Advocate & Lawyer in Haldwani, Uttarakhand – Abhishek

Hit and Run Cases in the new Indian Penal Code Bill

advocate — Tue, 22 Aug 2023 11:00:25 +0000

Hit and Run Cases in the new Indian Penal Code Bill

Hit and Run Cases have become fairly common in India. Mostly, it deals with cases where a person had been killed in the road accident and the culprit escapes from the scene of accident without reporting the matter to police or even to check the health condition of the other person.

In the current Indian Penal Code of 1980 Section 304-A provides the punishment for such cases which was upto 2 Year of imprisonment or fine or both.

However, with the growing menace of HIT and RUN cases and also where by some criminals using car as a weapon to kill someone and showing it as a HIT and RUN case to attract minimum punishment it was though fit by the new bill which is THE BHARATIYA NYAYA SANHITA, 2023 the punishment for the same is now given under Section 104 which is

104. (1) Whoever causes the death of any person by doing any rash or negligent act
not amounting to culpable homicide, shall be punished with imprisonment of either descriptionfor a term which may extend to seven years, and shall also be liable to fine.
(2) Whoever causes death of any person by doing any rash or negligent act not
amounting to culpable homicide and escapes from the scene of incident or fails to report the incident to a Police officer or Magistrate soon after the incident, shall be punished with imprisonment of either description of a term which may extend to ten years, and shall also be liable to fine.

Hence, a rash or negligent driving causes an accident and you stop and report the accident then your punishment is upto 7 Years. However, if you do not report the accident and escape the scene your punishment is upto 10 Years. Which is considerably HIGH.

Further, previously such offence was a Bailable offence. However, under the new Criminal Procedure Code which has been renamed asbharatiya nagarik suraksha sanhita, 2023 – The Offence is now NON-BAILABLE offence.

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Adultery as a Ground for Divorce

advocate — Sat, 08 Apr 2023 10:40:37 +0000

Adultery as a ground for Divorce

Extra marital sex – prior to amendment of 1976 it was living with adultery – now even a solitary instance of extra marital sex is sufficient to grant DIVORCE
Mere allegation of adultery without any details not sufficient
Mere suspicion – NO
Attempt to commit adultery – NO

Any petition which alleges adultery as a ground has to make adulterer as the necessary party

It would amount to non joinder of necessary party – Rajesh devi 2020 case

Adultery by its nature is a secret act.

Direct act of adultery is difficult

The prove required is based on positive evidence

Direct evidence not necessary – can be proved by oral, documentary or circumstantial evidence for an inference to be drawn beyond reasonable doubt = Case – john wite case 1956 SC

Adultery is generally proved by presumptive prove-

Circumstance prove
Evidence non sex and child birth
Venerable diseases
Admission & confession

Circumstance evidence cannot be accepted as an accepted rule –

Hence the general rule is such that a circumstances must be such that a reasonable man would come to a conclusion that there was an act of adultery

Higher degree of probability mere suspension not enough

Presumption of legitimacy highly favored by LAW.

Hence, a mere premature birth of child not enough

= birth of child by wife, where husband access not there – adultery

Evidence 112 – it can be proved

Issue Access and Not Access – where the paternity of child DNA prevails over sec 112 of evidence. Now with advancement of science there is no room of presumption.

Condonation of offences –

Section 23 2(b) – of Hindu marriage act – can condonation of cruelty & adultery

Forgiveness and restoration with knowledge of all material knowledge
With an implied condition it would not be repeated.
To constitute condonation – needs –forgiveness & restoration
SC held – reconciliation & co habiting is test of condonation .
Avinash eknath nikalgi cse – undertaking given by wife – subject to implied condition not to be repeated if done – fresh petition for divorce can be held – can go back to the original allegation
Res Judicata – when there is a decision given on the grounds but does not apply for condonation.

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Divorce Law Uttarakhand – Cruelty as a ground for Divorce

advocate — Wed, 15 Mar 2023 07:47:42 +0000

Divorce Law in India – Cruelty as a ground for Divorce

Cases for divorce are increasing on a daily basis with marriages becoming more fragile then ever. However, one needs to understand that under Indian perspective especially Hindu Marriages are always treated as a sacrosanct and not a mere contract (like Muslim marriages) and hence being treated as sacrosanct; the courts try to make sure that the marriage can be saved either by mediation or compromise. Giving a divorce degree by a court is the last resort when it comes to the conclusion that the marriage is beyond repair because of the FAULT of one Spouce.

The entire process of divorce is a very tedious process if the other party is contesting (i.e. against the divorce) and is not willing to give divorce.

Under Hindu Marriage Act of 1955, the common grounds of dissolution of marrige (i.e. grounds on which divorce can be granted) are –

- Cruelty
- Desertion
- Adultery
- Unsoundness of mind or mental disorder
Other less common grounds are
- Change of religion
- Vulnerable disease
- Person not heard of for 7 Years

The most common ground for divorce in India is CRUELTY. Where one spouse (generally woman) alleges cruelty from husband or her in-laws. This is the most common sighted ground for getting a divorce in India.

What is CRUELTY?

Cruelty – Basically means being cruel. There is no specific definition of cruelty mentioned in any legislative text.

It has been explained by various Judicial Cases – it can differ from person to person, case to case, situation to situation.
Conduct that may amount to cruelty in one case may not amount the same in another case as it depends upon situation, experience and relation between the parties.

Matrimonial offences are between a particular man & a particular woman

Cruelty has not been defined.
Ravi Kumar’s case –Cruently can be of infinite variety it may be subtle or brutal by gesture or words. It can be physical or any other form. Can be in silence or attitude. In such situation all these factors commutatively considered and amounts to cruelty.
Physical and mental condition of parties need to ascertained.
Long period in delay in proceeding cannot be a ground of cruelty.
Standard of Proof required on cruelty is based on preponderance of probabilities and not beyond reasonable doubt.
It also depends on lifestyle of parties, their economic status.
After the amendment 1976 –
- Physical cruelty – fact and degree – demand of dowry – its illegal and not paid results in ill treatment of women

Following are the various scenarios which Courts have ruled as being CRUEL or NOT.

