MUTUAL DIVORCE LAW FOR DIFFERENT RELIGIONS IN INDIA

 

MUTUAL DIVORCE LAW FOR DIFFERENT RELIGIONS IN INDIA

In India, just like the marriage laws, even the divorce laws are different for different religions. Hindu Marriage Act, 1955 covers Divorce laws for Hindus (including Sikhs, Jains and Budhists). For Muslims, their Personal laws of Divorce, Dissolution of Marriage Act 1939 and the Muslim Women ( Protection of Rights on Divorce) Act, 1986 are applicable. The secular law - Special Marriage Act, 1954 governs the inter-religion marriages.

Mutual Divorce is when both the parties (husband and wife) agree mutually to separate i.e. they agree that living together is impossible and that Divorce is the best solution. This article explains mutual divorce under different laws for different religions in India.

1.         MUTUAL DIVORCE UNDER HINDU LAWS:

Mutual Divorce for Hindus is governed by Section 13B of the Hindu Marriage Act 1955. Under this Section, there are several requirements that need to be complied with to file for a Mutual Divorce:

The parties should have been living separately for a minimum period of one year. No reconciliation or adjustment is possible between the parties and they have failed to live together. The parties have consented to the agreement of dissolution of marriage. The parties can withdraw the petition to divorce even at the instance of one party. This can be done within a period of six months from the date of the presentation of the petition for mutual divorce.

The divorce case can be filed in the appropriate family court. The procedure begins with the filing of a joint petition signed by both the parties. The petition must contain a statement by both the parties that due to differences that cannot be fixed, they can no longer stay together and thereby seek divorce. Both the parties are required to appear in the family court. After the petition is scrutinised, the statements of the parties will be recorded.

 There are two motions in mutual divorce under Hindu law. After the statements are recorded, first motion order is passed by the court after which a 6 month period is given to the parties where the parties shall file the second motion. This is required to be filed within 18 months from the date of the presentation of the petition for the first motion. Either party can withdraw their consent at any time before the passing of the decree. Once the Court is satisfied, that the differences are irreconcilable, and that divorce is the best option for both parties, it will pass a decree of divorce. This is when the divorce becomes final.

2.         MUTUAL DIVORCE UNDER MUSLIM LAW:

There are two categories of divorce under Muslim law - judicial and extra-judicial. Mutual Divorce for Muslims falls under the extra[1]judicial category. It is based on the belief that since divorce is an act of the parties, the court does not need to intervene. Khula and Mubarat are the two kinds of mutual divorce/agreement.

KHULA:       This kind of mutual divorce is said to be an agreement between the spouses (husband and wife), to dissolve the union in lieu of a part of the woman’s property (as compensation) to the husband. Actual delivery is not mandatory for the validity of the divorce even though consideration is an important aspect of the Khula system. Once the husband gives his consent, an irrevocable divorce takes place and the husband cannot cancel the said khul if the consideration has not been paid.

MUBARAT: Under this kind of divorce, it is important that both the husband and the wife must desire divorce, and the proposal for divorce can arise from either side. Once such offer is made, the other side should accept it. Once accepted, the divorce becomes irrevocable.

There are some variations for Sunnis and Shias under this form of divorce. For Sunnis, once the parties enter into a mubarat the rights and obligations of the parties are put to an end. For Shias, there needs to be a proper form, i.e. the word Mubarat is required to be followed the word Talaq for the divorce to actualise. These words must be said in Arabic. Moreover, the intention to dissolve the marriage shall be expressed in clear words.

3.         MUTUAL DIVORCE UNDER CHRISTIAN LAW:

Divorce Act 1869 governs divorce for Christians in India. Dissolution of marriage by way of mutual consent has been given under Section 10A of the Act. The petition for mutual divorce can be filed by both the parties in the appropriate District Court.

THE PETITION SHOULD CONTAIN THE GROUNDS:

(a) That the parties have been living separately for more than a year

(b) That it is not possible for them to cohabit together

(c) That the decision to dissolve the marriage is a mutual decision of both the parties

The petition can be withdrawn after 6 months from the date of presentation of the mutual divorce petition, but before a lapse of 18 months from such date.

