E” should not only pay stamp duty on his purchase agreement but also must pay stamp duty on all the previous transactions and additionally pay penalty calculated at present RR rate. This was done inspite of the fact that Mr. “E” has nothing to do with earlier sale agreements.
In a city like Mumbai this amount works out to be huge .
The judgement questions this very authority of sub registrar to charge retrospective stamp duty on earlier agreements.
As mentioned earlier, the concept of stamp duty on market value, RR rate was non existent before 1985. So Sub registrar cannot classify these pre 1985 agreements as “bad” or “invalid” as these agreements on Rs 10 stamp paper were done as per applicable laws at that point of time. In fact the honourable court observed that leave alone charging retrospective stamp duty, the sub registrar should not even question these old agreements which were in accordance with applicable laws at that point of time, and the sub registrar should charge stamp duty only on the present agreement submitted to him and register it accordingly.
*UNFORTUNATELY A WRONG INFORMATION IS BEING CIRCULATED ON VARIOUS GROUPS REGARDING STAMP DUTY ON RESALE OF ANY FLAT. IT IS VERY CLEAR THAT STAMP DUTY IS APPLICABLE ON EACH AND EVERY SALE OF IMMOVABLE PROPERTY BE IT PURCHASE FROM BUILDER OR A RESALE FLAT.*
*THIS JUDGEMENT QUESTIONS THE AUTHORITY OF THE SUB REGISTRAR TO CHARGE RETROSPECTIVE STAMP DUTY AND IMPOSE ARBITRARY PENALTY. I REPEAT, IT DOES NOT GIVE ANY STAMP DUTY CONCESSION WHATSOEVER ON RESALE OF IMMOVABLE PROPERTY.*

14/07/2018

"वेध कायद्याचा"
वडिलोपार्जित मिळकत आणि मुलींचे हक्क : "सर्वोच्च " एकमताची गरज.
वडिलोपार्जित मिळकत आणि मुलींचे हक्क : "सर्वोच्च " एकमताची गरज.

हिंदू वारसा कायद्याइतकी गोंधळाची स्थिती इतर कुठल्याही कायद्याबाबत निर्माण झाली नसेल. "कायद्यापुढे सर्व समान" ह्या मूलभूत तत्वाला अनुसरून केंद्र सरकारने हिंदू वारसा कायदा १९५६ मध्ये २००५ साली विविध दुरुस्त्या केल्या आणि वडिलोपार्जित मिळकतींमध्ये मुलांना आणि मुलींना समान हक्क मिळण्यासाठी कलम ६ मध्ये महत्वाचे फेरबदल केले आणि ही दुरुस्ती अंमलात येण्यासाठी ०९/०९/२००५ हि तारीख मुक्रर केली गेली. तसेच दुरुस्त कलम ६(५) प्रमाणे २०/१२/२००४ पूर्वी जर एखादी मिळकत खरेदी, गहाण,बक्षिसपत्र, हक्कसोड पत्र , मृत्यूपत्र इ. दस्तांनी कायदेशीरपणे किंवा रजिस्टर्ड वाटपपत्राने किंवा कोर्टाच्या हुकूमनाम्याने तबदील झाली असेल, तर अश्या मिळकतींमध्ये मुलींना सामान हक्क मिळणार नाही असे हि नमूद केले. . मात्र ह्या दुरुस्तीचा अंमल हा पूर्वलक्षी प्रभावाने (रिट्रोस्पेक्टिव्ह ) करायचा का ०९/०९/२००५ पासून म्हणजेच प्रोस्पेक्टिव्ह समजायचा यावरून बराच गोंधळ उडाला, त्यातच विविध उच्च न्यायालयांचेही परसपर विरोधी निकाल आले. पण इथे हा सिलसिला थांबत नाही. मा. सर्वोच्च न्यायालयाचे देखील काही असे निकाल आले कि, लोकांना नक्की सल्ला काय द्यायचा हाच प्रश्न वकील वर्गासमोर निर्माण झाला.