Physical violence is not absolutely essential to establish cruelty. Consistent course of conduct inflicting immesuralble mental agony and torture may well constitute cruelty.
A single act of violence which is of grievous nature and is inexcusable may constitute cruelty.
Some incidence of beating if established are more than enough.
A mere plea if other spouse is using filthy and abusive language cannot be expected as proved and establish. Give particulars. – For which inference can be drawn.
Allegation should not only be pleaded but also should be PROVED. Specific incidence of cruelty should be pleaded – Vishnu Shankar pandey course
J Nanda case – some wear and tear of marriage
- Co-habitation cannot be destructed because of different temperament of spouses. It has to be accepted for better or worse. Ordinary instances of cruelty does not amount to cruelty.
Threat to committing suicide – Dastana Case – = Cruelty = pankaj mahajan case.
unnatural sex with wife Vineet joglekar – = cruelty.
Long period of without sex by wife = cruelty – vishwanathan case
Husband proved to be impotent = cruelty
Wife consistently says to live alone with him and not parents = Not cruelty BUT without any justifiable reason still insist then = CRUELTY.
filling of police complaint against husband – SC – Shrinivas Rao – = Not cruelty BUT if the allegation are proved FALSE by court of law then it amounts to CRUELTY.
aborting by wife without consent of husband = cruelty – shama ghose case and suman kapor case.
Loans taken by husband – creditors come and ask for loan = cruelty manpreet verma – husband taking loan in name of wife and not paying
= wife alleged reckless and false allegation against husband and wife = Cruelty
new wedded – cancer or severe hearing loss = cruelty
scandous allegation – against husband and all family members
suman singh – some isolated incident long past – condoned – now filling petition – NO Cruelty
- acts have to be in recurring in nature. Continuous one – proximate to the filling of the case.
other spouce refuses to participate in the proceeeing inspite of the notice being served – considering other allegation of the petition = this itself constitute cruelty = sukidina hidath case.
A persist course or dishonest course – cruelty
Persistent drunkenness and then conduct that inflict pain and misery would amount to cruelty

Manita saxena – unsoundness of mind as a case of cruelty = CRUELTY – but if the conduct is Grave. It is to protect the spouce from further abuse.
Summa Ghosh SC Case on Cruelty – about 14 illustrations have been mentioned

Man is always saying she is listening to her mother – interference by parents – adding fuel to the fire.

Changing thining of the yong – concept of cruelty is also changing –

Every act has to be judged in relation attended circumstances and mental condition of the parties.

Shoba Rani case – new type of cruelty may comeup

Categories of cruelty are not closed – concept of cruelty change with the time. Human conduct and Human Mind gives a preceise what amount to cruelty.

As times are changing we are moving from fault theory to irretrievable breakdown of theory

Naveen Kholi case – started this irretrievable grounds of marriage – in realty the marriage is dead – This ground is not available to the trial court. Only the Supreme court u/s 142 can dissolve marriage on this ground.
Jordon Dingre – Munish Thakar Case 2020

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Car Accident Claims – Negligence Explained

advocate — Mon, 06 Mar 2023 13:17:10 +0000

Motor Accident Claims – Negligence Explained in Detail

Negligence is one of the most basic element that is mentioned by either parties whenever there is a motor accident. For example, A & B met an accident; A claims B was driving recklessly and B claims A was on the wrong side of the road. Both of them claim other being the negligent one causing the accident.

Hence, negligence is the foremost thing that is looked into when deciding the onus of compensation that is to be paid and fixing the responsibility of the accident.

Fixing negligence is easier said then done, for in motor vehicle cases it becomes quite difficult as most of the time both the parties would plead innocence and fix the responsibility of the negligence on the other party.

In the following article, we would be trying to understand –

Negligence – What do we mean by it? Understanding various case laws.
What constitute Negligence?
Classes of Negligence
1. Negligence Simpliciter
2. Contributive Negligence
3. Composite Negligence
4. Self Negligence
Miscellaneous Aspects of Negligence
Doctrine of lost opportunity
Other Issues Related to Negligence

1. Negligence – What do we mean by it? Understanding various case laws.

Negligence has not been mentioned anywhere in the Motor Vehicle Act. It has to understood by going through various Supreme Court of India Case laws that have given meaning to Negligence and have explained in detail as to what constitute negligence.

Case 1 – The Municipal Corporation Of Greater Bombay vs Shri Laxman Iyer And Anr on 27 October, 2003

Negligence is omission of duty caused either by an omission to do something which a reasonable man guided upon those considerations who ordinarily by reason of conduct of human affairs would do or obligated to, or by doing something which a prudent or reasonable man would not do.
Negligence is failure to observe, for the protection of the interests of another person, the degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury. The idea of negligence and duty are strictly correlative.
What constitutes negligence varies under different conditions and in determining whether negligence exists in a particular case, or whether a mere act or course of conduct amounts to negligence, all the attending and surrounding facts and circumstances have to be taken into account. It is absence of care according to circumstances.
To determine whether an act would be or would not be negligent, it is relevant to determine if any reasonable man would foresee that the act would cause damage or not.

Case 2 M.S. Grewal & Anr vs Deep Chand Sood & Ors on 24 August, 2001

Negligence is thus a breach of duty or lack of proper care in doing something, in short, it is want of attention and doing of something which a prudent and a reasonable man would not do . ( Definition given in Blacks Law Dictionary).
Clerk & Lindsell on Torts (18th Ed.) sets out four several requirements of the tort of negligence and the same read as below:
1. (1) the existence in law of a duty of care situation, i.e. one in which the law attaches liability to carelessness. There has to be recognition by law that the careless infliction of the kind of damage in suit on the class of person to which the claimant belongs by the class of person to which the defendant belongs is actionable;
  
  (2) breach of the duty of care by the defendant, i.e. that it failed to measure up to the standard set by law;
  
  (3) a casual connection between the defendants careless conduct and the damage;
  
  (4) that the particular kind of damage to the particular claimant is not so unforeseeable as to be too remote.

3. Classification of Negligence

Negligence is broadly classified into 4 main categories-

Negligence Simpliciter
Contributive Negligence
Composite Negligence
Self Negligence

We would be discussing each one the above in details –

3.1 Negligence Simpliciter

It means that ONLY one party was negligent and because of that negligence other party suffered loss. Its known as negligence per se.
Situations where negligence simpliciter are evoked are following; where doing any of these acts would be termed as NEGLIGENT-
1. Drunk & Driving
2. Overloading
3. Minor driving
4. Driving vehicle without helment
5. Poor maintenance of vehicle
6. Murder happening in course of accident or public place
7. Parking the vehicle in high road
8. Projective arms & elbows outside the window

3.1.2 – Compensation Claim

To Claim the compensation under Negligence Simpliciter one has to rely on Section 166 of Motor Vehicle Act and not Section 140 of the same act.

The burden of proof is on the claimant & he is duty bound to prove the fault of the driver. Case – Minu B. Mehta And Another vs Balkrishna Ramchandra Nayan And … on 28 January, 1977
- Same as above was also held in Oriental Insurance Co. Ltd vs Premlata Shukla & Ors on 15 May, 2007

3.1.3 What kind of evidence is Required u/s 166?

Is it strict proof of evidence like a criminal trial (i.e. proof beyond all reasonable doubt) or preponderance of possibilities?

