Karta¶s power to alienate and Injunction:

The Karta¶s right to alienate the joint family property

for legal necessity cannot be restrained by a permanent

injunction at the behest of one of the coparceners.

No doubt the law confers a right on the coparceners to

challenge the alienation made by the Karta but that right is not inclusive of the right to obstruct the alienation. Nor the right to obstruct alienation could be considered

as incidental to the right to challenge the alienation, as such relief of injunction against Karta from alienating coparcenary property not available to coparceners.

Karta¶s power to alienate and Injunction:

The Supreme Court held inSunil Kumar v.

Ram Prakash,AIR 1988 SC 576, that it is not open

to a coparcener to sue for an injunction restraining the Karta/manager from alienating on the ground that it is not for legal necessity or benefit.

Benefit to estate:

InGallamudi v.Indian Overseas Bank,AIR 1978

AP 37, case held that the Karta who was running a

hotel business mortgaged the family property with a view to raising funds for renovation and reconstruction of the hotel, it was held to be for the benefit of estate. InHari Singh v.Umrao Singh,AIR 1979 All. 65, case held that the land yielding no profit were sold to purchase land yielding profit, it was held to amount to benefit of estate.

Benefit to estate:

InAnil Kumar v.Krishna Murty, AIR 1995 AP 105,

it was held that the sale of the joint family property by the Karta/manager for migrating to a different place for better living is a valid one.

Sardha Ramv. Nakli Singh, (1990) 1 HLR 303 (SC),

a case before the Supreme Court that,N faced by a notice under the Punjab Utilisation Act, that unless he brought the land under cultivation, they would be leased to others, decided to sell a portion of the land so that the sale proceeds may be utilised for the reclamation of the major part of the remaining land. The Supreme Court held that thebona fide decision taken byN cannot be said not to be an act of good management and the sale was valid.

Benefit to estate:

InMukesh Kumar v.Harbans Wlariah, 2000(1)

HLR 95 (SC), where all the male members of the joint family who were major at that time were partners of the firm and was therefore, a family business, the fact that the joint family properties were attached for payment of the income-tax, itself was sufficient to hold that the sale of the property was for the purpose of benefit of the joint family.

Indispensable duties:

The

term

indispensable

duties

implies

performance of those acts which arereligious,

piousor charitable.

Performance of marriage is aSamskara and

therefore performance of marriage of members of the joint family, particularly of daughters, is an indispensable duty, though it is covered under legal necessity.

3 Alienation

he interests of both the adult and minor coparceners in the property; provided that the alienation is made for legal necessity, or for the benefit of the estate. When alienation is made by the manager without legal necessity, but with the consent of all other coparceners, they being all adults, the alienation is valid in its entirety. The alienation by a manager of a joint family made without legal necessity is not void, but voidable, at the option of the other coparceners_- they may affirm or repudiate it. But a third party cannot repudiate it.

In Raghubanchmani v Ambica Prasad AIR 1971 SC 776, the Supreme Court has held that in any event an alienation by the manager of the joint Hindu family even without legal necessity is voidable and not void.

In CIT v Gangadhar Sikaria Family Trust (1983) 142 ITR 677, the Gauhati High Court was called upon to decide whether the Income-tax Officer can challenge the validity of an alienation by the karta of a Hindu undivided family. The High Court held that under the Hindu Law, the karta of a Hindu undivided family has an unfettered right to alienate the joint family property for legal necessity and for the benefit of the estate or the family. It was further held that even if a transfer by the karta were not for legal necessity or for the benefit of the estate, it would be only voidable and not void ab-initio.

It is clear from the above discussion that alienation by the karta or manager of a joint family is voidable, but not void. Hence, a third party cannot repudiate it, except in cases where there is a suggestion that it was in fraud on creditors.

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Section 53 in The Indian Penal Code, 1860

The Indian Penal Code, 1860

Section 51 in The Indian Penal Code, 1860

U.P. Oil Mills vs Jamna Prasad And Ors. on 3 February, 1933

Ajodhia Prasad vs Data Ram And Ors. on 27 November, 1930

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Marabasappa v. Ningappa, (2011) 9 SCC 451Family and Personal LawsHindu LawSs. 5, 6, 14 to 16 and 19 - Property acquired by Hindu woman, whether becomes or blends in joint family property -Held, Hindu woman has full ownership over any property that she has acquired on her own or as stridhana - Such

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property shall not become part of joint family property and she may dispose of same as per her wish - Asserting that suitproperties are joint family properties purchased out of income from joint family, plaintiff-defendants claimed partition ofsaid property at 1/3rd share each - Trial court partly decreeing suit, held that except tenanted part of Schedule A landheld by husband of P (mother of defendants), remaining Schedule A land was self-acquired property of P, and hence notavailable for partition as joint family property - High Court, setting aside order of trial court holding that except stridhanaland, rest of property was part of joint family property, though purchased in name of P - Sustainability - Held, nopresumption can be made as to joint family property in absence of evidence in favour of same - On facts, husband of P,except being tenant of certain portion of Schedule A land, had no independent source of income and was living with hisparents-in-law - None of defendants (children of P) had any income of their own to purchase scheduled properties -Evidence indicated that only P had wherewithal to purchase said properties from income arising out of her stridhana land- Thus, property so acquired could not be held as joint family property - Finding of trial court that said properties were selfacquiredproperties of P, upheld, (2011) 9 SCC 451-AFamily and Personal LawsHindu LawProperty of Hindu woman left without will - Where property of Hindu woman is not alienated by executing will, being herabsolute property, such property would not be available for partition among members of joint family since it does notpartake character of joint family property, (2011) 9 SCC 451-BFamily and Personal LawsHindu LawJoint family property - Presumption as to - Held, no presumption can be made of joint family property in absence ofstrong evidence in favour of same, (2011) 9 SCC 451-CFamily and Personal LawsHindu LawJoint family property - Self-acquired property or joint family property - Determination of - Burden of proof - When noproof put forth by plaintiff as to disputed property being joint family property, shifting burden of proof on to defendants toprove said property as being self-acquired, held, not proper, (2011) 9 SCC 451-DFamily and Personal LawsHindu LawJoint family property - Self-acquired property or joint family property - Where occupancy rights of tenanted lands grantedby Land Tribunal in favour of karta for benefit of whole joint family, it is joint family property which may be partitionedamong members of joint family, (2011) 9 SCC 451-EThe Practical Lawyerhttp://www.supremecourtcases.com Eastern Book Company Generated: Saturday, November 19, 2011

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Judgments (Family & Personal )

Poonam and others vs Harish Kumar and another  [SUPREME COURT OF INDIA, 03 Nov 2011]Family & Personal - Practice & Procedure - Land & Property - Appeal before First Appellate Court - Condonation of delay - Appellant (sisters of 1st respondent) filed suit for permanent injunction against 1st respondent from interfering with their peaceful possession and creating any third party rights in the suit properties - 1st respondent contended that the suit properties were not ancestral property but were self-acquired properties of predecessor-in-interest - 1st respondent further contended that he was the absolute owner of the suit properties by virtue of a registered Will executed by the predecessor-in-interest - Trial Court dismissed the suit - Appellant appealed to First Appellate Court with a delay condonation petition - First Appellate Court dismissed delay condonation petition on the ground that the delay was not bona-fide and no reasonable cause had been made out - Appellants filed revision before the HC - HC dismissed revision - Whether the HC was right in dismissing the revision of appellants - Held, it was clear that of all the three ladies, who were the appellants, one of them was pursuing the case and she fell sick -Therefore, she was not in a position to pursue the legal remedy with due diligence as a result of which the appeal was filed with a delay of 63 days - Delay of 63 days was not a delay for a long period and there had been some explanation for the delay - HC should have, before passing the impugned judgment, considered the explanation for the delay along with the facts of the case, the position of the parties, the nature of the litigation and the period of delay - HC should also have considered that it had been settled by a catena of cases that, unless the delay was gross, an explanation for the same should be liberally construed - HC was not able to consider all these relevant facts in their correct perspective before passing the impugned order - Hence, impugned HC order was set aside and delay was condoned - Appeal allowed.