ह्या पार्श्वभूमीवरचा पहिला म्हणता येईल असा निकाल सर्वोच्च न्यायालायने १६/१०/२०१५ रोजी प्रकाश विरुद्ध फुलवती या याचिकेवर दिला आणि पहिल्यांदाच सदरची दुरुस्ती ही ०९/०९/२००५ पासून म्हणजेच प्रोस्पेक्टिव्ह असल्याचा स्पष्ट शब्दात निकाल दिला.फुलवतीबाईंनी, १९८८ साली मरण पावलेल्या वडिलांच्या मिळकतीमध्ये हिस्सा मिळवण्यासाठी १९९२ मध्ये दावा लावला. दरम्यान २००५ मध्ये झालेल्या कायदा दुरुस्तीप्रमाणे समान हक्क मिळावा म्हणून त्यांनी दावा दुरुस्ती केली. मात्र त्यांचा दावा फेटाळताना ०९/०९/२००५ ह्या तारखेच्या दिवशी जर मुलगी आणि तिचे वडील जर जिवंत असतील (a living daughter of a living coparcener ) तरच त्या मुलीला वडिलोपार्जित मिळकतींमध्ये मुलांप्रमाणेच समान हक्क मिळेल असे सर्वोच्च न्यायालायने स्पष्ट केले. ह्या निर्णयाचे सर्वत्र स्वागत झाले.

ह्या निकालानंतर १० वर्षे चाललेला कायद्यातील गोंधळ संपला असे वाटत असतानाच दि.०१ /०२/२०१८ रोजीचा सर्वोच्च न्यायालयाचा दुसरा निकाल आला आणि परत एकदा गोंधळाची परिस्थिती निर्माण झाली आहे असे वाटते. दानम्मा आणि इतर विरुद्ध अमर आणि इतर, (सिविल अपील क्र . १८८/२०१८) ह्या याचिकेत सर्वोच्च न्यायालयापुढे २ प्रश्न उपस्थित झाले की १९५६ पूर्वी जर मुलींचा जन्म झाला असेल तर त्यांना २००५ च्या कायदा दुरुस्तीचा लाभ द्यायचा का? आणि ह्या दुरुस्तीप्रमाणे मुलींना मुलांप्रमाणेच सहहिस्सेदार म्हणून समान हक्क मिळेल का ?

ह्या केस ची थोडक्यात हकीकत बघुयात. गुरुलिंगप्पा सावडी ह्या व्यक्तीला २ मुली आणि २ मुले असतात. मुलींचा जन्म १९५६ पूर्वी झालेला असतो. २००१ मध्ये गुरुलिंगप्पा मयत झाल्यावर त्याचा एक नातू , अमर, हा आजोबांच्या एकत्र कुटुंबाच्या मिळकतींमध्ये वाटप करून मिळावा म्हणून २००२ साली दावा दाखल दाखल करतो. ह्या दाव्याला सदरील अपेलण्ट भगिनी म्हणजेच गुरुलिंगपाच्या २ मुली विरोध करतात. कनिष्ठ न्यायालय तसेच उच्च न्यायालयामध्ये देखील अमर आणि बाकीच्या सहहिस्सेदारांच्या बाजूने निकाल देते आणि अपेलण्ट-भगिनींना समान हक्क नाकारते आणि प्रकरण सर्वोच्च न्यायलमध्ये पोहोचते.

आता विरोधाभास असा की सर्वोच न्यायालायने वरील प्रकाश विरुद्ध फुलवती केसचा विस्तृत उहापोह करून तो निकाल हा अंतिम असल्याचे सुरुवातीला मान्य केले आहे. मात्र पुढे जाऊन असे नमूद केले आहे कि वाटपाच्या दाव्यात जो पर्यन्त अंतिम हुकूमनामा होत नाही तो पर्यंत सहहिस्सेदारांचे हिस्से ठरत नाहीत आणि ह्या केस मध्ये २००७ साली फक्त प्राथमिक हुकूमनामा झाला आहे., तसेच २००५ सालच्या दुरुस्ती प्रमाणे मुलींना मुलांप्रमाणेच जन्मतः समान हक्क मिळला पाहिजे आणि सबब दानम्मा आणि तिच्या बहिणालाही त्यांच्या भावाप्रमाणेच सामान हक्क मिळाला पाहिजे.