4.         MUTUAL DIVORCE UNDER PARSI LAW:

Divorce for Parsis is governed by the Parsi Marriage and Divorce Act, 1936. Section 32B of the said Act lays down the rules for mutual divorce. There are certain reconditions that are required to be fulfilled in order to be able to get a mutual divorce decree from the Court:

(a) It is mandatory to mention in the petition the ground that they have been living separately for a period of one year or more

(b) It is also important to mention that they have not been able to live together, and

(c) The petition should state that they have mutually agreed that their marriage needs to be dissolved

(d) A petition/suit for mutual divorce can only be filed after the lapse of one year since the date of their marriage.

Once the Court is satisfied after its inquiry, that the marriage had been solemnized under the Parsi Marriage and Divorce Act, that the facts mentioned in the petition are true and the consent of both the parties is present for the mutual divorce without any force or fraud, it would pass a decree of mutual divorce

VICARIOUS LIABILITY

 

VICARIOUS LIABILITY

 Offence by Company--Summoning of Directors--Vicarious liability cannot be fastened upon any Director automatically in the absence of legislative mandate merely because they had occupied certain positions in the Company at the relevant time

Death by Negligence--Vicarious Liability--Potholes of the National Highway Road--All the Directors of Road Construction Company which was responsible for repair and maintenance of the road in question were summoned--Summoning Orders quashed

(A) Indian Penal Code, 1860, S.304-A--Criminal Procedure Code, 1973, S.482--Death by Negligence--Potholes of the National Highway Road--Quashing of Summoning Orders--Liability of Directors--All the Directors of Road Construction Company which was responsible for repair and maintenance of the road in question were summoned--Held;

(i) Impugned supplementary chargesheet do not contain any specific allegations with regard to the role played by the petitioners.

(ii) Petitioners cannot be implicated in the absence of any specific allegations indicating their specific role in commission of the crime.

(iii) There is no provision in the IPC for fastening the vicarious liability upon the Directors of the Company for offences listed in it.

(iv) Criminal liability upon the Directors of the Company cannot be imposed merely because of the positions they hold in the Company at the relevant time, by applying the principle of vicarious liability--There is no other allegation against the petitioners to indicate their complicity except for being members of the Board of Directors of the Company.

(v) Impugned summoning orders against all Directors of the Company quashed. (Para28)

 

(B) Indian Penal Code, 1860--Vicarious Liability--Offence by Company--Summoning of Directors--Legal Principles summarized--Held;

(i) A Company and its Directors are not immune from criminal prosecution but it has to be established that the said offence has been committed with their consent or in connivance with them--These persons cannot be arrayed as accused in the absence of their active participation and attribution of a specific role played in commission of the alleged offence with criminal intent.

(ii) Vicarious liability cannot be fastened upon any Director automatically in the absence of legislative mandate merely because they had occupied certain positions in the Company at the relevant time.

(iii) For summoning the Directors of a Company for commission of an offence under the IPC, the conventional rule of existence of mens rea is to be followed--[Act us non facit reum nisi mens sit rea-an act does not make the defendant guilty unless it is done with a guilty intent].

(iv) Summoning the accused in a criminal case requires recording of prima facie satisfaction about the involvement of the accused, as a bare minimum--The summoning order must satisfy the objective standards of reason and justice. (Para26)

 

A two Judge Bench of the Hon’ble Supreme Court in HDFC Securities Ltd. Vs. State of Maharashtra AIR 2017 (SC) 61, speaking through Justice Pinaki Chandra Ghose, has authoritatively held that IPC does not provide for vicarious liability for any offence alleged to have been committed by a Company. If such liability was sought to be imputed by the legislature by creating a legal fiction, the same would have been specifically provided in the statute as is the case with the Negotiable Instruments Act. Further, a two Judge Bench of the Hon’ble Supreme Court in Sharad Kumar Sanghi Vs. Sangat Rane (2015) 12 SCC 781,speaking through Justice Dipak Mishra, has held that when a complainant intends to rope in the Managing Director or any officer of the Company, it is essential to make the requisite specific allegations to constitute the vicarious liability. A two Judge Bench of the Hon’ble Supreme Court in GHCL Employee Stock Option Trust Vs. Nimesh Ramesh Mehta (2013) 4SCC 505, speaking through Justice M.Y. Eqbal, has held that criminal law machinery cannot be set into motion as a matter of course. The summoning order passed by the Magistrate must reflect application of mind to the facts of the case.