Marabasappa (D) by LRs. and others vs Ningappa (D) by LRs. and others  [SUPREME COURT OF INDIA, 08 Sep 2011]

Thota Venkateswarlu vs State of Andhra Pradesh Tr. Princl. Sec. and another  [SUPREME COURT OF INDIA, 02 Sep 2011]Family & Personal - Practice & Procedure - Code of Criminal

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Procedure, 1973, ss. 188 and 482 - Dowry Prohibition Act, 1961. ss. 3 and 4 - Indian Penal Code, 1860, ss. 498A and 506 - Petitioner was married to respondent no. 2 as per Hindu traditions and customs in India - Petitioner left India for Botswana without taking respondent no. 2 along with him and when respondent no. 2 joined him in Botswana, he ill-treated her and made various demands including a demand for additional dowry of Rs. 5 lakhs - Respondent no. 2 addressed a complaint to the Superintendent of Police, District, Andhra Pradesh from Botswana and the same was registered u/ss. 498-A and 506 of IPC together with ss. 3 and 4 of Act, 1986 - Upon investigation into the complaint filed by the respondent no.2, the Inspector of Police, filed a charge-sheet in the Court of the Additional Munsif Magistrate against the petitioner - Magistrate took cognizance of the said case and ordered issuance of summons against the petitioner - Petitioner made a prayer before HC for quashing the proceedings u/s. 482 of CrPC - HC dismissed said petition filed by the petitioner - Petitioner filed petition against said order submitting that offences arising out of the same transaction, some of which were committed within India and some outside India, such offences could not be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to s. 188 CrPC - Whether in respect of a series of offences arising out of the same transaction, some of which were committed within India and some outside India, such offences could be tried together, without the previous sanction of the Central Government, as envisaged in the proviso to s. 188 CrPC? - Held, upto the stage of taking cognizance, no previous sanction would be required from the Central Government in terms of the proviso to s. 188 CrPC - However, the trial cannot proceed beyond the cognizance stage without the previous sanction of the Central Government - The Magistrate was, therefore, free to proceed against the accused in respect of offences having been committed in India and to complete the trial and pass judgment therein, without being inhibited by the other alleged offences for which sanction would be required - Moreover, provisions of the IPC have been extended to offences committed by any citizen of India in any place within and beyond India by virtue of s. 4 thereof - Accordingly, offences committed in Botswana by an Indian citizen would also be amenable to the provisions of the IPC, subject to the limitation imposed under the proviso to s. 188 CrPC - Hence, no reason to interfere with the HC's decision to reject the petitioner's prayer for quashing of the proceedings - The Magistrate may proceed with the trial relating to the offences alleged to have been committed in India - However, in respect of offences alleged to have been committed outside India, the Magistrate shall not proceed with the trial without the sanction of the Central Government as envisaged in the proviso to s. 188 CrPC - Petition disposed of.

Pyla Mutyalamma @ Satyavathi vs Pyla Suri Demudu and another  [SUPREME COURT OF INDIA, 09 Aug 2011]Family & Personal - Practice & Procedure - Code of Criminal Procedure, 1973, s. 125 - Maintenance - Entitlement - Appellant wife filed an application for maintenance against respondent husband - Respondent denied the existence of spouse relationship between the parties - Trial Court held that appellant was the wife of respondent and the respondent was directed to pay maintenance - Respondent challenged the Trial Court order before HC - Single Judge there was no valid marriage between the respondent and the appellant, as an earlier marriage between the appellant and one another lady was subsisting and as the marriage with the appellant was performed without repudiation of

the earlier marriage, the subsequent marriage was not a valid one and hence no maintenance could be paid to the appellant - Whether the appellant was entitled to maintenance u/s. 125 CrPC - Held, in revision against the maintenance order passed in proceedings u/s. 125, CrPC., the revisional court had no power to re-assess evidence and substitute its own findings - Under revisional jurisdiction, the questions whether the applicant was a married wife, the children were legitimate/illegitimate, being pre-eminently questions of fact, should not be reopened and the revisional court should not substitute its own views - HC, therefore, was not required in revision to interfere with the positive finding in favour of the marriage and patronage of a child but where finding was a negative one, the HC would entertain the revision, re-evaluate the evidence and come to a conclusion whether the findings or conclusions reached by the Magistrate were legally sustainable or not as negative finding had evil consequences on the life of both child and the woman - In the instant case, appellant had succeeded in proving that she was the legally married wife of the respondent with three children - It had further been proved that the respondent-husband started deserting the appellant-wife after almost 25 years of marriage and in order to avert the claim of maintenance, a story of previous marriage was set up for which he failed to furnish any proof much less clear proof - Thus, it was not open for the HC under its revisional jurisdiction to set aside the finding of the Trial Court and absolve the respondent from paying the maintenance to the appellant-wife - Appeal allowed.

Umerkhan vs Bismillabi @ Babulal Shaikh and others  [SUPREME COURT OF INDIA, 28 Jul 2011]Family & Personal - Practice & Procedure - Code of Civil Procedure, 1908, ss. 96, 100 - Adjudication of second appeal by HC - Failure to frame substantial question of law - Effect - Plaintiff filed suit for partition against defendants - Defendant contended that he acquired the title of suit property by adverse possession - Trial Court rejected defendant's claim and decreed the suit for partition - Defendant appealed to First Appellate Court - First Appellate Court reversed the Trial Court decree, however, in second appeal, HC restored the Trial Court decree for partition - Whether the HC was right in adjudicating the second appeal without formulating substantial question of law - Held, jurisdiction of the HC in hearing a second appeal was founded on the formulation of a substantial question of law - Judgment of the HC was rendered patently illegal, if a second appeal was heard and judgment and decree appealed against was reversed without formulating a substantial question of law - Second appellate jurisdiction of the HC u/s. 100 was not akin to the appellate jurisdiction u/s. 96 of the Code; it was restricted to such substantial question or questions of law that would arise from the judgment and decree appealed against - As a matter of law, a second appeal was entertainable by the HC only upon its satisfaction that a substantial question of law was involved in the matter and its formulation thereof - S. 100 of the Code provided that the second appeal should be heard on the question so formulated - It was, however, open to the HC to reframe substantial question of law or frame substantial question of law afresh or hold that no substantial question of law was involved at the time of hearing the second appeal but reversal of the judgment and decree passed in appeal by a court subordinate to it in exercise of jurisdiction u/s. 100 of the Code was impermissible without formulating substantial question of law and a decision on such question - As per the constraints of s. 100 of the Code and the mandate of the law contained in s. 101 that

no second appeal should lie except on the ground mentioned in s. 100, yet it appeared that the fundamental legal position concerning jurisdiction of the HC in second appeal was ignored and overlooked time and again - Instant appeal was one of such matters where HC interfered with the judgment and decree of the First Appellate Court in total disregard of the settled legal position - Hence, impugned judgment of the HC was set aside and the second appeal was restored to the file of HC for fresh consideration - Appeal allowed.

Vinny Parmvir Parmar vs Parmvir Parmar  [SUPREME COURT OF INDIA, 20 Jul 2011]Family & Personal - Hindu Marriage Act, 1955, s. 25 - Alimony - Enhancement of - Entitlement - Appellant and respondent dissolved their marriage by mutual consent - Family Court fixed the amount of permanent alimony of Rs. 20,000/- per month and that was confirmed by the HC - Appellant/wife, being dissatisfied with the amount of alimony fixed, filed the instant appeal seeking for enhancement - Whether the appellant/wife was entitled to the enhanced amount of alimony - Held, direction for payment of maintenance at the rate of Rs. 20,000/- per month to the appellant-wife was inadequate - It was relevant to point out that the status of the appellant before her marriage was also one of the relevant factors for determining the amount of maintenance - It was not in dispute that before her marriage with the respondent, she was working as an Air Hostess in an airlines and after marriage she resigned from the said post - Considering the conditions prescribed in s. 25 of the Act relating to claim of permanent alimony/maintenance and the fact that the appellant was not permanently employed as on date and residing with her sister at Mumbai, taking note of the respondent's income from salary as Sr. Commander in Air India, other properties standing in his name, age being 42 years, future employment prospects and also considering the fact that the respondent re-married, having a child and also to look after his parents, the ends of justice would be met by fixing maintenance at the rate of Rs.40,000/- per month instead of Rs.20,000/- per month as fixed by the Family Court and affirmed by the HC - Amount of alimony should be payable from the date of her application and continue to pay in terms of s. 25 of the Act - Appeals allowed.

Pallavi Bhardwah vs Pratap Chauhan  [SUPREME COURT OF INDIA, 04 Jul 2011]Family & Personal - Restitution of conjugal rights - Failure to produce evidence of marriage - Respondent filed suit for restitution of conjugal rights against appellant - Appellant denied the existence of marriage between the parties - Family Court dismissed respondent's suit since there was no evidence of marriage - Respondent filed appeal before the HC - HC referred the matter for reconciliation - Whether the impugned order of HC was proper - Held, HC noted that the appellant girl had categorically denied the existence of marriage and the existence of joint account in a bank - HC had not recorded anywhere about the validity of the marriage - Even then the HC strangely enough explored the possibility of a settlement between the parties - HC without coming to any finding about the validity of marriage and after recording that the validity of marriage was always denied by the appellant gave certain directions which were wholly inconsistent with the facts of the case - Since no marriage had been established, directions given by the HC were wholly inappropriate - Hence, impugned HC order was set aside and Family

Court order was restored - Appeal allowed.