मात्र हा निष्कर्ष "प्रकाश" च्या निकालाच्या विरुद्ध आहे कारण निःसंशय पणे ०९/०९/२००५ ह्या दिवशी वडील-गुरुलिंगप्पा जिवंत नव्हते. जर का "प्रकाश" चा निर्णय मान्य केला तर अपेलण्ट भगिनींना समान हक्क मिळणार नाही. मात्र प्रत्यक्षात त्यांना हक्क दिला गेला आहे आणि त्यामुळे सदरील दुरुस्ती रिट्रोस्पेक्टिव्ह म्हणायची का, असा पेच निर्माण झाला. बरे तसे म्हणले तर जे दावे चालू आहेत किंवा ज्यांचा निकाल लागलाय त्यांच्यावर देखील ह्याचा परिमाण होणार. एकतर वरील दोन्ही निर्णय हे २ सदस्यीय खंडपीठाचेच आहेत त्यामुळे कुठला निर्णय मान्य करायचा असा प्रश्न आता खालील न्यायालयांपुढे आणि वकिलांपुढे निर्माण झाला होता , कारण सर्वोच्च न्यायालयाचा निर्णय हा कायदा असतो. तसेच सर्वोच्च न्यायालयाच्या निर्णयाचा "अर्थ" काढताना "अनर्थ " झाला तर परत न्यायालयाच्या अवमानाची भीती !
अश्या गोंधळाच्या परिस्थितीत परत एकदा १९ एप्रिल २०१८ रोजीच्या मा. सर्वोच्च न्यायालयाच्या मंगमल उर्फ थुलासी विरुद्ध टी .बी. राजू ह्या याचिकेवरील २ सदस्यीय खंडपीठाच्या निकालामुळे पूर्णविराम मिळाला का असा प्रश्न वकील वर्गामध्ये उपस्थित झाला. ह्या निकालामुळे देखील काही मूलभूत प्रश्न उपस्थित झाले आहेत. हिंदू वारसा कायद्यामध्ये विविध राज्यांनी त्यांच्यापुरती दुरुस्ती करून मुलींना वडिलोपार्जित मिळकतींमध्ये सामान हक्क दिला होता. महाराष्ट्रा मध्ये देखील १९९४ साली अश्याच प्रकारची दुरुस्ती केली गेली होती. तामिळनाडू सरकारने १९८९ साली दुरुस्ती करून कलम २९-अ अन्वये त्या तारखेला अविवाहित असलेल्या मुलींना वडिलोपार्जित मिळकतींमध्ये समान हक्क तसेच वाटप मागण्याचा अधिकार दिला होता. ह्या केस मधील दोन्ही अपेलन्टस चे लग्न १९८९ पूर्वीच झाल्यामुळे त्यांचा वाटपाचा दावा मद्रास उच्च न्यायालयापर्यन्त फेटाळला गेला होता. त्या विरुद्ध त्यांनी सर्वोच्च न्यायालयात दाद मागितली. ह्या निकालाच्या सुरुवातीलाच पुरुषांच्या (male lineage ) मागील ४ पिढ्यांपासून म्हणजेच पणजोबांपासून जी मिळकत चालत आली आहे तिला वडिलोपार्जित (ancestral ) मिळकत असे म्हणता येईल, पण आई, आईची आई, काका, भाऊ ह्यांच्या पासून मिळालेल्या मिळकतींना वडिलोपार्जित मिळकत म्हणता येणार नाही, असे सर्वोच्च न्यायालयाने ह्या केस मध्ये नमूद केले आहे. परंतु मा. सर्वोच्च न्यायालायने प्रकाश विरुद्ध फुलवती ह्या केसचा आधार घेऊन तामिळनाडू कायदा दुरुस्तीने निर्धारित केलेल्या तारखेच्या निकषांमध्ये दोन्ही अपेलन्टस बसत नसल्यामुळे त्यांना वडिलोपार्जित मिळकतींमध्ये समान हक्क द्यायच्या निर्णयावर शिक्कामोर्तब केले.