(C) Doctrine of Law

Doctrine of Alter Ego--If a group of persons responsible for the conduct of business of the company has a criminal intent, the same can be imputed to the body corporate and not vice versa--Therefore, such person, who had committed the offence on behalf of the Company can be made an accused along with the Company only if there is specific attribution of his active participation with culpable intent. (Para 23)

(D) Doctrine of Law

Doctrine of Vicarious Liability--It is a civil concept and its applicability in criminal cases is an exception rather than the rule--In the Indian context, a person can be held liable for the actions of another, with the aid of provisions contained in Section 34,120-B and 149 of the IPC--As such, in criminal law, in certain cases, a person may beheld liable even though the act us reus was committed by another person. (Para 20)

2024(2) Law Herald (P&H) 1028

WAQF BOARD & NOT WAQF TRIBUNAL HAS JURISDICTION TO DECIDE ISSUE OF MUTAWALLI : SUPREME COURT

 WAQF BOARD & NOT WAQF TRIBUNAL HAS JURISDICTION TO DECIDE ISSUE OF MUTAWALLI  :  SUPREME COURT

Case Title: S V CHERIYAKOYA THANGAL v. S.V P POOKOYA & ORS., CIVIL APPEAL NO.4629/2024

Citation : 2024 Live Law (SC) 309

Recently, the Supreme Court held that the original jurisdiction to decide the issue pertaining to Mutawalliship vests with the Waqf board and not the Waqf Tribunal. Distinguishing the role of the Waqf Tribunal from that of the board, the Court said that the former is an adjudicatory authority while the latter deals with administration-related issues.

“After all, the Waqf Tribunal is only an adjudicating authority over a dispute while the Waqf Board is expected to deal with any issue pertaining to administration. The power of superintendence cannot be confined to routine affairs of a Waqf but it includes a situation where a dispute arises while managing the property and that would certainly include a right of a person to be a Mutawalli after all, it is the Mutawalli who does the job of administering and managing the Waqf.,” stated Justices M.M Sundresh and S.V.N. Bhatti.

 

The Court further observed that the Waqf Tribunal is deemed a civil court with the same powers as the Civil Court. In other words, a dispute can be tried like a suit by the Waqf Tribunal., the Court added.

 

The crux of the matter is that both the litigating parties had claimed Mutawalliship of the Waqf. Ultimately, the Waqf Board held in favor of the appellant, declaring him a Mutawalli. Aggrieved by such an order, the opposite party approached the tribunal. Having no relief granted, the opposite party filed a revision before the High Court. While the High Court did not go into the merits of the case, it set aside the judgment by ruling that the Waqf Board did not have the jurisdiction to decide this issue. Thus, the tribunal directed matter to be decided afresh. Against this order, the appellants filed an appeal before the Top Court.

At the outset, the Court perused the relevant provisions under the Waqf Act of 1995. In this context, it may also be noted that Section 32(2)(g) of the Act states that one of the Board's functions is appointing and removing mutawallis.

Elaborating, the Court said: “The word 'competent authority' as mentioned in the definition clause contained in Section 3(i) makes the position further clear that it is the Waqf Board which has got the jurisdiction and not the Waqf Tribunal.”

In view of this projection, the Court concluded that the matter could not be remitted to the Tribunal as the Waqf Board is the competent authority for deciding the present issue. Thus, while setting aside the impugned order, the court directed the High Court to decide the matter on merits.

Considering that the dispute was pending since 1987, the Court requested the High Court to expedite the hearing and dispose it at the earliest.