Rajinder Sharma vs Arpana Sharma  [SUPREME COURT OF INDIA, 04 Jul 2011]Family & Personal - Practice & Procedure - Hindu Marriage Act, 1955, s. 12 - Code of Civil Procedure, 1907, O. 41 r. 27 - Order of remand - Justifiability - A petition u/s. 12 of the Hindu Marriage Act for annulment of the marriage was filed by the appellant contending that respondent had requested him to perform a mock marriage with her in order to enable her to avoid the predicament of marrying a boy who had been selected by her parents and who was not of her liking - Trial Court allowed the appellant's petition for annulment of marriage - Respondent filed appeal before the HC and along with that she filed an application for adducing additional evidence under O. 41 r. 27 of CPC - HC remitted the matter to the Trial Court and directed the Trial Court to allow the application of the respondent for adducing additional evidence by giving corresponding right to the appellant to rebut that evidence and also directed the Trial Court to decide the matter afresh - Whether the order of remand by HC was sustainable - Held, most of the documents which were sought to be adduced by way of adducing evidence were on record - In that view of the matter, the order to remit the matter to the Trial Court was not warranted - HC, being the first appellate Court, was a Court of both fact and law, therefore, it would be in the interest of justice for the HC to decide the controversy in accordance with law - In the facts of the case the order of remand would merely prolong the proceedings between the parties - Hence impugned HC order was set aside and requested the HC to decide the appeals in accordance with law and as early as possible - Appeals disposed of.

Ruchi Majoo vs Sanjeev Majoo  [SUPREME COURT OF INDIA, 13 May 2011]Family & Personal - Constitution of India, 1950, art. 227 - Custody of child - Legal proceedings were initiated by the parties for the custody of their child, aged 11 years born in America hence a citizen of that country by birth - Father filed appeal, before the American Court seeking divorce from the wife and also custody of child - Wife also filed petition in a District Court at Delhi wherein interim custody of the minor was granted to her - Aggrieved by the said order the father filed a petition u/art. 227 of the Constitution before the HC of Delhi - By the order impugned HC allowed that petition, set aside the order passed by the District Court and dismissed the custody case filed by the mother on the ground that the Court at Delhi had no jurisdiction to entertain the same as the minor was not ordinarily residing at Delhi - HC further held that all issues relating to the custody of child ought to be agitated and decided by the Court in America because that Court had already passed an order to that effect in favour of the father and also because all the three parties, the parents of the minor and the minor himself were American citizens - (A) Whether HC was justified in dismissing the petition for custody of the minor on the ground that the court at Delhi had no jurisdiction to entertain the same? - Held, as per the facts of the case, minor was ordinarily residing with his mother and was admitted to a school, where he was studying for the past nearly three years - Hence, Court at Delhi was in the facts and circumstances of the case competent to entertain the application filed by the father - (B) Whether the HC was right in declining exercise of jurisdiction on the principle of comity of Courts? - Held, HC was not right

firstly because interest and welfare of the minor being paramount, a competent court in this country was entitled and duty bound to examine the matter independently, taking the foreign judgment, if any, only as an input for its final adjudication - Secondly, the father's case that the minor was removed from the jurisdiction of the American Courts in contravention of the orders passed by them, was not factually correct - Thirdly, because the minor was living in India and pursuing his studies in a reputed school in Delhi for nearly three years now - Fourthly, because even the father did not complaint the wife getting custody of the minor, provided she returns to America with the minor - Hence, interest of the minor would be better served if he continued in the custody of his mother especially when the father had contracted a second marriage and did not appear to be keen for having actual custody of the minor - Appeals disposed of.

Flg. Officer Rajiv Gakhar vs Bhavana @ Sahar Wasif  [SUPREME COURT OF INDIA, 11 May 2011]Family & Personal - Hindu Marriage Act, 1955, s. 5 and 12 - Divorce - Fraud - Appellant (Husband) filed suit u/ss. 5 and 12 of the Act seeking dissolution of marriage solemnized with the respondent (Wife) at temple alleging that the respondent by using emotional coercion, impersonation, misrepresentations, fraud and cheating tricked the appellant to marry her - Appellant also alleged that respondent gave a written affidavit to the temple claiming that she was a Hindu, a spinster and was not married before, however, she was converted to Islam and was married to a muslim and she had 2 children out of her previous wedlock - Respondent contended that appellant was aware of all the details and before marriage with the appellant, the respondent had undergone Shudhikaran Ceremonies and she was deemed to have become a Hindu after such ceremonies - Trial Court declared the marriage between the parties to the petition a nullity and also ordered the appellant to pay Rs. 2,000/- per month as permanent alimony to the respondent - Single Judge allowed the appeal filed against said order and set the decree passed by the trial court - Hence, the instant appeal - Whether Single Judge rightly allowed appeal filed by the respondent against the order of the trial court? - Held, evidences of RW1, RW2, RW4 and RW6 clearly showed that the respondent established that before the marriage with the appellant she became a full-fledged Hindu by performing Shudhikaran ceremonies in the manner and being followed by Hindu custom and all these material facts were known to the appellant at the time of the marriage - Hence, on the date of marriage with the appellant, respondent was a Hindu and the same was permissible u/s. 5 of the Act - Impugned order of the HC upheld - Appeal dismissed.

Prema vs Nanje Gowda and others  [SUPREME COURT OF INDIA, 10 May 2011]Family & Personal - Civil Procedure - Code of Civil Procedure, 1908, ss. 151, 152 and 153 - Hindu Succession Act, 1956, s. 6A - Hindu Succession (Karnataka Amendment) Act, 1990 - Suit for partition and separate possession of his share filed by respondent No.1 was decreed - Appeal filed thereagainst was dismissed - Respondent No.1 instituted final decree proceedings - Appellant filed an application u/ss. 151, 152 and 153 of the CPC for amendment of the preliminary decree and for grant of a declaration that in terms of s. 6A inserted in the Act by the State Amendment, she was entitled to 2/7th share in the suit property -

Application was dismissed by Trial Court on the ground that s. 6A of the Act was not retrospective - Whether the appellant, who failed in her challenge to the preliminary decree passed in a suit for partition filed by respondent No.1 could seek enhancement of her share in the joint family property in the final decree proceedings in terms of s. 6A inserted in the Act by State Amendment, which received Presidential assent on 28.7.1994 and was published in the Karnataka Gazette dated 30.7.1994? - Held, in the instant case, preliminary decree was passed on 11.8.1992 - First appeal was dismissed on 20.3.1998 and the second appeal was dismissed on 1.10.1999 - By the preliminary decree, shares of the parties were determined but the actual partition/division had not taken place - Therefore, the proceedings of the suit instituted by respondent No.1 could not be treated to have become final so far as the actual partition of the joint family properties was concerned, it was open to the appellant to claim enhancement of her share in the joint family properties because she had not married till the enforcement of the Karnataka Act - Trial Court and Single Judge were clearly in error when they held that the appellant was not entitled to the benefit of the Karnataka Act because she had not filed an application for enforcing the right accruing to her u/s. 6A during the pendency of the first and the second appeals or that she had not challenged the preliminary decree - Appeal allowed.

Hafeeza Bibi and others vs Shaikh Farid (Dead) by LRs. and others  [SUPREME COURT OF INDIA, 05 May 2011]Land & Property - Family & Personal - Practice & Procedure - Registration Act, 1908, s. 17 - Mohammedan Law - Unregistered gift - Validity - Plaintiffs filed suit for partition with respect to suit properties left intestate by predecessor-in-title - 2nd defendant contended that suit property was gifted to him by predecessor-in-title by virtue of a gift deed - Trial Court dismissed suit holding that plaintiffs were not entitled to the shares claimed in the plaint - Plaintiffs filed appeal contending that gift in question being in writing was required to be registered compulsorily and stamped and in absence thereof, the gift deed could not confer any title upon 2nd defendant - HC allowed the appeal and remitted the matter to Trial Court for passing preliminary decree - Whether HC was right in its view that the unregistered gift deed was not a valid gift and conveyed no title to the 2nd defendant - Held, three essentials of a gift under Mohammadan Law were; (i) declaration of the gift by the donor; (ii) acceptance of the gift by the donee; and (iii) delivery of possession - Gift was made by predecessor-in-title by a written deed in favour of his son 2nd defendant in respect of the suit properties - Gift was based on love and affection for 2nd defendant as after the death of donor's wife, he had been looking after and helping the donor - Because of a declaration was reduced to writing, it was not required to be registered compulsorily - Acceptance of the gift by 2nd defendant was also evidenced as he signed the deed - Further, 2nd defendant was residing in the suit property and, thus, was in physical possession of the property with the donee - Trial Court on consideration of the entire evidence on record had recorded a categorical finding that donor, executed the gift deed in favour of donee, the donee accepted the gift and the donor handed over the properties covered by the gift deed to the donee - Trial Court further held that all the three essentials of a valid gift under the Mohammadan Law were satisfied - Gift deed in question was a form of declaration by the donor and not an instrument of gift as contemplated u/s. 17 of the Act - As all the three essential requisites were satisfied by the gift deed, the gift in favour of 2nd defendant became

complete and irrevocable - Impugned HC order was therefore set aside - Appeal allowed.