It was answered in Kusum & Ors vs Satbir & Ors on 2 March, 2011
- Where it was held – its based on preponderance of Possibilities.

3.1.4 Drunk & Driving Case –

This is covered in detail in a separate blog post – .

3.2 – Contributive Negligence

Here, both the parties where either equally or unequally responsible for the accident. For example, A car is parked in No Parking Zone, B Hits the car of A while reversing. Here, both are negligent and compensation has to be divided in ratio of their fault. It might be 50/50 or 70/30, which would depend on other circumstances & has to be decided.

Another example, A driving a bike rashly hits a pedestrian who is drunk and walking haphazardly. They both hit each other. Both are negligent & its a case of Contributive negligence.

Case – T. O. Anthony vs Karvarnan And Others on 1 February, 2008
- It was held there is commensurable reduction in compensation when both victim & driver are negligent. Victim negligent 30% and driver 70%. Then 30% of compensation to be reduced that is payable by driver.
Contributive Negligence if Minor Driving
- Simply that a minor driving there can be NO Finding of contributive negligence there should be a finding that minor contributed to negligence. – held in
Not wearing Helmet – Contributive Negligence
- We know that wearing helmet saves lives. Not wearing one can result a simple minor injury case to a fatal head injury case.
- It has been held that not wearing helmet would automatically contribute to 15% of contributive negligence. Hence, a bike riding without helmet meets an accidence.
- Case – R.Mallika vs A.Babu on 8 June, 2015
3 persons riding in 2 wheeler – no automatic inference of contributive negligence but a casual connection.
Vehicle parked in the ROAD – Case 2018 V6 SCC 765 nishant singh Vs oriental insurance. = but when lorry parked without reflector – total negligence
1. Nishan Singh vs Oriental Insurance Company Ltd. … on 27 April, 2018

3.3 Composite Negligence

This where most people, advocate and even some judges get confused.

Composite Negligence is defined as – where an injury is caused by 2 or more parties and claimant does not know who can be sued.
example – A rides in bus A driving rashly and collides with Bus B which is also driving rashly. A gets hurt. Now, A does not know whom to sue, he can sue either both or either one of them and that one. Has to pay the complete compensation.
Contributory negligence would be between A Bus and B Bus.
In Composite Negligence – there is no fault of victim.

3.3.1 Difference between Composite & Contributory Negligence

This has been elaborately and clearly explained in – Pawan Kumar & Anr vs M/S Harkishan Dass Mohan Lal & Ors on 29 January, 2014

Winfield & Jolowicz on Tort (Chapter 21) (15th Edition, 1998). It would be appropriate to notice the following passage from the said work:-

“WHERE two or more people by their independent breaches of duty to the plaintiff cause him to suffer distinct injuries, no special rules are required, for each tortfeasor is liable for the damage which he caused and only for that damage. Where, however, two or more breaches of duty by different persons cause the plaintiff to suffer a single injury the position is more complicated. The law in such a case is that the plaintiff is entitled to sue all or any of them for the full amount of his loss, and each is said to be jointly and severally liable for it. This means that special rules are necessary to deal with the possibilities of successive actions in respect of that loss and of claims for contribution or indemnity by one tortfeasor against the others. It is greatly to the plaintiff’s advantage to show that that he has suffered the same, indivisible harm at the hands of a number of defendants for he thereby avoids the risk, inherent in cases where there are different injuries, of finding that one defendant is insolvent (or uninsured) and being unable to execute judgment against him. The same picture is not, of course, so attractive from the point of view of the solvent defendant, who may end up carrying full responsibility for a loss in the causing of which he played only a partial, even secondary role.
T. O. Anthony vs Karvarnan And Others on 1 February, 2008
1. In Paragraph 6 & 7
2. “6. “Composite negligence” refers to the negligence on the part of two or more persons. Where a person is injured as a result of negligence on the part of two or more wrongdoers, it is said that the person was injured on account of the composite negligence of those wrongdoers. In such a case, each wrongdoer is jointly and severally liable to the injured for payment of the entire damages and the injured person has the choice of proceeding against all or any of them. In such a case, the injured need not establish the extent of responsibility of each wrongdoer separately, nor is it necessary for the court to determine the extent of liability of each wrongdoer separately. On the other hand where a person suffers injury, partly due to the negligence on the part of another person or persons, and partly as a result of his own negligence, then the negligence on the part of the injured which contributed to the accident is referred to as his contributory negligence. Where the injured is guilty of some negligence, his claim for damages is not defeated merely by reason of the negligence on his part but the damages recoverable by him in respect of the injuries stand reduced in proportion to his contributory negligence.
  
  7. Therefore, when two vehicles are involved in an accident, and one of the drivers claims compensation from the other driver alleging negligence, and the other driver denies negligence or claims that the injured claimant himself was negligent, then it becomes necessary to consider whether the injured claimant was negligent and if so, whether he was solely or partly responsible for the accident and the extent of his responsibility, that is, his contributory negligence. Therefore where the injured is himself partly liable, the principle of “composite negligence” will not apply nor can there be an automatic inference that the negligence was 50:50 as has been assumed in this case. The Tribunal ought to have examined the extent of contributory negligence of the appellant and thereby avoided confusion between composite negligence and contributory negligence. The High Court has failed to correct the said error.”

3.3.2 Liability in Composite Negligence –

Here, as mentioned above is Jointly & Severally – Hence, a claimant is free to choose any vehicle A or B or both to pay compensation. The claimant can sue anyone. One insurance would pay complete compensation and would recover the same from the vehicle owner by filling a separate suit.

Case – Khenyei vs New India Assurnace Co.Ltd.& Ors on 7 May, 2015
- It is a case of composite negligence where injuries have been caused to the claimants by combined wrongful act of joint tort feasors. In a case of accident caused by negligence of joint tort feasors, all the persons who aid or counsel or direct or join in committal of a wrongful act, are liable. In such case, the liability is always joint and several. The extent of negligence of joint tort feasors in such a case is immaterial for satisfaction of the claim of the plaintiff/claimant and need not be determined by the court.

3.3.3 Burdern of Proof in Composite Negligence –

SC Mahindra nath vs mahilarappa 2008 13 s 198 – evidence of driver of colliding vehicle is important.

3.4 Self Negligence

example, A is driving drunk and hits a tree. Causing injury to himself only. This is self Negligence.