COMMERCIAL DISPUTES CANNOT BE DECIDED IN SUMMARY PROCEEDING UNDER THE CONSUMER PROTECTION ACT 1986

 COMMERCIAL DISPUTES CANNOT BE DECIDED IN SUMMARY PROCEEDING UNDER THE CONSUMER PROTECTION  ACT 1986

1.         COMMERCIAL DISPUTES CANNOT BE DECIDED IN SUMMARY PROCEEDING UNDER THE CONSUMER PROTECTION  ACT 1986

2024(2) Law Herald (SC) 1020

Investment for deriving interest on the same--Consumer Complaint not maintainable

Partnership--Death of Partner--Legal heirs do not become liable

Consumer Protection Act, 2019--Investment for Profit or Gain--Complainant had made investment with respondent for deriving interest on the same--Therefore, it would be an investment for profit/gain--It was a commercial transaction and therefore also would be outside the purview of the 1986 Act--Commercial disputes cannot be decided in summary proceeding under the 1986 Act--Complaint dismissed being not maintainable. (Para 7)

(B) Partnership Act, 1932--Death of Partner--Liability of Legal Heirs--Legal heirs of a deceased partner does not become liable for any liability of the firm upon the death of the partner. (Para 8)

 

2. BUYER NOT LIABLE TO PAY INTEREST ON THE BALANCE AMOUNT

2024(2) Law Herald (SC) 989

Delay in Delivery of Possession--Buyer not liable to pay interest on the balance amount

Consumer Protection Act, 2019--Housing--Interest on Balance Amount--Delay in Delivery of Possession--Buyer had paid about 90% of the total amount before due date of handing over the possession which builder failed to adhere--Thus, National Commission erred in directing the buyer to pay interest 9% per annum on the balance amount--Impugned order set aside.

3. REPUDIATION OF CLAIM

2024(1) Law Herald (SC) 892

Insured pleaded in appeal that he was not provided the surveyor’s report and the investigators’ report--Complaint to be decided afresh

Consumer Protection Act, 2019--Insurance--Repudiation of Claim--Insured--appellant has taken a pertinent plea in the instant civil appeal that the copies of the surveyor’s report and the investigators’ report were not provided timely and thus, the insured-appellant did not get proper opportunity to rebut the same--Held;

(i) This pertinent plea taken by the insured-appellant in the memo of appeal has not been specifically refuted and only a formal denial was offered in the counter-affidavit filed by the insurer-respondent.

(ii) Insured-appellant should have been provided proper opportunity to file its rebuttal/objections to the affidavit/reports submitted by the insurer-respondent before the National Commission.

(iii) Consequently, the complaint should be reconsidered on merits after providing such opportunity to the appellant.

 

4. HOUSING LOAN

2024(1) Law Herald (SC) 559

Consumer Protection Act, 1986--Housing Loan--Change in Rate of Interest--Appellant contended that before availing housing loan he was assured that rate of interest will be based on Prime Lending Rate i.e. as fixed by RBI from time to time and an email was also sent to him in this regard by an employee of Bank--However in the agreement adjustable rate of interest i.e. as fixed by lending Bank from time to time was mentioned--Appellant sought refund of excess interest charged by the bank--Held;

(i) When it is contended that the appellant had the option of securing loan from other banks and that being misled by the email had entered into the transaction, would by itself indicate that the appellant was worldly wise.

(ii) In such circumstance, when the parties have signed the agreement the terms agreed therein would bind the parties and the email by marketing employee cannot override the policy decisions of the institution--Complaint dismissed.

In order to contend that the appellant has been misled or that the earlier representation will constitute unfair trade practice, the appellant ought to have raised such contention when the agreement was to be signed.

Having executed the agreement; having agreed to the terms and conditions; having received the loan amount, the appellant cannot raise any objection for the first time when the rate of interest was increased after having acquiesced by signing the agreement. Further, the appellant having repaid the loan amount with interest as per the terms of agreement cannot make out a grievance in hindsight and seek refund of the amount paid.