Hitesh Bhatnagar vs Deepa Bhatnagar  [SUPREME COURT OF INDIA, 18 Apr 2011]Family & Personal - Hindu Marriage Act, 1955, s. 13B - Decree of divorce by mutual consent - Withdrawal of consent - Effect thereof - Appellant-husband and the respondent-wife filed a petition u/s. 13B of the Act for dissolution of the marriage by grant of a decree of divorce by mutual consent - However, before the stage of second motion and passing of the decree of divorce, the respondent-wife withdrew her consent, and in view of this, the petition was dismissed, though the appellant insisted for passing of the decree - Appeal filed thereagainst was dismissed by HC - Hence, instant appeal - (A) Whether the consent once given in a petition for divorce by mutual consent could be subsequently withdrawn by one of the parties after the expiry of 18 months from the date of the filing of the petition in accordance with s. 13B(1) of the Act? - Held, one of the parties may withdraw their consent at any time before the passing of the decree - (B) Whether the Court could grant a decree of divorce by mutual consent when the consent had been withdrawn by one of the parties, and if so, under what circumstances? - Appellant-husband contended that the Additional District Judge was bound to grant divorce if the consent was not withdrawn within a period of 18 months in view of the language employed in s. 13B(2) of the Act - Held, most important requirement for a grant of a divorce by mutual consent was free consent of both the parties - Hence, unless there was a complete agreement between husband and wife for the dissolution of the marriage and unless the Court was completely satisfied, it could not grant a decree for divorce by mutual consent - Further, if the second motion was not made within the period of 18 months, then the Court was not bound to pass a decree of divorce by mutual consent - In the instant case, second motion was never made by both the parties as was a mandatory requirement of the law - Hence, no Court could pass a decree of divorce in the absence of that - Non-withdrawal of consent before the expiry of the said eighteen months had no bearing - Further, respondent-wife stated that she wanted marriage to continue, especially in order to secure the future of their minor daughter, though her appellant-husband wanted it to end - In the facts and circumstances of the case, it would be travesty of justice to dissolve the marriage as having broken down - Appeal dismissed.

Sunita Kumari Kashyap vs State of Bihar and another  [SUPREME COURT OF INDIA, 11 Apr 2011]Family & Personal - Criminal - Constitution - Code of Criminal Procedure, 1973, ss. 177, 178 and 179 - Indian Penal Code, 1860, ss. 498A and 406 r/w. s. 34 - Dowry Prohibition Act, 1961, ss. 3 and 4 - Jurisdiction - Appellant (Wife) got married to respondent no. 2 at Gaya and moved to her matrimonial home at Ranchi - Immediately after the marriage, respondents (appellant's husband and his relatives) started harassing and torturing appellant for bringing less dowry - Appellant lodged FIR u/ss. 498A and 406 r/w. s. 34 of IPC and ss. 3 and 4 of 1961 Act at Gaya - The Chief Judicial Magistrate took cognizance of offences punishable u/ss. 498A and 406 r/w. s. 34 of IPC and ss. 3 and 4 of 1961 Act against respondents - On appeal, HC held that the proceedings at Gaya were not maintainable for lack of jurisdiction and quashed the entire

proceedings at Gaya with liberty to the appellant to file the same in appropriate Court - Hence, the instant appeal - Whether criminal proceedings initiated by the appellant at Gaya against her husband and his relatives were maintainable or not for lack of jurisdiction? - Held, in view of ss. 178 and 179 of the Code, the impugned offence was a continuing one and the episode at Gaya was only a consequence of continuing offence of harassment of ill- treatment meted out to the appellant - Hence, the Magistrate at Gaya had jurisdiction to proceed with the criminal case instituted therein - Impugned order of the HC holding that the proceedings at Gaya were not maintainable due to lack of jurisdiction cannot be sustained, hence, set aside - Appeals allowed.

Siddamurthy Jayarami Reddy (D) by LRs. vs Godi Jaya Rami Reddy and another  [SUPREME COURT OF INDIA, 01 Apr 2011]Land & Property - Family & Personal- Practice & Procedure - Hindu Succession Act, 1956 - Suit for partition - Claim of share through estranged executor - Entitlement - Plaintiffs (grand-sons of testator), filed suit for partition claiming 1/3rd share in joint family property by virtue of Will executed by testator - Defendant coparceners contended that plaintiffs' father left family and abandoned his right in property, therefore, plaintiffs who set up claim through their father, could not be entitled to the same - Trial Court negated plea of adverse possession set up by defendants and passed a preliminary decree for partition in favour of plaintiffs with regard to their 1/3rd share - HC, in defendants' appeal, reversed Trial Court order and dismissed plaintiff's claim - Whether plaintiffs' father entitled to any legacy by virtue of defeasance clause under Will in question - Held, plaintiffs' father left testator's family and went to nearby village where he married for the second time - Plaintiffs' father neither continued as a guardian of testator's minor granddaughter nor looked after testator's family - Plaintiffs' father took no care or interest in affairs of family or properties of testator and thereby failed to discharge his duties as executor - In view of predominant desire that his granddaughter should have his properties and that his properties did not go out of family, testator desired that his daughter adopted a son with consent of her husband (plaintiff's father) and his granddaughter marry the adopted boy - Conditional legacy to plaintiffs' father (to extent of 1/3rd share jointly with his wife) was not intended to be given to him if he happened to be instrumental in defeating testator's wish in not agreeing to adoption of a son by his wife (testator's daughter) - Such an intention might not have been declared by testator in express terms but necessary inference to that effect could safely be drawn by reading Will as a whole - In circumstances, legacy to extent of 1/3rd share should not be held to have ever vested in plaintiffs' father jointly with his wife (testator's daughter) as it was he who defeated adoption of a son by his wife - As a matter of fact by his conduct, plaintiff's father rendered himself disentitled to any legacy - Further, plaintiff's father during his life time, although he survived for about 19 years after death of testator, never claimed any legacy under subject Will - No legacy, therefore, came to be vested in plaintiff's father and he did not become entitle to any interest in estate of testator and, therefore, plaintiffs did not acquire any right, title or interest in properties of testator - Appeal dismissed.

Revanasiddappa and another vs Mallikarjun and others 

[SUPREME COURT OF INDIA, 31 Mar 2011]Land & Property - Family & Personal - Hindu Marriage Act, 1955, s. 16(3) - Whether illegitimate children were entitled to a share in the coparcenary property or whether their share was limited only to the self-acquired property of their parents u/s. 16(3) of the Hindu Marriage Act? - Held, as per s. 16(3) of the Hindu Marriage Act a child of a void or voidable marriage could only claim rights to the property of his parents, and no one else - However, legislature had used the word 'property' and had not qualified it with either self-acquired property or ancestral property - S. 16 postulated that such children would not be entitled to any rights in the property of any person who was not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment - Benefit given under s. 16 was available only in cases where there was a marriage but such marriage was void or voidable in view of the provisions of the Act - Further, in the case of joint family property such children would be entitled only to a share in their parents' property but they could not claim it on their own right - Matter referred to Larger Bench.

Prema and another vs Deva Rao and others  [SUPREME COURT OF INDIA, 03 Mar 2011]Family & Personal - Land & Property - Suit for partition - Plaintiff filed a suit claiming 1/6th share in suit property - Trial Court decreed suit holding that plaintiff was entitled to only 1/18th share in suit property - HC, in appeal, held that defendant was having occupancy right by virtue of a Land Tribunal order in respect of suit property, therefore, plaintiff had no right of whatsoever type in suit property - Hence instant appeal by plaintiff - Whether plaintiff was entitled to any right in suit property - Held, HC rightly set aside decree passed by Trial Court - By virtue of order passed by Land Tribunal, right of defendant had been recognised - Land Tribunal had arrived at a finding that as on relevant date defendant was a tenant in respect of land in question and, therefore, he was declared to be a tenant and he got right in respect of suit land - Land Tribunal order had already become final and, therefore, it would not be proper to take a view that land in question was not an agricultural land at time when right of defendant was recognised by Land Tribunal - Impugned HC order was upheld - Appeal dismissed.