There can be no claim petition under 3rd party compensation.
Only under Personal Accident coverage – and even PA coverage is outside 3^rd party coverage.
Case Shivaji vs Divisional Manager United India Insurance on 9 August, 2018
- A claim petition u/s 163A of Motor Vehicle Act is maintainable the insurer cannot raise any defense of negligence on the part of the victim to counter a claim for compensation.
- The above case followed the reasoning mentioned by 3 judges bench that cleared the air about Section 163 A in
  United India Ins.Co.Ltd. vs Sunil Kumar on 24 November, 2017
- What I have understood from the above is – example – A is driving rashly he hits B (a truck) from behind and is killed. Can his heirs claim 3rd party compensation from the insurer of Truck? The answer by the above SC decisions is YES. The heirs of A are liable to get compensation u/s 163A.

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Motor Accident Claims in Uttarakhand – Understanding Liability & Facts

advocate — Mon, 06 Mar 2023 04:59:29 +0000

Motor Accident Claims in Uttarakhand – Understanding Liability & Facts

We all know that most of the accidents happen in roads because of various motor vehicles. Hence, it becomes very important to understand some basic laws liability and facts which would:

entitle you to claim compensation incase of any motor vehicle accident
to ensure that all your papers & responsibilities are in order to secure your liability in case of any accident.

The law related to motor vehicle is mostly governed by The Motor Vehicles Act, 1988 and most of the provisions and law has been clarified by various Supreme court decisions.

In this article we would be covering the following

Transfer of ownership but not of Insurance. – whats the legal position.
3rd Party compensation to vehicle owner – If the owner of the vehicle meets an accident can be claim compensation under his 3rd party insurance agreement?
3rd party compensation to the borrower of car who meets an accident?
Defenses available to the insurance company against the owner of the company and not against the claimant.
claim & Recovery- Insurance company liable to pay 3rd party charges even if there is negligence on the part of the policy holder?
Goods Carrier liability – for person travelling in it and its accident.
Driving License – Which class can drive above or below class of vehicles.
Travelling in Tractor – what’s compensation to be paid for persons who are travelling in tractor
Personal Accident Cover – under which form can you claim this?

1. OWNER OF THE VEHICLE

The most important part from where the liability and facts start in Motor Accidents Claim is Who is the OWNER of the VEHICLE?

Section 2(30) defines who is the owner of the vehicle and is:

owner means a person in whose name a motor vehicle stands registered and where such person is a minor, the guardian of such minor, and in relation to a motor vehicle which is the subject of a hire-purchase, agreement, or an agreement of lease or an agreement of hypothecation, the person in possession of the vehicle under that agreement;

Now, the insurance policy should be issued in the name of the owner of vehicle and indemnifies him against any 3rd party losses.

2. Transfer of ownership but not of Insurance.

What would happen if the owner sells the motor vehicle and the new owner does not change the name under which Motor Insurance is made?

This was answered in AIR 2006 SCC 1576. where it was held the policy runs with the vehicle & the 3rd party liability is covered.
However, if the Insurance policy is NOT transferred, the new owner is not liable to cover own damages to the vehicle charges.
Section 157 applies only to 3^rd party and not Own party damages.

3. 3rd Party compensation to vehicle owner

If the owner of the vehicle meets an accident can he claim compensation under his 3rd party insurance agreement?

Case Name – -> 1998 Supreme Court – Oriental insurance Limited vs Sunita Ratti
THE answer is BIG NO. Only 3^rd Party to the policy of insurance can maintain a claim petition under any provisions of motor vehicle party.
The Owner of the vehicle cannot claim compensation against his own insurance company for his personal injury & fatal accident but can claim damages for car damages.
Other case laws that have reiterated the above are:
1. 2007 SC Oriental Insurance Vs Jhuma Saha
2. Dhanraj Vs New India Assurance
3. Oriental Insurance Vs Rajni Devi 2008
4. New India Insurance Sadanand Mukhi

4. 3rd party compensation to the borrower of car

Example – Ram is owner of vehicle – Laxman borrowed vehicle. Laxman meets accident – can he claim 3^rd party insurance?
1. Answer – That a borrower of a vehicle steps into the shoes of the owner & hence he ceased to be a third party and so claim by a borrower is not maintainable against the insurance company of the owner of the vehicle.
  1. Case laws – neemgamba Vs united India assurance company
  2. Ram kiladi vs united India insurance company Decided on 7 1 2020

5. Can an Insurance company Say NO to claimant because the car driver was at fault i.e. driving without license or any other fault of car driver?

Defenses available to the insurance company against owner of the company NOT against the claimant are enumerated under Sec 149 of Motor vehicle acts = these are operating when there is a valid insurance policy.

These are aimed against the owner of the vehicle what are the consequences. When there is an accident, insurance company check following 3 conditions?
1. Whether there was a policy of insurance at the date of accident?
2. Whether the victim was 3^rd party?
3. Whether his coverage is taken away by operation of law?

If Above 3 conditions are met – Insurance company has to pay the compensation to the claimant.

Now, if there is a suppression of material facts or violation of conditions of the policy, then the insurance company can recover the compensation paid to the claimant from the owner of the vehicle.

See any violation of the condition of the policy – license, permit
Satisfy the award in favor of claimant and recover the compensation from the opwner of the vechicel not by separate by filling EP – Payment & Recovery. Which is mentioned in Section 149.
1. Soransingh case 2004 SC driving license case.

6. Passengers Travelling in Goods Carrying Vehicle – What’s the liablity of Insurance Company?

New india vs Asha Rani overruled sapal singh
1. Section is 147 1.i
2. A passenger traveling in a goods family is not liable for compensation as goods carrier is meant for carrying vehicle.

However, if the owner goods or his authorized representative travels along with the goods. Then company is liable.

National vs baljeet kaur. 6 1 2004
Madras High court – 2009 (1)ctc page 1 –united india insurance company vs nagamal . full bech. Para 31 – Goods carrier – anybody else apart from driver, cleaner, and else mentioned in policy + owner of goods or his authorized representative are covered. ANYBODY else who travels not covered. No compensation and no direction for payment and recovery. Only liability against the owner of the vehicle
1. This is the job the advocate to show that the claimant traveled in goods vehicle in the capacity of driver, cleaner or one that is covered under the policy. Hence, advocate should write the petition in such a way they are withing section 147.

What is the nature of travel that determines whether a company is liable for Goods carrier?
1. India Motor Tariff – rules framed by IRDA & have statutory authority.
2. Persons like driver and other person connected with the operation of loading and unloading of the goods vehicle.

7. Driving License Related Issues –

Driving Licence
1. DL as against the period Vs DL against the type of vehicle.
2. I have a licence to drive LMV can I drive a 2 wheeler? – NO.