 

5. MEDICAL NEGLIGENCE

2024(1) Law Herald (SC) 481

Hoarseness in Voice--Major Surgery for Lung Cancer--Anesthesia was administered by Trainee Doctor in place of Head of the Department of Anesthesia--Compensation of Rs. 10 lakhs awarded

Consumer Protection Act, 1986--Medical Negligence--Anesthesia by Trainee--Patient developed hoarseness in voice after surgery of lung--Surgery relating to cancer of the lung is a specialized surgery and needs a specialized anesthetist--Though the Head of the Department of Anesthesia was to administer anesthesia to the patient but the same was administered by a doctor who was qualified but was a trainee anesthetist in Cardiac Anesthesia Department--Compensation of Rs. 5 lakhs enhanced to Rs. 10 lakhs with simple interest @ 10% p.a.

NOTICE NOT SERVING IN OFFENCE WHERE SENTENCE CAN BE AWADED UPTO 7 YEARS ATTRACTS CONTEMPT PROCEEDINGS AGAINST POLICE

Section 41A CrPC provides that:-

"41A. Notice of appearance before police officer.-

(1) The police officer shall, in all cases where the arrest of a person is not required under the provisions of sub-section (1) of Section 41, issue a notice directing the person against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists that he has committed a cognizable offence, to appear before him or at such other place as may be specified in the notice.

(2) Where such a notice is issued to any person, it shall be the duty of that person to comply with the terms of the notice.

 (3) Where such person complies and continues to comply with the notice, he shall not be arrested in respect of the offence referred to in the notice unless, for reasons to be recorded, the police officer is of the opinion that he ought to be arrested.

 (4) Where such person, at any time, fails to comply with the terms of the notice or is unwilling to identify himself, the police officer may, subject to such orders as may have been passed by a competent Court in this behalf, arrest him for the offence mentioned in the notice.

" In this way, Amendment of 2009 made it clear that notice under section 41A has to be served upon an accused and he shall not be arrested if continues to complies with the notice.

Also, in the landmark judgment of “Arnesh Kumar v. State of Bihar”, 2014 (3) RCR (criminal) 527 it has been held by the Hon’ble Apex Court of India that:-

11.       Aforesaid provision makes it clear that in all cases where the arrest of a person is not required under Section 41(1), Cr.P.C., the police officer is required to issue notice directing the accused to appear before him at a specified place and time. Law obliges such an accused to appear before the police officer and it further mandates that if such an accused complies with the terms of notice he shall not be arrested, unless for reasons to be recorded, the police office is of the opinion that the arrest is necessary. At this stage also, the condition precedent for arrest as envisaged under Section 41 Cr.P.C. has to be complied and shall be subject to the same scrutiny by the Magistrate as aforesaid.

12.       We are of the opinion that if the provisions of Section 41, Cr.P.C. which authorises the police officer to arrest an accused without an order from a Magistrate and without a warrant are scrupulously enforced, the wrong committed by the police officers intentionally or unwittingly would be reversed and the number of cases which come to the Court for grant of anticipatory bail will substantially reduce. We would like to emphasise that the practice of mechanically reproducing in the case diary all or most of the reasons contained in Section 41 Cr.P.C. for effecting arrest be discouraged and discontinued.

13.       Our endeavour in this judgment is to ensure that police officers do not arrest accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following direction:-

 (1) All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A of the IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41, Cr.P.C.;

(2) All police officers be provided with a check list containing specified sub-clauses under Section 41(1)(b)(ii);

(3) The police officer shall forward the check list duly filed and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

(4) The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

 (5) The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of police of the district for the reasons to be recorded in writing;

(6) Notice of appearance in terms of Section 41A of Cr.P.C. be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the District for the reasons to be recorded in writing;

 (7) Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before High Court having territorial jurisdiction.

(8) Authorising detention without recording reasons as aforesaid by the judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

14. We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A of the I.P.C. or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years; whether with or without fine.

 In the present section 420 IPC has been imposed in the present FIR in which also punishment is also up to seven years which means that guidelines issued by the Hon’ble Supreme Court are very well applicable in the present case also.