मात्र ह्या निकालाने देखील काही मूलभूत प्रश्न उपस्थित होतात. सर्वात प्रथम म्हणजे केंद्रीय कायद्याने राज्य सरकारचा कायदा आपोआप रद्दबातल होतो त्यामुळे २००५ साली केंद्र सरकारने आणलेल्या हिंदू वारसा कायदा दुरुस्तीमुळे राज्य सरकारने केलेल्या दुरुस्त्या आपोआप रद्द होतात . परंतु असे असून देखील निकाल मात्र १९८९ च्या तामिळनाडू दुरुस्तीला अनसूरन दिल्याचे दिसून येते ह्याचे कारण ह्या केस मध्ये केंद्रीय दुरुस्तीपूर्वीच वारसा हक्क प्रस्थापित झाला होता. असे प्रस्थापित झालेले हक्क २००५ च्या दुरुस्तीमुळे हिरावून घेतले जाऊ शकत नाहीत, अन्यथा प्रचंड गोंधळाची परिस्थिती उदभवेल. अर्थात ०९/०९/२००५ च्या निकषात बसत नसल्यामुळे केंद्रीय कायद्यामुळे देखील त्यांना सामान हक्क मिळाला नसता हा भाग अलाहिदा . मात्र ह्या गोष्टीवर देखील सर्वोच्च शिक्कामोर्तब असणे गरजेचे आहे.

त्यामुळे बाकीच्या राज्यांनी ज्या दुरुस्त्या केल्या त्यांचे काय असा प्रश्न उपस्थित होतो. महाराष्ट्रात देखील १९९४ साली केलेल्या कायदा दुरुस्तीमुळे २२/०६/१९९४ पूर्वी लग्न झालेल्या मुलींचा अपवाद वगळता इतर सर्व मुलींना समान हक्क वडिलोपार्जित मिळकतीमध्ये दिला गेला. परंतु २००५ च्या केंद्रीय कायदा दुरुस्तीप्रमाणे ०९/०९/२००५ ही तारीख मुक्रर केल्यामुळे त्या दिवशी मुलगी आणि तिचे वडील हे जिवंत पाहिजेत असा एकच निकष उरतो. त्यामुळे आता मुलींचा जन्म कधी झाला आणि त्यांचे लग्न कधी झाले, हे मुद्दे गौण होतात.
एखाद्या व्यक्तीची स्वकष्टार्जित मिळकत ही त्याच्या नातवंडा - पतवंडांसाठी वडिलोपार्जित होत नाही आणि म्हणून त्यांना अश्या मिळकतीमध्ये जन्मतःच हक्क प्राप्त होत नाही हे मा. सर्वोच्च न्यायालायने आधीच्या अनेक निकालांमध्ये स्पष्ट केले आहे, त्याचा उल्लेख ह्या निकालात नाही. तसेच नोशनल पार्टीशन ह्या महत्वाच्या तत्वाचा आणि वर नमूद केलेल्या दानम्माच्या निकालाचा देखील संदर्भ घेतलेला दिसून येत नाही.
त्यामुळे ०९/०९/२००५ हिच तारीख प्रमाण मानायची का अंतिम हुकूमनाम्याची तारीख मानायची त्याचबरोबर राज्यस्तरीय कायदा दुरुस्ती विचारात घ्यायच्या का नाहीत हे पेच आता एकदाचे सोडवावेच लागतील. एक गोष्ट खरी की सर्वांचे सारखेच समाधान कुठ्ल्याही कायद्याने पूर्ण होऊ शकत नाही आणि हिंदू वारसा कायदाही त्याला अपवाद नाही. मात्र कायद्यात सुस्पष्टता आणणे काही अवगढ नाही आणि म्हणून आता हे प्रकरण सर्वोच्च न्यायालयाच्या पूर्णपीठाकडे जाणे गरजेचे आहे किंवा सरकारनेच ह्या बाबतीत पुढाकार घेऊन इथले "सर्वोच्च " गोंधळ आणि भय संपवावेत .