LMV and I drive more than 7500 KG of Unladen Weight – license not proper.
1. Insurance company has to pay compensation and recover from the owner.
  1. Orintel Vs Zarunisa 2008 12 SCC 385 – driver had HMV but was driving 2 wheeler
    1. Lience is invalid – company pay – recover from owner.
  2. Owner need not file separate suit and can file EP in the same proceeding
    1. Oriental vs ganchapa – mode of recovery

8. Traveling in a tractor

– Tractor it’s an LMV if its not attached to a trailer but becomes goods vehicle if attached to tailor.

Not meant for travel by passenger.
1. If a person sits in the trailer then it becomes a goods carrier. Claim and recovery can be contemplated.
  1. 2018 (2) shivraj vs rajendra.
  2. The company can say NO. but courts can contemplate.

Important Question –

Wife is the owner of the vehicle – Husband is driving vehicle and meets a fatal accident and is dead. In such a case Wife cannot be claimant – the claimant should be children showing Wife as the 1st respondent and Grand Parents as Guardians of the children.

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Partition Suits in Uttarakhand – The Substantive & the Procedure

advocate — Sun, 26 Feb 2023 05:55:37 +0000

Partition Suits in Uttarakhand – The Substantive & the Procedural Laws

Partition Suits are very complicated suits which involve a through understanding of various personal laws. For Hindu Partition, following acts are required thorough understanding i.e. Hindu Succession Act, Hindu Marriage Acts, Hindu Adoptions & Maintenance Acts, Transfer of Property Act, The Registration Act & the Limitation Act, apart from other acts which cover only the Substantive Laws that govern the Partition.

I have tried to collate here 3 videos, 2 of them by a learned retired Principle Judge of Bengaluru who has more than 40 Years of experience in dealing with Partition Suits and 1 by Senior Advocate of Madras High Court who has 20 Years of legal experience. You can watch them in the sequence provided below and later I have noted down all the important points & the case laws that they have referred to in the videos for easy understanding and recalling.

Video 1- Partition Disputes-Issues and Controversies : Ms. Chitra Sampat, Sr. Advocate, Madras High Court

This is the first & foundation video for anyone interested in laws that govern partition suits. Ma’am, has very beautifully and thoroughly explained various intricate issues & controversies that can arise in partition suits. The lecture covers the following

Concept of Partition
Joint Hindu Family
Nature of properties that are to be partitioned
Quantum of Share
Mesne Profits & Render of Accounts in Partition
Defenses for Defendants
Family Arrangements
Division of Dwelling House
Properties which cannot be divided
Preemptive Rights
How to value a suit for Partition?
Parties to Suit & Appeals

Lecture Notes in Detail

I have tried to compile all the important points mentioned in the lecture along with citations and references to the various case laws mentioned by Ma’am. I have tried to make these notes as exhaustive as possible but it would be best to first listen to complete lecture and then view the following notes for proper understanding for a suit for Partition.

Part 1 – Concept of Partition

A partition suit is not only for ancestral property but also for Joint family property, Inherited property jointly held and Joint venture properties between different members of a partnership firm.

Hindu Joint Family has 3 kinds of joint properties

Ancestral property – those one inherited from forefathers
Coparcenary Property – consists of 3 generation up from the present generation. i.e. grandson, father and grandfather would be 1 Unit of coparcenary property.
Joint Family Property – Properties which are owned by family in Unison and enjoyed in Unison.

What is the nature of Property?

This is the most important point that needs to be taken care of in a suit for partition. As depending on the nature of the property its devolution would depend. Whether the property is self acquired property or ancestral property or property acquired by funds generated from Joint family property. Hence, its very important to determine the nature of properties that are to be partitioned.

The case laws that have helped to determine if it’s a self acquired property or acquired from joint family nucleus are-

2018 (16) SCC (645)
2016 (8) SCC (205)
2019 (10) SCC (259) – Here, it was held that Burden of Proof is on the party that is claiming that he got property from Ancestral property fund. Plaintiff has to prove the availability of Joint family nucleus.
2020 (6) SCC (387) – Burden of Proof.

Further, the nature of property also depends upon the how one has pleaded before the court and what evidence you are bringing before the court.

Quantum of Shares –

In partition suits it depends upon the relationship of the parties. Basically, for a male deceased, leaving behind a wife, 2 sons and 1 daughter . Then this property would be divided into 4 equal parts and of them getting 1/4 part each. i.e. Wife 1/4, First son 1/4, 2nd Son 1/4 & daughter 1/4 part. This is a generic overview.

Mesne Profits & Render of Accounts

In a partition suit, one cannot ask for Mesne Profit as any member of a family is never in an unlawful possession of a property and hence question of Mesne Profits does not arise.

What we ask for is Render of Accounts which is mentioned under Order 20 Rule 18 of Civil Procedure Code.

The Rendering Of Accounts can be asked even at the time of Final Decree & o court can reject it on the grounds that it was not asked at the time of framing of the issues.

Defenses for Defendant in a suit for Partition

Exclusive Possession of Property – The Defendant can take the plea that he is in exclusive possession of the property which is HOSTILE to the other co-owners & that he has OUSTER all the other co-sharers of the properties.
1. It is very difficult in court of law to prove OUSTER & hence should be rarely taken into plea unless you have very strong evidence in your favor.
Partition Suit is not Maintainable –
1. That there was an Oral partition which has happened long ago and the properties are equally divided between co-sharers. The evidence can be shown of individual revenue receipts & deeds & bonds.
2. Division in Notice – Intention to divide the property should be communicated to all other coparceners.
Karta Sold Immovable Properties – To fulfil debts, legal liabilities and meeting expense of daughter marriage. A Karta can sell immovable properties of Joint Family to meet these expenses and its legally valid.
1. To challenge such SALE the limitation period is 3 Years.
2. If the sale has long happened, ignore it & continue with Partition.
Conversion & Disqualification – If someone has converted to another religion then he is no longer a part of Hindu Family and his share is rendered to naught.

Role of 3rd Party Purchaser of a Partitioned Property

All the persons who have purchased property from other coparcener should be included in the suit for Partition.
Will they (3rd party purchaser) get any right? – Yes, they will get equitable allotment of that property from Coparcener share.
Can a 3rd party purchaser ask for Partition? – YES, he can ask for partition of the property.

Notional Partition

It’s governed by Section 6 r/w Section 8 of Hindu Succession Act.

Its a hypothetical division of property as contrived under law.

Can a Minor Coparcener bring a Suit for Partition?

No, a minor cannot bring a suit for partition of property. But, if the father acts fraudulently or takes away or gives away his share unfairly. Then a minor can bring a suit for partition.