That recently, in May 2021 while issuing guidelines in Re : Contagion of Covid 19 Virus In Prisons, Hon’ble Supreme Court of India on 07.05.2021 has reiterated the guidelines of Arnesh Kumar judgment which are as follows:-

9.         As a first measure, this Court, being the sentinel on the qui vive of the fundamental rights, needs to strictly control and limit the authorities from arresting accused in contravention of guidelines laid down by this Court in Arnesh Kumar v. State of Bihar (supra) during pandemic. It may be relevant to quote the same:

11.       Our endeavour in this judgment is to ensure that police officers do not arrest the accused unnecessarily and Magistrate do not authorise detention casually and mechanically. In order to ensure what we have observed above, we give the following directions:

11.1.   All the State Governments to instruct its police officers not to automatically arrest when a case under Section 498A IPC is registered but to satisfy themselves about the necessity for arrest under the parameters laid down above flowing from Section 41 CrPC;

11.2.   All police officers be provided with a check list containing specified sub clauses under Section 41(1)(b)(ii);

11.3.   The police officer shall forward the check list duly filled and furnish the reasons and materials which necessitated the arrest, while forwarding/producing the accused before the Magistrate for further detention;

11.4.   The Magistrate while authorising detention of the accused shall peruse the report furnished by the police officer in terms aforesaid and only after recording its satisfaction, the Magistrate will authorise detention;

11.5.   The decision not to arrest an accused, be forwarded to the Magistrate within two weeks from the date of the institution of the case with a copy to the Magistrate which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.6.   Notice of appearance in terms of Section 41A CrPC be served on the accused within two weeks from the date of institution of the case, which may be extended by the Superintendent of Police of the district for the reasons to be recorded in writing;

11.7.   Failure to comply with the directions aforesaid shall apart from rendering the police officers concerned liable for departmental action, they shall also be liable to be punished for contempt of court to be instituted before the High Court having territorial jurisdiction.

11.8. Authorising detention without recording reasons as aforesaid by the Judicial Magistrate concerned shall be liable for departmental action by the appropriate High Court.

12.       We hasten to add that the directions aforesaid shall not only apply to the cases under Section 498A IPC or Section 4 of the Dowry Prohibition Act, the case in hand, but also such cases where offence is punishable with imprisonment for a term which may be less than seven years or which may extend to seven years, whether with or without fine. Therefore, not just the Policemen, even Magistrate can also be made liable for Departmental action as per the above-stated judgments.

CASE LAW:

On the basis of above-said Arnesh Kumar judgment, our Law Firm has filed a contempt petition in the Hon’ble High Court of Punjab and Haryana COCP No.2521 of 2021 in which our client Ram Lal Chaudhary has been picked up from his office on 11.11.2021 i.e. on the same day of registration of FIR No. 177 dated 11.11.2021 registered under sections 420, 120B IPC at Police Station 34, Chandigarh without any service of notice under section 41-A CRPC. In this case, section 420 IPC prescribes punishment which is upto 7 years and hence, guidelines of Arnesh Kumar are very well applicable to the present case.

Also, Mr. Navkiran Singh argued that in the present case, guidelines issued by the Hon’ble Supreme Court in the Lalita Kumari v. State of UP have also been violated in the present case as present case pertains to commercial / monetary transactions for which preliminary enquiry should have been conducted and also, there is an undue delay of 5 years in lodging of complaint which is unjustified and unreasoned which again warrants a preliminary enquiry, however, without any enquiry or any notice, petitioner has been straight away picked up from his office even prior to the registration of the FIR from his Office and has been illegally detained and hence, respondent in this way have violated the guidelines of Hon’ble Supreme Court.

RECENT JUDGEMENT ON POWER OF ATTORNEY HOLDERS THAT CANNOT GIVE EVIDENCE ABOUT FACTS WHICH ARE WITHIN PERSONAL KNOWLEDGE OF PERSONS THEY REPRESENTING:

 CASE TITLE: CIVIL APPEAL NO. 9642 OF 2010 MANISHA MAHENDRA GALA & ORS. …APPELLANT(S) VERSUS SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S) WITH CIVIL APPEAL NO. 9643 OF 2010 MANISHA MAHENDRA GALA & ORS. …APPELLANT(S) VERSUS SHALINI BHAGWAN AVATRAMANI & ORS. …RESPONDENT(S)

IN recent judgment that a Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents.