06/06/2017

Plea of juvenility could be taken up by an accused at any stage of proceedings, even after disposal of case from Supreme Court

High Court of Delhi

Chanchal v. State

Appellant was convicted under Sections 392 and 34 of Indian Penal Code, 1860 (IPC) and was sentenced to undergo RI for seven years, fine of Rs. 5000/- and in default of payment of fine to undergo further RI for six months. Appeal was admitted and Trial Court records were called for. Along with appeal, Appellant had also filed an application seeking suspension of sentence and another application seeking his release from custody on ground that, on date of occurrence i.e. 13.05.2013, Appellant was below 18 years of age. In support of aforesaid contention, a school leaving certificate issued by Directorate of Education, Government of NCT of Delhi was brought on record. Aforesaid document at Annexure A to application discloses that, he was 17 years, 9 months and 22 days at time of commission of offence. By order dated 28th April, 2016, Appellant was directed to furnish further information in terms of directions given by this Court in Criminal Appeal No. 1008/2011 (Mohd. Wasim v/s. State).

Information furnished by Appellant, on verification by police was found to be correct and status report reveals that, as per record available, date of birth of Appellant is 14th July, 1995, incident took place on 13th May, 2013 and as such real age of Appellant/applicant at time of incident was less than 18 years (17 years, 9 months and 22 days).

Section 7A of Juvenile Justice (Care and Protection) Act, 2000 provides that, whenever a claim of juvenility is raised before any Court or a Court is of opinion that, an accused person was a juvenile on date of commission of offence, Court shall make an inquiry, take such evidence as may be necessary (but not an affidavit) so as to determine age of such person, and shall record a finding whether person is a juvenile or a child or not, stating his age as nearly as may be: provided that a claim of juvenility may be raised before any Court and it shall be recognized at any stage, even after final disposal of case, and such claim shall be determined in terms of provisions contained in this Act and the rules made thereunder, even if juvenile has ceased to be so on or before the date of commencement of this Act.

In view of law laid down that, plea of juvenility could be taken up by an accused at any stage of proceedings, even after disposal of case from Supreme Court, it leaves no option for this Court but to consider release of the petitioner from jail. Nominal roll indicates that, Appellant has already served more than four years in custody and as a juvenile, he could only have been sentenced for three years.

05/06/2017

High Court of Karnataka

Madhukar G. Angur and Ors. Vs. Madhusudhan Mishra and Ors.

16.05.2017

Civil

Grant of an injunction is not merely a formality to be performed, but is a serious step to be taken during course of trial

Appellants are aggrieved by order passed by IV Additional City Civil and Sessions Judge, whereby learned Civil has granted a temporary injunction in favour of Respondent No. 1, (Plaintiff), and has debarred Appellants from interfering with administration and management of Alliance University, (University), and Alliance Business School ('Sponsoring Body"), and from entering upon three campuses owned and operated by University. Mr. Madhusudan Mishra, Plaintiff, claims to be the Deputy Registrar and In-Charge Registrar of the University. Appellant pleaded that, since Mr. Madhukar Angur was appointed as Chancellor for life, under Section 15 (2) of Alliance University Act, 2010, he could not be removed by Sponsoring Body.

In case of Lakshminarasimhiah and Others v. Yalakki Gowda, it is observed that, relief should be awarded only in clear cases that are reasonably free from doubt. Court should therefore, be guided by fact that, burden of proof rests upon complainant to establish material allegations entitling him to relief. While dealing with role of trial Court, in case of Maria Margarida Sequeira Fernandes and Others v. Erasmko Jack De Sequeira (Dead) through LR's., Apex Court has opined that, "in a suit for mandatory injunction, it is bounden duty and obligation of Court to critically examine pleadings and documents and pass an order of injunction while taking pragmatic realities in consideration. Court's primary concern has to be to do substantial justice."