Parimal vs Veena @ Bharti  [SUPREME COURT OF INDIA, 08 Feb 2011]Family & Personal - Practice & Procedure - Code of Civil Procedure, 1908, O. 9 r. 13 - Code of Criminal Procedure, 1973, s. 125 - Indian Limitation Act, 1963, s. 5 - The respondent, after the expiry of 4 years of the passing of the ex-parte decree of divorce, moved an application for setting aside the same basically on the grounds that ex-parte decree had been obtained by fraud and collusion with the postman etc., to get the report of refusal and on the ground that she had not been served notice even by substituted service and also on the ground that even subsequent to obtaining decree of divorce the appellant did not disclose the fact of grant of divorce to her during the proceedings of maintenance u/s. 125 of the CrPC - Said application was accompanied by an application u/s. 5 of 1963 Act, for condonation of delay - The trial Court examined the issues involved in the application at length and came to the conclusion that respondent miserably failed to establish the grounds taken by her in the application to set aside the ex-parte decree and dismissed the same - HC allowed appeal filed against said order - Hence, the instant appeal -

Whether HC rightly allowed appeal filed by respondent against the order of the tribunal? - Held, an ex-parte decree against a respondent has to be set aside if the party satisfies the Court that summons had not been duly served or he was prevented by sufficient cause from appearing when the suit was called on for hearing - In the instant case, the HC did not deal with the issue of service of summons or as to whether there was 'sufficient cause' for the respondent not to appear before the court at all, nor did it set aside the aforesaid findings recorded by the trial Court - Hence, the HC had not dealt with these issues in correct perspective - Moreover, it was nobody's case that respondent made any attempt to establish that there had been a fraud or collusion between the appellant and the postman - Impugned order of the HC was set aside - Appeal allowed.

(1) Ghisalal; (2) Dhapubai (Dead) Widow of Gopalji through L.Rs. vs (1) Dhapubai (Dead) by L.Rs. and others; (2) Ghisalal and others  [SUPREME COURT OF INDIA, 12 Jan 2011]Family & Personal - Land & Property - Hindu Adoptions and Maintenance Act, 1956, s. 7 - Adoption without the consent of wife - Validity - 'X' filed a suit submitting that 'Y' had taken him in adoption and the deed of adoption was executed and got registered and that 'Z' had consented to the adoption - 'X' challenged the gift deed executed by 'Y' in favour of 'Z' and sale deed executed by the latter in favour of 'A' in respect of one parcel of land - 'X' also pleaded that said gift deed was invalid, inoperative and ineffective and did not affect his right to get share in the ancestral properties - 'Z' in her written statement, not only disputed the adoption of 'X' by 'Y', but categorically averred that she had not consented to the adoption - The trial Court held that 'X' was validly adopted son of 'Y' and the consent of 'Z' can be presumed from her presence in the adoption ceremonies - Trial Court further held that the gift deed executed by 'Y' in favour of 'Z' and sale deed executed by her in favour of 'A' were invalid - On appeal, lower appellate court upheld the order of the trial court - However, Lower appellate court also held that 'X' is entitled to 1/3rd share in the suit properties except the land covered by the gift deed - Single Judge confirmed the finding recorded by the two Courts on the legality of 'X's adoption by 'Y' - Single Judge also agreed with the lower appellate Court that 'X' was not entitled to challenge gift deed but held that Will executed by 'Y' in favour of 'Z' cannot be treated to have been validly executed by 'Y' - Hence, the present appeal - Whether the trial Court and the lower appellate Court had rightly held that 'X' was validly adopted by 'Y' and he became coparcener in the family of adoptive father? - Adoption without wife's consent is invalid - Held, all the courts below held that the consent of 'Z' can be presumed because she was present in the ceremonies of adoption - Unfortunately, all the Courts completely ignored that presence of 'Z' in the ceremonies of adoption was only as a mute spectator and not as an active participant - Neither 'X' nor any of the witnesses examined by him stated that before taking 'X' in adoption, 'Y' had consulted 'Z' or taken her in confidence and the latter had given her consent or agreed to the adoption of 'X' or that she had taken prominent part in the adoption ceremonies - Hence, by no stretch of imagination, this could be equated with her active participation in the adoption ceremonies so as to enable the Courts to draw an inference that she had given consent for the adoption of 'X' - Hence, the concurrent finding recorded by the trial Court and the lower appellate Court, which was approved by the Single Judge that 'Y' had adopted 'X' with the

consent of 'Z' is perverse inasmuch as the same is based on unfounded assumptions and pure conjectures - As a corollary, it is held that the suit filed by 'X' for grant of a decree that he is entitled to one half share in the properties of 'Y' was not maintainable and the findings recorded by the trial Court, the lower appellate Court and/or the HC liable to be set aside - Appeal allowed.

Man Singh (D) By LRs. vs Ram Kala (D) By LRs. and others  [SUPREME COURT OF INDIA, 09 Dec 2010]Family & Personal - Land & Property - Hindu Succession Act, 1956, s. 6 - Joint family property - Devolution by coparcener before partition - Legality - Predecessor-in-title died intestate leaving behind the suit property - Appellant, being the son of the second wife of the predecessor-in-title, filed a suit against his mother claiming the suit property by virtue of a family settlement allegedly entered into between predecessor-in-title and his mother - Trial Court decreed the suit in favour of appellant - 1st respondent, being the son of the first wife of the predecessor-in-title, filed a suit against the appellant for declaring the decree in favour of appellant as null and void - Trial Court decreed the suit in favour of 1st respondent and declared that the earlier decree in favour of the appellant was null and void - Appellant filed appeal - First Appellate Court partly allowed the appeal holding that appellant had the right to the extent of share of his mother, however, earlier decree in favour of appellant would not affect the rights of the 1st respondent - 1st respondent filed second appeal - HC allowed 1st respondent's appeal, however, HC also affirmed the share of appellant's mother - Hence the present appeal - Whether appellant is entitled to have any share in the suit property - Held, conclusion arrived at by the courts below that the earlier decree in favour of appellant was not binding on 1st respondent was right and proper and called for no interference - In the earlier suit, appellant did not have any case that his or his mother's shares were determined by agreement or otherwise - Till disruption of joint family status takes place, neither coparcener nor the other heirs entitled to share in the joint family property can claim with certainty the exact share in that property - In any case, determination of the shares in the absence of the three daughters of predecessor-in-title, who were also Class I heirs in Schedule appended to the 1956 Act could not have been done - Therefore, impugned HC order is confirmed to the extent that it has been held that the earlier decree in favour of appellant was not binding on the 1st respondent, however, determination of shares of appellant's mother among other heirs is set aside - Appeal disposed of.

Dr. Ashish Ranjan vs Dr. Anupama Tandon and another  [SUPREME COURT OF INDIA, 30 Nov 2010]Practice & Procedure - Family & Personal - Constitution of India, 1950 - Contempt petition - Petitioner (Husband) filed a contempt petition against respondent no. 1 (his divorced wife) alleging that the consent order dt. 3.5.2008 passed by the Lok Adalat held by SC has willfully and deliberately been violated by the respondent no.1 - Petitioner submitted that he had been given the right to visit the child, but respondent no. 1 denied him access, thus defying the SC order - Respondent no. 1 contended that as the child himself is not inclined to talk to the petitioner, he cannot be forced to have any communication/meeting with the petitioner - Respondent no. 1 also contended that the petitioner has filed a writ petition before this Court seeking the relief, which has been sought

in this petition, and the same stood dismissed vide order dt. 29.9.2009 - Therefore, this petition itself is not maintainable and, thus, is liable to be dismissed - Whether contempt petition filed by the petitioner could be allowed? - Held, in the facts and circumstances of the case, inference can be drawn that the rights of visitation given to the petitioner by SC vide order dt. 3.5.2008 stood completely frustrated and the respondents have ensured that the petitioner may not reach his son and all attempts made by the petitioner in this regard stood futile - The mind of the child has been influenced to such an extent that he has no affection/respect for the petitioner - Child has been instructed not to pick up the phone, so that even by chance he may not hear the voice of the petitioner or the petitioner's parents - Respondents have deliberately and willingly violated the terms of the consent order and are guilty of committing the contempt of this court - However, imposing any punishment on the respondent no. 1 would not serve any purpose, nor it would serve in a better way to the welfare of the child - In such a fact-situation, where circumstances have substantially changed subsequent to the order dt. 3.5.2008, due to non- compliance of the terms of compromise order, the petitioner is fully justified seeking review/modification of the said order - Contempt petition disposed of giving liberty to the petitioner to approach the appropriate court/forum for seeking custody of the child or any other appropriate relief in this regard - Order accordingly.