Observing that a power of attorney holder can depose about the fact within his knowledge and not about those facts which are not within his knowledge, the Supreme Court denied the easementary right over the “rasta” claimed by the person based on the statements made by the 'power of attorney' who doesn't know the facts before making the statements.

“It is, therefore, settled in law that Power of Attorney holder can only depose about the facts within his personal knowledge and not about those facts which are not within his knowledge or are within the personal knowledge of the person who he represents or about the facts that may have transpired much before he entered the scene...He (power of attorney) was not having any authority to act as the Power of Attorney of the Gala's at the time his statement was recorded. He was granted Power of Attorney subsequently as submitted and accepted by the parties. Therefore, his evidence is completely meaningless to establish that Gala's have acquired or perfected any easementary right over the disputed rasta in 1994 when the suit was instituted.”, the Bench Comprising Justices Pankaj Mithal and Prashant Kumar Mishra said.

The case relates to the claim of the easementary right by the appellants over the “rasta” which passes from the property owned by the respondents. AND the appellant's claim of easementary right over the respondent's property was based on the statements made by the power of attorney before the court. However, the power of attorney made the statement while he was not authorized to make his statement as a power of attorney of the appellants.

Objecting to the appellant's claim of easementary right, the respondents contended that the deposition made by the power of attorney had no value as the appellant's power of attorney did not know about the transaction, and hence cannot be examined as a witness.

Rejecting the appellant's contention, the Judgment authored by Justice Pankaj Mithal asserted that the 'power of attorney' can only depose such facts that are within its knowledge.

Noting that the fact of appellants having the easementary right over the respondent's property was not within the knowledge of the appellant's power of attorney and neither he was the power of attorney when the transaction took place, the court found the evidence given by power of attorney as meaningless.

The court opined that the power of attorney holder cannot give evidence of which he doesn't have knowledge, and neither he can be examined as a witness to give such evidence before the court.

In Janki Vashdeo Bhojwani vs. IndusInd Bank Ltd., the Supreme Court held that the Power of Attorney holder or the legal representative should have knowledge about the transaction in question to bring on record the truth in relation to the grievance or the offence.

“However, to resolve the controversy with regard to the powers of the General Power of Attorney holder to depose on behalf of the person he represents, this Court upon consideration of all previous relevant decisions in A.C Narayan vs. State of Maharashtra, the Supreme Court clarified that “Power of Attorney holder can depose and verify on oath before the court but he must have witnessed the transaction as an agent and must have due knowledge about it. The Power of Attorney holder who has no knowledge regarding the transaction cannot be examined as a witness. The functions of the General Power of Attorney holder cannot be delegated to any other person without there being a specific clause permitting such delegation in the Power of Attorney; meaning thereby ordinarily there cannot be any sub-delegation.”, the court observed.

General Power Of Attorney (GPA) Or Will (Before Death Of Testator) Cannot Confer Title In Immovable Property

General Power Of Attorney (GPA) Or Will (Before Death Of Testator) Cannot Confer Title In Immovable Property : Supreme Court

 

IN THE SUPREME COURT OF INDIA , CIVIL APPEAL NOS.7527-7528 OF 2012

(GHANSHYAM   VERSUS YOGENDRA RATHI)

The Supreme Court has held that a Will or General Power of Attorney (“GPA”) cannot be recognized as title documents or documents conferring right in any immovable property. It has been further held that the non-execution of any document by the GPA holder consequent to it, renders the said GPA useless.

 

The Bench comprising of Justice Dipankar Datta and Justice Pankaj Mithal, while adjudicating the appeal Ghanshyam v Yogendra Rathi, has held as under:

 

“In connection with the general power of attorney and the will so executed, the.practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value”.