Partial Partition

As the name suggests its a partial partition of property where one keeps certain property in common and divide the remaining property.

2nd Suit for partition maintainable when new properties come to knowledge to any member of the family.

Improvements Done to Joint Family Property

All improvements done to a Joint Family properties are to be enjoyed by all. For example, a father has 1 son and 1 daughter. The girl gets married and moves out. The son starts living with his parents and makes improvement in the family property. This act of his would not make him liable for more share in the joint family and the property would be divided equally among son, daughter and wife.

Whether Oral Partition is recognized after 2005 amendment to Hindu Succession Act?

Oral partition is recognized which happened before 2005 amendment.

Case – Vineeta Sharma vs Rakesh Sharma on 11 August, 2020

The above is a very important case law related to Section 6 of Hindu Succession Act and is a must read for advocates practicing partition suits.

Family Arrangement – What is its status?

Whether it requires Registration?- Yes, if it brings about division of properties.
Unregistered Family Arrangement – can be received as corroborative evidence, to check if it was implemented.

Case Laws –

2019 (6) SCC (409) – if Family Arrangement results in division it requires registration u/s 17 & 49 of Registration Act

2018 (14) SCC (814) – it can be relied as collateral status to check if it was implemented

If the family arrangement results in new SHARER then registration is required.
Compromise is reached – No registration is required.

Right of a Father to bring Partial Partition

Yes, he is allowed. Case – 1983 (2) SCC (155)

A property which is lost to family and comes back?

How it is brought back – If it is brought back by own income of a family member then it’s his self acquired property. Case – 2019 (7) SCC (193)

Release for Share

Suppose someone from the family who is well off says I don’t want my share. What should be done?

Let the release be for some consideration or by settlement or sale.
Such release will be for the benefit of all the other sharers.

Division of Dwelling House

Section 23 of Hindu Succession Act deals with this.

Where the sons are living in the same house this house is called the dwelling house. Previously, daughter could not ask for the division of the dwelling house. However, now a married daughter can seek for the division of the dwelling house.

Case – 2017 (1) SCC (257)

It was held that daughters can ask for her share from the dwelling house for residing. But, cannot disturb the possession of sons and if she wants to sell her share she can do it only to her brothers.

Properties Cannot be divided

Sec 2 of Partition Act –

Where properties cannot be divided they can be brought for SALE.

Case – 20009 (13) SCC (569)

2011 (15) SCC (768)

Principle of OWELTY of Section 2 & 3 of Partition Act

Case Laws – 1957 SCC (577)

2015 (12) SCC (659)

2005 (11) SCC (218)

Preemptive Rights

Case – 2008 (15) SCC (610)

Suit for partition – one sharer sells his portion. Then the limitation to bring the suit is 1 YEAR.

Registration of Final Decree

It is not required. But, if you want you can get it registered.

How to value a suit for Partition?

First, plaintiff should always state that they are deemed to in Joint Possession of the properties.
Court Fee to be paid u/s 37(2) of Court Fee act
Even if a 3^rd party is in possession then also court fee need to be paid U/S 37 (2)
Plaint shall define the court fee

Parties to Suit & Appeals

All sharers should be made parties in the 1^st
In Appeal or 2^nd Appeal or in any proceedings – all sharers should be made parties.
Ask for dispense with notice to the respondent who have remained ex party in courts below.
Don’t give up or fail to mention any co-sharers. If you do so the entire proceedings would come to a naught.

There is no Limitation for filing a final decree.

The post Partition Suits in Uttarakhand – The Substantive & the Procedure appeared first on Advocate & Lawyer in Haldwani, Uttarakhand - Abhishek.

Application for Mobile Phone Loss

advocate — Tue, 21 Feb 2023 12:45:08 +0000

Application for Mobile Phone Loss

APPLICATION FOR MOBILE PHONE LOST

Before the Police Station – Kathgodam, Nainital, Uttarakhand

To,

The Police Station Officer,

Kathgodam – Nainital

Date– 21 February 2022

SUBJECT – Regarding loss of mobile phone

Respected Sir/ Madam,

I, (NAME), would like to state as under:

That, I lost my mobile phone on 20 February 2022 while going from Kathgodam railway station to Ranibagh at 1 PM.
That ,the Mobile phone company & model name is Xiaomi Redmi Note 5 Pro
That ,the SIM Cards mobile numbers in the phone are-
1. AIRTEL SIM – 991******
2. BSNL SIM – 941*******
That, the IMEI number of the devise is – 86862*******

In view of the aforesaid truthful facts & circumstances, it is most respectfully prayed that:

I would request you to please register by complaint and if possible help to track the same using the IMEI number provided.
Kindly provide me with the copy of this complaint so that I can have it submitted to the service provider to get a new SIM cards and get my SIM cards blocked and prevent any kind of misuse.

And for this act of kindness, I, NAME, shall ever pray for.

Sincerely,

NAME

Date – 21 February 2022

Address – C/O- **********

Kathgodam – Nainital 263126

The post Application for Mobile Phone Loss appeared first on Advocate & Lawyer in Haldwani, Uttarakhand - Abhishek.

Evidentiary Value of Electronic Records

advocate — Tue, 21 Feb 2023 11:16:51 +0000

Evidentiary Value of Electronic Record

Evidentiary value of Electronic Record – Take an example, A & B are fighting and that scene is being recorded by C with his Mobile phone. Later, A asks C to forward the recording as a piece of evidence against B. C sends the video recording to A via Whatsapp. Can this recording be admissible as a piece of documentary evidence in court of Law?

To answer this question, we need to look into the provision for admissibility of electronic record as a piece of evidence which is governed by Section 65B of Indian Evidence Act which states that –

65B. Admissibility of electronic records.—

(1) Notwithstanding anything contained in this Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer (hereinafter referred to as the computer output) shall be deemed to be also a document, if the conditions mentioned in this section are satisfied in relation to the information and computer in question and shall be admissible in any proceedings, without further proof or production of the original, as evidence of any contents of the original or of any fact stated therein of which direct evidence would be admissible.

(2) The conditions referred to in sub-section (1) in respect of a computer output shall be the following, namely:—

(a) the computer output containing the information was produced by the computer during the period over which the computer was used regularly to store or process information for the purposes of any activities regularly carried on over that period by the person having lawful control over the use of the computer;

(b) during the said period, information of the kind contained in the electronic record or of the kind from which the information so contained is derived was regularly fed into the computer in the ordinary course of the said activities;

(c) throughout the material part of the said period, the computer was operating properly or, if not, then in respect of any period in which it was not operating properly or was out of operation during that part of the period, was not such as to affect the electronic record or the accuracy of its contents; and

(d) the information contained in the electronic record reproduces or is derived from such information fed into the computer in the ordinary course of the said activities.