Gopal Swaroop vs Krishna Murari Mangal and others  [SUPREME COURT OF INDIA, 25 Nov 2010]Family & Personal - Land & Property - Indian Succession Act, 1925, s. 63 - Will - Proof of - 1st respondent filed a suit for partition against Karta of the joint family property in question, however, Karta died during the pendency of the suit - Appellant claimed the share of the deceased Karta by virtue of a Will allegedly executed by the deceased Karta in favour of appellant - Trial Court held that the 1st respondent was entitled to 1/5th share of the joint family property and the appellant was entitled to the share of deceased Karta - Single Judge, in appeal, affirmed the findings of the Trial Court - 1st respondent preferred appeal before the DB - DB partly allowed the appeal holding that Will in question was not satisfactorily proved by the appellant, hence the share of deceased Karta would devolve upon by his legal heirs - Whether Will in question has been satisfactorily proved by the appellant - Held, deposition of attesting witness clearly proved that the testator had executed a Will in favour of the appellant and had signed in his presence - Trial Court and the HC concurrently held that the Will had been signed by the testator in the presence of the attesting witnesses - Therefore, first and the foremost requirement prescribed u/s. 63 of the 1925 Act is clearly satisfied - Signature of the testator appeared at the right hand bottom part of the Will and hence, placement of the signature on the document was appropriate and clearly suggestive of the fact that the document was intended to be given effect to as a Will - Further, attesting witness deposed that in clear and unambiguous terms that not only he but the other attesting witness to the Will was also present at the time the testator affixed his signature on the Will - Therefore, the requirement of attestation of the Will by two witnesses each of whom has seen the testator signing or affixing his mark has been satisfied in the present case - Further, requirement that the attesting witnesses sign the Will in the presence of the testator also stands firmly established - Hence DB fell in error in holding that the requirement of s. 63 of the 1925 Act had not been satisfied in the instant case - Impugned judgment of DB, therefore, is set

aside and order of Single Judge is restored - Appeal allowed.

Ram Chandra Bhagat vs State of Jharkhand  [SUPREME COURT OF INDIA, 24 Nov 2010]MARKANDEY KATJU, J.

Family & Personal - Indian Penal Code, 1860, s. 493 - Hindu Marriage Act, 1955, s. 7(1) - Cohabitation caused by a man deceitfully inducing a belief of lawful marriage - Complainant and appellant cohabited together for nine years and had two children - Complainant filed complaint u/s. 493 of IPC alleging that that the appellant had given her assurance to marry her and even entered into an agreement to that effect, however, it did not happened - Trial Court convicted appellant u/s. 493 of IPC - Conviction upheld by HC - Hence, present appeal - Whether conviction of appellant was correct? - Held, in the present case, there was no allegation that the appellant entered into a marriage with the complainant in accordance with s. 7(1) of the Hindu Marriage Act, rather the allegation was that he promised to marry her in future - There was also no allegation that the appellant deceived the complainant into believing that they were lawfully married - Hence, ingredients of s. 493 of IPC not satisfied - However, since there was difference of opinion matter be placed before Chief Justice of India - Order accordingly.

GYAN SUDHA MISRA, J.

Family & Personal - Indian Penal Code, 1860, s. 493 - Hindu Marriage Act, 1955 - Cohabitation caused by a man deceitfully inducing a belief of lawful marriage - Whether conviction of appellant was correct? - Held, three ingredients necessary to be established for bringing home the offence u/s. 493 IPC are: i) the accused practiced deception; ii) such deceit was to induce a woman (complainant) to believe that she was lawfully married to him; and iii) there was cohabitation or sexual intercourse as a result of the deception - S. 493 of IPC although emphasizes that the victim woman should be induced the belief that she is lawfully married to the accused, this Section also lays emphasis on deceit caused by the man who is not lawfully married to the victim and mere inducement of belief of a lawful marriage is sufficient to establish the guilt u/s. 493 of IPC - Further, s. 493 of IPC do not presuppose a marriage between the accused and the victim necessarily by following a ritual or marriage by customary ceremony - If the evidence on record indicate inducement of a belief in any manner in the woman which cannot possibly be enlisted but from which it can reasonably be inferred by ordinary prudence that she is a lawfully married wife of the man accused of an offence u/s. 493 of IPC, the same will have to be treated as sufficient material to bring home the guilt u/s. 493 of IPC - In the present case, there were sufficient documentary evidence to induce a belief to the complainant lady that she had been lawfully married to the appellant although they had not been married according to the rituals - Appellant thus had deceitfully induced the complainant to believe that she was lawfully married to him as he had executed an agreement for issuing marriage certificate and also filled up application form to submit before the Special Marriage Officer to give assurance to her - Since there was a difference of opinion, let the matter be placed before Chief Justice of India - Order accordingly.

Saygo Bai vs Chueeru Bajrangi  [SUPREME COURT OF INDIA, 19 Nov 2010]Family & Personal - Code of Criminal Procedure, 1973, s. 125 - Grant of maintenance - Entitlement to - Appellant along with her two minor children filed an application u/s. 125 of CrPC for claiming maintenance from her husband - It was stated that her husband after his second marriage was neglecting to maintain appellant and her two children - Respondent-husband claimed that the appellant left him without any reason and entered into his second marriage only after appellant refused to join him - Trial Court found that the respondent-husband was justified in getting married again since the appellant did not go to her husband for 4-5 years and, therefore, it could not be said that the respondent-husband neglected or avoided to maintain appellant and dismissed the application - Revision filed thereagainst was dismissed - Order upheld by HC - Hence, present appeal - (A) Whether Courts below erred in holding that since the appellant had left the house for 4-5 years, therefore, the respondent-husband was justified in getting married and that appellant was not justified in claiming the maintenance? - Held, it was an admitted position that the respondent-husband had a second wife - This specific admission in the examination-in-chief itself, there was no question of a finding that the appellant was not justified in claiming the maintenance - All the Courts have committed a very error of law in holding that since the appellant had left the house for 4-5 years, therefore, the respondent-husband was justified in getting married again - Further, the finding of Courts below that since the appellant had left the house without any reason, therefore, even if the second marriage had been contracted, the appellant would still not be entitled to the maintenance merely because she had left the matrimonial house earlier was completely erroneous - (B) Whether in view of fact that initially appellant desisted from joining the respondent-husband for 4-5 years she would always be dis-entitled to claim maintenance? - Held, in view of the admitted second marriage of the respondent-husband, the appellant would be entitled to claim maintenance and her earlier refusal to be with the respondent would be of no consequence whatsoever - (C) Appreciation of evidence by the Courts below - Held, SC do not go into the evidence where the Courts below have recorded concurrent findings of fact - However, in the present case, appreciation of evidence by the Courts below was totally perverse, faulty and unconscionable findings have been arrived at and therefore SC can appreciate the evidence - Maintenance granted - Appeal allowed.

Atluri Brahmanandam (D) Thr. Lrs. vs Anne Sai Bapuji  [SUPREME COURT OF INDIA, 18 Nov 2010]Land & Property - Family & Personal - Hindu Adoptions and Maintenance Act, 1956, s. 16 - Boy above 15 years of age - Adoption - Validity - Appellant's land was put into court auction pursuant to a money suit - Respondent's adopted father purchased the property in court auction - Appellant allegedly trespassed into the suit property and obtained wrongful possession thereof - Respondent's adopted father died intestate in the meantime - Respondent/plaintiff filed a suit for recovery of possession and mense profit - Trial Court decreed the suit in favor of respondent - HC affirmed the Trial Court order in appeal - Hence the present appeal by appellant/defendant - Appellant contended that respondent was not validly adopted by his father/auction purchaser as

per the law and customs - Whether respondent was validly adopted by his father since he was more than 15 years of age on the date of such alleged adoption - Held, respondent produced deed of adoption which was a registered document - Deed of adoption recited that the adoption was in accordance with the customs prevailing in respondent's community in the State - Appellant did not challenge the legality or validity of the deed in Trial Court - Recital in the deed stated that adoption beyond 15 years of age was permissible and recognized in respondent's community - Effect and the implication of s.16 of the Act is that if there is any document purporting to record an adoption made and is signed by the person giving as well the person taking the child in adoption is registered under any law for the time being in force and if it is produced in any Court, the Court would presume that the adoption has been made in compliance of the provisions of the Act unless and until it is disproved - Since the custom of adoption beyond 15 years existed in respondent's community and such adoption was also recorded in a registered deed of adoption, the Court has to presume that the adoption had been made in compliance with the provisions of the Act because appellant had utterly failed to challenge the said evidence and adoption - Further, SC, in Ujagar Singh v. Mst. Jeo, 1959 INDLAW SC 73, held that when a custom had been repeatedly recognized by Courts, it was blended into the law of land and proof of the same would become unnecessary u/s. 57 of Evidence Act, 1872 - HC recognized such a custom among respondent's community in the State of taking in adoption of a person even above the age of 15 years and had held the same to be legal and valid in its various decisions - Therefore, there is no infirmity in the findings of the Trial Court which were affirmed by the HC - Appeal dismissed.