It is, indeed, trite to state that, while dealing with an application under Order ###IX, Rules 1 and 2 of Code of Civil Procedure, 1908 (CPC), trial Court has to examine existence of three factors, namely, existence of a prima facie case, balance of convenience of parties, and if an irreparable loss would be caused to Plaintiff in case temporary injunction were refused by Court. Moreover, it is a settled position of law, that while considering existence of a prima facie case, trial Court has to examine locus standi of Plaintiff, maintainability of suit, cause of action pleaded by Plaintiff, and if there is a trialable case or not.

Since, Appellants have challenged locus standi of Plaintiff, and maintainability of suit, at time of consideration of application for temporary injunction, trial Court was required to deal with both these issues, even on a prima facie basis. Trial court could not have ignored these two issues as these two issues go to the root of case. Despite fact that, said pleas were raised, trial court has failed to consider the same. According to Section 4(4) of Act, University is a body corporate. Section 4(6) of Act provides that, in all suits and other legal proceedings by or against University, pleading shall be signed and verified by, and all processes in such suits and proceedings shall be issued to and be served on Registrar.

Plaint clearly reveals that, all reliefs prayed for are with relation to University. Not a single relief has been prayed for Mr. Madhusudhan Mishra, Plaintiff. Since reliefs relate to University, suit is for University. Yet suit has not been presented by University. Perusal of e-mail, authorisation letter, clearly reveals that, Mr. Madhusudhan Mishra is being authorised to sign documents dealing with legal issues pertaining to University, but with permission and approval of Chancellor. There is not an iota of evidence submitted by Plaintiff even indicating that, he has permission and approval of Chancellor for instituting suit against Appellants. Thus, it is crystal clear that, Mr. Madhusudhan Mishra has no authority to institute suit on behalf of University. Civil Judge has not considered e-mail which is alleged to be authorisation letter. Section 4(6) of Act, clearly reveals that, it does not authorise Registrar to delegate his power to file a suit on behalf of, or to contest case on behalf of University, to any other person. Therefore, said power could not be delegated by Registrar of University to Mr. Madhusudhan Mishra.

Furthermore, although Plaintiff claims to be in-charge of post of Registrar, he has not produced any documentary evidence to establish fact that, he has been appointed as an Officiating Registrar of University. In absence of relevant evidence, affidavit filed by Plaintiff cannot be taken as gospel truth. Even an affidavit has to be corroborated by documentary evidence. However, in present case, relevant documentary evidence is conspicuously missing. Moreover, purported authorisation letter does not even qualify as an authorisation letter for filing civil suit. Therefore, Mr. Madhusudhan Mishra, having no authority from University to file suit, prima-facie could not have filed suit on behalf of University. Thus, prima-facie, he does not have locus standi to file suit. Thus, on a prima-facie basis, suit is not maintainable.

In present case, since University is a body corporate, suit should have been filed by University through its Registrar as required under Section 4(6) of Act. However, suit has not been filed by University through its Registrar. Moreover, as University has not authorised Mr. Madhusudhan Mishra for instituting suit on its behalf. Therefore, it is not a case of mis-description of a party. But, it is clearly a case of mis-joinder of necessary party. Although, under Order 1 Rule 10 of CPC, trial Court has power to strike out any party improperly joined, or to implead a necessary party, but so far, no application under Order 1 Rule 10 of CPC, has been filed by Plaintiff. Therefore, trial Court should have realized that, neither Mr. Madhusudhan Mishra has locus standi to file suit, nor suit is maintainable against Appellants. At relevant time, Mr. Madhusudhan Mishra was pretending to be the authorised Registrar, although he did not possess any authorisation letter in his favour.

It is, indeed, trite to state that, grant of an injunction is not merely a formality to be performed, but is a serious step to be taken during course of trial. Thus, trial Court should be careful and cautious while dealing with an application for temporary injunction. Trial Court is not justified in granting a temporary injunction in favour of Plaintiff. Once neither of these two factors are in favour of Plaintiff, question of irreparable loss caused to Plaintiff would not even arise. Court allowed the appeal and set aside impugned order.

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