(3) Where over any period, the function of storing or processing information for the purposes of any activities regularly carried on over that period as mentioned in clause (a) of sub-section (2) was regularly performed by computers, whether—

(a) by a combination of computers operating over that period; or

(b) by different computers operating in succession over that period; or

(c) by different combinations of computers operating in succession over that period; or

(d) in any other manner involving the successive operation over that period, in whatever order, of one or more computers and one or more combinations of computers, all the computers used for that purpose during that period shall be treated for the purposes of this section as constituting a single computer; and references in this section to a computer shall be construed accordingly.

(4) In any proceedings where it is desired to give a statement in evidence by virtue of this section, a certificate doing any of the following things, that is to say,—

(a) identifying the electronic record containing the statement and describing the manner in which it was produced;

(b) giving such particulars of any device involved in the production of that electronic record as may be appropriate for the purpose of showing that the electronic record was produced by a computer;

(c) dealing with any of the matters to which the conditions mentioned in sub-section (2) relate, and purporting to be signed by a person occupying a responsible official position in relation to the operation of the relevant device or the management of the relevant activities (whichever is appropriate) shall be evidence of any matter stated in the certificate; and for the purposes of this sub-section it shall be sufficient for a matter to be stated to the best of the knowledge and belief of the person stating it.

(5) For the purposes of this section,—

(a) infomation shall be taken to be supplied to a computer if it is supplied thereto in any appropriate form and whether it is so supplied directly or (with or without human intervention) by means of any appropriate equipment;

(b) whether in the course of activities carried on by any official information is supplied with a view to its being stored or processed for the purposes of those activities by a computer operated otherwise than in the course of those activities, that information, if duly supplied to that computer, shall be taken to be supplied to it in the course of those activities;

(c) a computer output shall be taken to have been produced by a computer whether it was produced by it directly or (with or without human intervention) by means of any appropriate equipment. Explanation.—For the purposes of this section any reference to information being derived from other information shall be a reference to its being derived therefrom by calculation, comparison or any other process.]

Now, the various court rulings were ambiguous or contradictory to what would amount as primary evidence and secondary evidence under Electronic Records & its admissibility. Now, this position has been settled by the 3 judges bench of the Supreme Court of India in the Year 2020 in Arjun Panditrao Khotkar v. Kailash Kishanrao Goratyal July 14, 2020 SC.

The judgement is beautifully authored by Justice Nariman and have laid to rest any ambiguities regarding admissibility of electronic evidence. The highlights of the judgement are-

Section 65B begins with a non-obstante clause, if forms a complete code for the admissibility of electronic evidence.
Section 65B(4) – certificate is only mandatory if a secondary copy of original is brought into evidence.
Original Electronic Record – Is the device itself that is used for the first time to stored or captured. The secondary copies are made from the primary record.
In the present case – Khotkar case, Hard disk of CCTV would be primary evidence and CD Copies would be secondary evidence.
Certificate under 65B(4) only required when CDs are produced before the court.
The original electronic record can be adduced directly as evidence if the owner of the computer/tablet/mobile phone steps into the witness box and establishes that the device where the information is first stored is owned/operated by him.

The court further understood the difficulties that might arise in getting certificate copies of the secondary evidence and highlighted various sections of Procedural Laws under Evidence Act (Section 165), Civil Procedure Act (Order XVI) & Criminal Procedure Act (Section 91 and Section 349) which empower the Court to order for the production of any document or thing during the course of the trial. It was accordingly stated that a person can in any case make an application to the Judge to order for the production of any ‘document’ that would constitute electronic evidence, if he is unable to obtain the certificate under Section 65B(4).

The Court concluded that the obligation placed by Section 65B(4) was mandatory, and not voluntary, and is a condition precedent before secondary copies of an electronic record can be admitted.

Hence, coming back to our opening example of A & B fight. The video recording done by C would be admitted into evidence only if

C would deposit his phone by which recording was done as evidence. As the phone memory is the original electronic record and dispose before the court that YES, its his phone that he had used to shoot the video of A & B fighting. In such case, a certificate is NOT REQUIRED.
The Whatsapp video sent by C to A can be used as evidence ONLY WHEN it has been certified by competent authority that its content are true.

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Law on Adverse Possession in India

advocate — Sun, 19 Feb 2023 11:30:56 +0000

Law on Adverse Possession

The Law on Adverse Possession has been thoroughly explained the following video by Senior Advocate Ms. Kiran Suri. Please go through the complete video to understand the Law on Adverse Possession.

I have tried to note down the important points from the lecture delivered so that it can help you to revise all the points that have mentioned.

Article on Law of Adverse Possession

The lecture is divided into 7 parts

Concept of Adverse Possession & its origin
Relevant provision which would govern Adverse possession
Which of the acts would amount to adverse possession
Which acts do not amount to adverse possession
Whether a suit can be filed by a person for declaration on the plea of adverse possession
What should be the pleading & what is the burden of proof in cases of adverse possession
Whether such law required a relook

1. Concept of Adverse Possession & its origin

The concept of adverse possession originated keeping in view 3 principles

The title of the land should not be kept in doubt for a long time.
There are competing rights between the paper owner (true owner) & the person who is looking after the property. The rights of person looking for the property should prevail over the rights of the paper owner who had neglected the property.
The person claiming the hostile owner against the true owner & the true owner keeps quiet for a long time i.e. the statutory period which is 12 Years. Then it is presumed that true owner has abandoned his rights in favor of the possessory rights.

2. Relevant provisions which would govern Adverse possession

Adverse possession is not defined anywhere in the statute. It is not a positive right but a negative or consequential right which is based on the negligence or inaction of the part of someone else. Then only this negative right comes into action.

The right of adverse possession needs to be culled from the The Limitation Act.

Section 3 – Bar of limitation.—(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defense.

This provision bars the remedy and not the right.

There is one exception to Section 3 which is Section 27 which talks about the extinguishment of the right.

Section 27 Extinguishment of right to property.—At the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.

After the extinguishment of the right, then someone else can come in. That are provided under Article 64, 65 & 112 of The Limitation Act. Section 112 is against the government which has a limitation period of 30 Years.

The first case related for adverse possession is

In Perry v. Clissold, 4 CLR 374; [1907] AC 73, the privy council stated following:

“It cannot be disputed that a person in possession of land in the assumed character of owner and exercising peaceably the ordinary rights of ownership has a perfectly good title against all the world but the rightful owner. And if the rightful owner does not come forward and assert his title by the process of law within the period prescribed by the provisions of the statute of Limitation applicable to the case, his right is for ever extinguished and the possessory owner acquires an absolute title.”