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The joint Hindu family or Hindu undivided family (HUF) or a joint family is an extended family arrangement prevalent among Hindus in our country. The Hindu joint family consisting of generations living under the same roof. All the male members are blood relatives and all the women are either mothers, wives, unmarried daughters, or widowed relatives,all bound by the common sapinda relationship. The joint family status being the result of birth, possession of joint cord that knits the members of the family together is not property but the relationship. Ancestral property is the property, which a man inherits from any of his three immediate male ancestors, i.e., father, grandfather and great grandfather.

Earlier to the amendment, only male members had right over the joint family property, while the female members were denied the same.

The Hindu Succession (Amendment) Act, 2005, has given equal rights to male and female in the matters of inheritance as a result a daughter also acquires the status of coparcener. After the amendment in absence of any male member even a female member can become Kartha /

manager of HUF after 2005. The sale of the joint family property by one of the member is not legally valid.

Similarly, the member of the joint family can’t gift the joint family property and such gift would not be valid.

The purchaser who purchased undivided share of the property from a member of joint Hindu family will not get right over the same as the seller himself had no absolute right over the property. The Supreme Court in a recent judgment“Gajara Vishnu Gosavi VS Prakash Nanasahed Kamble and others” reiterated the same. The court declared that the purchaser of a coparcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. The purchaser utmost can be a co-sharer in common and joint possession, if the partition has not yet been affected. He has a right only to sue for partition of the property and ask for allotment of his share in the suit property. Coparcener is one who has equal portion with other of an inheritance.

Coparcener can be termed as the persons who acquire by birth, interest in joint family property. The test of coparcener is that coparcener enjoys right to enforce partition. Under the Mitaaakshara school of law each son by birth acquires an equal interest with his father in the ancestral property. This law is prevalent all over India except in West Bengal and Assam where Dayabhaga School of Law is prevalent.

The Supreme Court Ramdas Vs Sitabhai and others came to a conclusion that a purchaser of a coparcener’s undivided interest in the joint family property is not entitled to possession of what he had purchased. He has right only to sue for partition of the property and ask for allotment of his share in the suit property. The undivided share of a coparcener can be a subject matter of sale or transfer, but possession cannot be handed over to the vendee unless the property is partitioned by metes and bounds, either by the decree of partition suit or by settlement among the co-sharers

Introduction:The term property in common parlance indicates the economic status of a person. Any property is held by an individual to draw out benefit from it. Transfers are made by owners

themselves, ostensible owners and the co-owners or we can say joint owners. When two or more persons enjoy common ownership of a property, for example say in a coparcenary, the male members and now even daughters have a common and an equal interest in the ancestral property, any co-owner can transfer his own share in the property to a stranger or another co-owner. And that transferee steps in the shoes of the co-owner (transferor) and gets clothed with all his assets and liabilities. We can say that the transferee becomes the co-owner.Section 44 of the Transfer of Property Act, 1882, deals with transfers by one co-owner. It also deals with the rights of a transferee in this type of a transaction.

In my project I have dealt with the following topics-# Who is a co-owner# What are the rights and liabilities of a transferee under this section# Can a co-owner make a transfer without the consent of other co-owners# What is a dwelling house and undivided family for the purpose of this section.

I have also dealt with various case laws. For the purpose of better understanding I have divided the project in parts.EXPLANATION OF SECTION 44 TPA, 1882 ( With reference to Section 4 of the Partition Act, 1893)Section 44 says -

Transfer By One Co-Owner- Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, so far as is necessary to give effect to the transfer, the transferors right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

This section of Transfer of Property Act deals with rights and liabilities of a transferee from a co-owner, as to the enjoyment of the property transferred ( should be immovable for this section). The first part of the section merely incorporates the principle that a person who takes transfer from another, steps into the shoes of his transferor, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer. The second part of the provision provides an exception to the general rule stated in the first part and is based on convenience. It is designed to prevent an outsider from forcing his way into a dwelling house in which other members of the transferors family have a right to live. But the remedy is to claim partition. When we read the section there are some terms which we need to understand like-Who is a co-owner ?Legal Competency of a Co-owner to Transfer ?Rights and liabilities of a transferee from a Co-owner ?What is a dwelling house and Undivided family ?

Who Is A Co-Owner ?Ownership consists of innumerable number of claims, liberties, powers with regard to the thing owned. Ownership is of different kinds. There are absolute and limited, sole ownership, co-ownership, vested ownership, contingent ownership, corporeal, incorporeal. When a person owns a property in one time it is called sole ownership, but if the property is owned

by more than one person then it is called joint ownership. By means of partition one can have co-ownership changed into sole ownership.

The expression co-owner is wide enough to include all kinds of ownership such as joint tenancy, Tenancy in common, Coparcenary, membership of undivided Hindu family, etc. The very fact of the reference to the property that the parties have certain shares, indicates that they are co-owners.In Indian Law a co-owner is entitled to three essentials of ownership-# Right to possession# Right to enjoy # Right to dispose

Therefore, if a co-owner is deprived of his property, he has a right to be put back in possession. Such a co-owner has an interest in every portion of the property and has a right irrespective of his quantity of share, to be in possession jointly with others. This is also called joint-ownership.

The following are the types of co-ownerships:Tenants in Common When the type of co-ownership is not specifically stated, by default a tenancy in common is likely to exist. Each tenant in common has a separate fractional interest in the entire property. Although each tenant in common has a separate interest in the property, each may possess and use the whole property. Tenants in common may hold unequal interest in the property but the interests held by each tenant in common is a fractional interest in the entire property For e.g. B owns a 25% interest in the property and A owns a 75% interest. Each tenant in common may freely transfer his/her interest in the property.

Tenants in common do not have the right of survivorship. Therefore, upon the death of one tenant in common, his/her interest passes via will or through the laws of intestacy to another persons who will then become a tenant in common with the surviving co-owners.

Joint TenancyThe most attractive feature of joint tenancy is the right of survivorship. Upon the death of one joint tenant, his/her interest immediately passes to the surviving joint tenants and not to the decedents estate. Joint tenants hold a single unified interest in the entire property. Each joint tenant must have equal shares in the property For e.g. B and A each hold a 50% interest. Each joint tenant may occupy the entire property subject only to the rights of the other joint tenants.

Unlike tenants in common, joint tenancy has several requirements that must be met in order to be properly created. Massachusetts law requires that in order for a joint tenancy to be created specific language must be included in the conveyance or devise. Such language includes that the grantees take the land: "jointly"; "as joint tenants"; "in joint tenancy"; "to them and the survivor of them"; or using other language in the instrument that it was clearly intended to create an estate in joint tenancy. However, even if such language is contained in the conveying instrument, a joint tenancy may not exist. There are four additional common law requirements necessary in order to create a joint tenancy.

The four unities are(1) Unity of time. The interests of the joint tenants must vest at the same time(2) Unity of possession. The joint tenants must have undivided interests in the whole property, not divided interests in separate parts(3) Unity of title. The Joint tenants must derive their interest by the same instrument (e.g. a deed or will)

(4) Unity of interest. Each joint tenant must have estates of the same type and same duration. All four unities must exist. If one unity is missing at any time during the joint tenancy, the type of co-ownership automatically changes to a tenancy in common. A joint tenancy may be created by a will or deed but may never be created by intestacy because there has to be an instrument expressing joint tenancy. A joint tenancy is freely transferable.

Tenancy by the EntiretyThis type of co-ownership is exclusively for husband and wife. Similar to joint tenancy, tenancy by the entirety provides the right of survivorship. To exist, tenancy by the entirety requires that the four unities of joint tenancy exist plus a fifth unity of marriage between the two co-owners. However, even if all five unities exists, the type of co-ownership may still be joint tenancy if the conveying instrument indicates such. Unlike joint tenancy, tenancy by the entirety does not allow one spouse to convey his interest to a third party. However, one spouse may convey his/her interest to the other spouse. A tenancy by the entirety may only be terminated by divorce, death, or mutual agreement by both spouses. A terminated tenancy by the entirety becomes a tenancy in common.

In Konchunju Nair v. Koshy Alexander it was held that if a co-owner wants to erect a dwelling house on the land he is free to do so. If division of co-ownership of property takes place, the co-owner can claim, that, the said property be allotted to his share. The Court would ordinarily grant such an equitable right.

When Is A Co-Owner Legally Competent To Make A Transfer ?Section 7 of the Transfer of Property Act, 1882 provides that every person competent to contract i.e. a major and of sound mind or is not disqualified by law for contracting. Therefore even the interest of a co-owner or co-sharer can be sold, mortgaged, leased to another co-sharer or to a stranger. The fact that the partition has not taken place by metes and bounds , does not stand in the way of the interest of a co-owner.