 

BACKGROUND FACTS:

Mr. Ghanshyam (“Appellant”) was the owner of a property situated in Delhi (“Suit Property”). He entered into an Agreement to Sell dated 10.04.2002 with Mr. Yogendra Rathi (“Respondent”) for sale of Suit Property and received the entire sale consideration from the Respondent. On the same day, the Appellant executed a will bequeathing the Suit Property to the Respondent. The Appellant further executed a General Power of Attorney in favour of the Respondent.

he possession of the Suit Property was handed over to the Respondent, however, no sale deed was executed.

 

The Respondent permitted the Appellant to occupy a portion of the Suit Property for 3 months as a licencee. After expiry of 3 months period, the Appellant did not vacate the Property. The Respondent filed a suit against the Appellant seeking the latter’s eviction from the Suit Property and recovery of mesne profits.

 

The Respondent claimed his ownership on the Suit Property on the strength of the Agreement to Sell dated 10.04.2002, General Power of Attorney, memo of possession, receipt of payment of sale consideration and a will dated 10.04.2002.

 

The Appellant argued that the documents cited by the Respondent have been manipulated on blank papers. However, there was no evidence to that effect. The Appellant did not dispute the execution of such documents or receipt of sale consideration by him.

 

The Trial Court held that there was no manipulation of documents and thus the Respondent is entitled to decree for eviction and recovery of mesne profits.

 

The Appellant filed a first appeal and thereafter a second appeal before the High Court and both were decided in favour of the Respondent. Subsequently, the Appellant filed an appeal before the Supreme Court.

 

SUPREME COURT VERDICT:

The Bench noted that an Agreement to Sell is neither a document of title nor a deed of transfer of property by sale. Therefore, it does not confer any absolute title upon the Respondent over the Suit Property, in view of Section 54 of the Transfer of Property Act, 1882. However, the factors such as entering into an Agreement to Sell, payment of entire sale consideration and being put in possession by the transferor, shows that the Respondent has de-facto possessory rights based on his part performance of the Agreement to Sell.

The possessory right of the Respondent is not liable to be disturbed by the transferer (Appellant). It was further observed that Appellant’s entry into the Suit Property subsequently was as a licencee of the Respondent and not as the owner of Property.

A will has no force during the life of executants.

On the issue of whether any title can be conferred through Will, the Bench opined that a Will comes into effect only after the death of the executant. Since a will has no force during the life of the executant, the Appellant’s will did not confer any right upon the Respondent. It was observed as under:

“Similarly, the will dated 10.04.2002 executed by the defendant-appellant in favour of the plaintiff-respondent is meaningless as the will, if any, comes into effect only after the death of the executant and not before it. It has no force till the testator or the person making it dies. The said stage has not arrived in the present case and, therefore, even the aforesaid will in no way confers any right upon the plaintiff- respondent.”

A Will or General Power of Attorney cannot be recognized as title documents or documents conferring right in any immovable property

 

It was observed that the General Power of Attorney executed by the Appellant is inconsequential, since neither sale deed has been executed nor any action has been taken by the General Power of Attorney holder which may confer title upon the Respondent. “Non-execution of any document by the general power of attorney holder consequent to it renders the said general power of attorney useless”, the Bench held.

 

Further, the Bench deprecated the practice of recognizing General Power of Attorney or will as title documents.

 

“In connection with the general power of attorney and the will so executed, the practice, if any, prevalent in any State or the High Court recognizing these documents to be documents of title or documents conferring right in any immovable property is in violation of the statutory law. Any such practice or tradition prevalent would not override the specific provisions of law which require execution of a document of title or transfer and its registration so as to confer right and title in an immovable property of over Rs.100/- in value”, the Bench ruled.

 

The Bench placed reliance on the judgment in Suraj Lamp & Industries Pvt. Ltd. Vs. State of Haryana & Anr., (2009) 7 SCC 363, wherein the Supreme Court deprecated the transfer of immovable property through sale agreement, general power of attorney and will instead of a registered conveyance deed.

 The Bench upheld the High Court’s view that the Respondent is entitled to a decree for eviction with mesne profits.