According to the law prevailing in some areas, a coparcener of a Hindu Joint Family can alienate his share in the Joint Family Property for consideration. Such a coparcener is a legally competent person. But in some cases of Mitakshara coparcenary, the consent of other coparceners is required before any such transfer.

Also, where one co-owner is in exclusive possession of a plot of a joint land and lets it out to a tenant without the consent of other co-sharer landlords, such a tenancy will not bind the latter. The lease in such a case will only be confined to the interest and share of the lessor. In Baldev Singh v. Darshani Devi it was held by the Court that a co-owner who is not in actual physical possession over a parcel of land cannot transfer a valid title of that portion of the property. The remedy available to the transferee would be to get a share out from the property allotted after the partition or to get a decree for joint possession or can claim compensation from the co-owner. In Rukmini and others v. H.N T. Chettiar it was held by the High Court of Madras that a co-sharer cannot be allowed to cause prejudice to the other co-sharers by putting up a substantial construction during the pendency of a suit for partition filed by the other co-sharers. The High Court of Punjab and Haryana in a case of Hazara Singh v. Faqiria where a co-owner contended that he had, by adverse possession, a peaceful undisturbed possession by the other co-owners had become the sole owner of a land, held that the possession of a co-owner is possession of all the co-owners. It cannot be adverse to them unless there is a denial of their right to knowledge by the person in possession. If a co-sharer is in possession of the entire property, his possession cannot be deemed to be adverse he possesses the property on behalf of all others.

What Are The Rights Of A Transferee In Such A TransactionBasically this section deals with the rights of a transferee and also safeguards their rights. The transferee steps into the shoes of his transferor ie the co-owner, and is clothed with all the rights and becomes subject to all the liabilities of his transferor. In short, we can say that he becomes as much a co-owner as his transferor was before the transfer. Following are his rights after the transfer-

Right to joint possessionEvery joint owner or co-owner of property has a proprietary right in the whole estate. After the transfer, the transferee becomes the co-owner and gets all his rights. He also has the right to joint possession in property except a dwelling house. If a co-owner or his transferee is ousted from joint possession, he is entitled to joint possession by a suit, and is not necessary forced to sue for partition. A co-sharer can sue for possession either for the benefit of the entire body of co-sharers or for the partition and possession of the plaintiffs share.

Right to peaceful possessionIf instead of remaining in exclusive possession of his separate plot, the co-owner transfers it, his transferee cannot be disturbed by the other co-owners until and unless a final partition takes place. It was also held that where a tenant of a land who derives his title from all co-owners cannot be disturbed by one co-owner without the consent of all. But where the co-owners are enjoying the common property in separate plots for the sake of convenience, the court will not decree to one co-owner joint possession of the portion in the actual cultivation of the other.

Right to make improvementsIf a co-owner can make out a case that he is entitled to make construction on any part of the joint land, he should be allowed to do so. But he is not entitled to make construction on any other portion of the joint holding or to the detriment of the other co-owners.

Right to enforce partitionIn all cases of joint partnership, each party has a right to demand and enforce a partition; in other words a right to be placed in a position to enjoy his own right separately without interruption and interference by others. Under this section, not only a transferee of a share in the property but a transferee of any interest can sue for partition. A lessee, a mortgagee and even a life tenant is entitled to seek partition so far it is necessary to give effect to the transfer.

A claim of partition will only be refused on the ground of inconvenience. Partition does not depend on the duration of right. In a celebrated case a monthly tenant was also entitled to partition just to protect the rights of the plaintiffs. But a partition effected at the instance of a person having a temporary interest, lasts only till the expiry of that interest.

The transferee also gets the liabilities with all the benefits. The rights of the transferee are subject to the conditions and liabilities that attach at the date of the transfer to the share or interest so transferred.

Lalitha James and others v. Ajit Kumar and others AIR 1991 MP 15Facts:P.S. Chouhan held vast properties. He died unmarried and issueless and he decided to give away the said properties to his 2 sisters (Mrs. Dayabai and Gracebai) and executed a gift deed in 1935. There had been no partition between them. Mrs. Dayabai was survived by appellants 2,3and 4. Gracebai is survived by appellant 1, Mrs Lalita Jaems and respondent

no. 3. Mrs. Park. The 5.74 acres of land was divided between the survivors of Gracebai. Respondent no. 3 sold her share to Respondent no. 2 for Rs. 14,000/-.After the purchase, the transferee started digging on the land to raise a structure, it was objected by appellant no.1. A suit was filed by the Respondent 2.

At the Trial Court the suit was dismissed as the vendor was not in possession and the sale did not confer any right or title on them and they can get their money refunded

In the First Appeal Court it was held that the respondent no 3 was in exclusive possession of the land and rightfully sold it to the respondent no 2.Final Judgement :The Madhya Pradesh High Court emphasized that it is the strength of the plaintiffs title and not the absence of title of the defendant that matters. A purchaser from a co-owner of a portion of undivided property is not entitled to possession of any particular part of the joint property. His right would be for joint ownership and not for exclusive ownership of any particular part of the joint property. A transferee is not in a better position than the co-owner himself. Section 44 gives sanction to this principle.

The Respondents will be only entitled to enforce partition of the joint estate. The sale of the exclusive property cannot be accepted. Therefore, the appeal was allowed.

Second part of the Section 44This is an exception to the rule provided in the first part. Where a share in a dwelling house belonging to an undivided family is transferred to a stranger; the transferee cannot claim joint possession or any common part or enjoyment of the house. He can enforce his right over the property by a suit for partition. The principle underlying the provision is that it is inequitable to permit a stranger to intrude himself upon the privacy of an undivided family residence. Restriction contained in this part is applicable even if there is only one male member of family in occupation of family dwelling house.

In Balaji Anant v. Ganesh Janarthan Westropp C.J, observed as follows:We deem it a far safer practice to leave a purchaser to a suit for partition than to place him by force in joint possession in the Hindu Family, which may be not only of a different caste from his own, but also different in race and religion.

In order to grant relief under section 44 there should be two things satisfied-1) the property transferred should be a dwelling house2) the transferee should not be a member of the family.

In other words he should be a stranger. The right of a stranger transferee to have the house partitioned is, subject to Section 4 of the Partition Act, 1893. Under this section, a stranger claiming partition by metes and bounds may be compelled, at the option of the other members of the family to forego his legal right to partition and accept pecuniary compensation.

Explanation of Dwelling HouseIn the case of Durga v. Debidas , the members of the family were separated in mess and were residing in different places. They stayed in the house in the village for attending kali pooja. The house was otherwise used for collection of paddy. The court said that the stray use of the propert for a short residence for a specific purpose will not turn it into a dwelling house. There must be ancestral dwelling in existence on the suit land. The members of the family must not have abandoned the property.

Aahim Ranjan Das v. Smt. Bimla Ghosh AIR 1992 Cal 44Facts:The disputed property belonged to 4 brothers A, B, C, D. A purchased 1/5th share of D by a deed in 1969. A died in 1975 leaving behind him the plaintiffs as his legal heirs. B died leaving four sons and daughters. C is alive and the property is an undivided family dwelling house of the plaintiffs and co-sharers. C and B transferred their interest to the defendants. A monthly tenancy was created in favour of the lessee-defendant and he was also delivered the possession of the same.

The Plaintiffs filed a suit under Section 44 to restrain the lessee from interfering with their possession.The Judgment of the court was that the plaintiffs can very well ask for a protection. There is no controversy that the defendant is a stranger to the family. The co-sharer is entitled to protection under section 44.There was enough evidence to show that the house was a dwelling house and that the family was undivided and event the defendant was a stranger. The court relied on various judgments where it was held that upon a transfer of an undivided share of a dwelling house by a co-sharer, the other co-sharer may maintain a suit for injunction to restrain the transferee from getting into possession. Moreover it was said that a stranger purchaser is reduced to a trespasser. Section 4 of the Partition Act spells out the right to partition of such a stranger. Thus the appeal was dismissed.

In the case of Ramdayal v. Mannaklal where the defendant had purchased a house from the plaintiffs father and was put in possession thereof. The Plaintiff filed a suit challenging the validity of the sale for the absence of a legal necessity. The court was of the opinion that if the purchaser files a suit for partition in a certain period then he can be in possession till the pendency of the suit. He can be legally handed over that property if it is not in excess of the share of the coparcener. But if the coparcener transfers more than his share then in such a situation the purchaser can acquire what belongs to the co-owner i.e only his share. On looking at the material in records it was found that the property purchased was less than the share of the vendor. So the defendant was given possession.

In the case of Gautam Paul v. Debi Rani Paul the facts were-There were three sons A, B, C. they received the property via gift deed. D, Son of C, purchased the share of A. The share of B also came to soc of C by partition. The appellants who were the heirs of A still occupied a room in the suit property and also purchased certain share from the heirs of D. The other heirs filed a suit for partition and also challenged the sale