The above LAW is still a GOOD LAW and has been approved by 3 judges bench of Supreme Court of India in Nair Service Society Ltd vs Rev. Father K. C. Alexander & Ors on 12 February, 1968
The above case law Nair Service Society is a must read for anyone who wants to acquaint with possessory title.

3. Acts which amount to adverse possession

We have to consider 2 separate aspects:

Aspect 1 – The nature of possession must be

Exclusive
Continuous
Uninterrupted
ACTUAL – constructive possession does not give right to adverse possession

Aspect 2 – Your possession has to be HOSTILE to the TRUE OWNER.

ANIMUS POSSIDENDI – is sin qua non. there must be animus to disposes.

If your right against the true owner is not open to the knowledge of the true owner and are not exclusive then your right for adverse possession is not valid.

CASE – Karnataka Board of Wakaf v. Govt of India, AIR 2004 SC 2096

“In the eye of law, an owner would be deemed to be in possession of a property so long as there is no intrusion. Non-use of the property by the owner even for a long time won’t affect his title. But the position will be altered when another person takes possession of the property and asserts a right over it. Adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of true owner. It is a well- settled principle that a party claiming adverse possession must prove that his possession is ‘nec vi, nec clam, nec precario’, that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period.

Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

Therefore, a person who claims adverse possession should show (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

What kind of Enquiry the court should be holding in the case of Adverse possession?

This has been excellently explained inP.T. Munichikkanna Reddy & Ors vs Revamma And Ors on 24 April, 2007 as follows –

Therefore, to assess a claim of adverse possession, two-pronged enquiry is required:

1. Application of limitation provision thereby jurisprudentially “willful neglect” element on part of the owner established. Successful application in this regard distances the title of the land from the paper-owner.

2. Specific Positive intention to dispossess on the part of the adverse possessor effectively shifts the title already distanced from the paper owner, to the adverse possessor. Right thereby accrues in favour of adverse possessor as intent to dispossess is an express statement of urgency and intention in the upkeep of the property.

– following enquires to be done

When he has come into possession
When landlord owner came to about the possession
Whether his possession is HOSTILE
Whether claimed as possessory title

4. Acts which do not amount to adverse possession

1. Permissive possession does not amount to adverse possession. Like keeping poor relative or gardener into your property.. This permissive possession does not become hostile. EXCEPTION – As and when possession becomes hostile to the ownwer then statutory period for adverse possession will start running.

Example, landowner living elsewhere – property was rented out. Tennent was continuously paying rent. One fine day tenant stops paying rent and saying he has purchased the property and the actual owner did not do anything for 12 Years. The time when I stopped paying rent my time for Hostile possession has started. Hence, here permissive possession turns into HOSTILE possession.

2. Cases where 53A of TPA does not amount of adverse possession

Section 53A in The Transfer of Property Act, 1882

1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]

3. Possession of a co-owner can not be said to be adverse –

Co-owner is in possession of the property as a representative of all the owener. He cannot claim that I am in exclusive possession therefore I have perfected my right of adverse possession. BUT, in case the co-owner is in a position to prove that he has outsted the other co-owners. The principle of ouster would apply and then he can claim right to adverse possession.
- Case 1995 (4) SCC (p 496) – Vidya Devi @ Vidya Vati (Dead)By … vs Prem Prakash & Ors on 10 May, 1995
co-owner has to outster the other owers to claim adverse possession.

5. WHETHER A PERSON TAKING A PLEA FOR ADVERSE POSSESION CAN FILE A SUIT FOR DECLRATION

Till the Year 2019, a person with adverse possession could not file a suit for declaration on the basis of Adverse possession.

However, in – Ravinder Kaur Grewal v. Manjit Kaur, AIR 2019 SC 3827: (2019) 8 SCC 729 Here, 3 judge bench of Hon’ble Justice Arun Mishra have held that a person with adverse possession CAN FILE A SUIT FOR DECLARATION

Para 62 – We hold that a person in possession cannot be ousted by another person except by due procedure of law and once 12 years’ period of adverse possession is over, even owner’s right to eject him is lost and the possessory owner acquires right, title and interest possessed by the outgoing person/owner as the case may be against whom he has prescribed. In our opinion, consequence is that once the right, title or interest is acquired it can be used as a sword by the plaintiff as well as a shield by the defendant within ken of Article 65 of the Act and any person who has perfected title by way of adverse possession, can file a suit for restoration of possession in case of dispossession. In case of dispossession by another person by taking law in his hand a possessory suit can be maintained under Article 64, even before the ripening of title by way of adverse possession. By perfection of title on extinguishment of the owner’s title, a person cannot be remediless. In case he has been dispossessed by the owner after having lost the right by adverse possession, he can be evicted by the plaintiff by taking the plea of adverse possession. Similarly, any other person who might have dispossessed the plaintiff having perfected title by way of adverse possession can also be evicted until and unless such other person has perfected title against such a plaintiff by adverse possession. Similarly, under other articles also in case of infringement of any of his rights, a plaintiff who has perfected the title by adverse possession, can sue and maintain a suit.”

6. PLEADING & BURDEN OF PROOF

The pleadings for adverse possession need to be very carefully framed as a wrong or exaggerated pleading can be FATAL to the case.

It is very important in adverse possession to plead what is required to be pleaded and not plead what is not required to be pleaded.

What is required to be pleaded has been elaborately explained in

Karnataka Board Of Wakf vs Government Of India & Ors on 16 April, 2004

Physical fact of exclusive possession and the animus possidendi to hold as owner in exclusion to the actual owner are the most important factors that are to be accounted in cases of this nature. Plea of adverse possession is not a pure question of law but a blended one of fact and law.

Therefore, a person who claims adverse possession should show

(a) on what date he came into possession,

(b) what was the nature of his possession,

(c) whether the factum of possession was known to the other party,

(d) how long his possession has continued, and

(e) his possession was open and undisturbed.

A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession.

WHAT NOT TO BE PLEADED?

YOUR right to adverse possession commence only and only if it is hostile to the true owner. So, if you are pleading adverse possession in alternative i.e. you got the property by GIFT and even if that’s not true then you have perfected your title by adverse possession is FATAL to the case.

T. Anjanappa And Ors vs Somalingappa And Anr on 22 August, 2006

The above case in which the person who filed the suit actually disputed the ownership of the true owner. The court said if you are not sure of the true owner, then question of hostile possession dos not apply and you are out of it.

Inconsistent Pleading or pleading in alternative is not permissible in ADVERSE POSSESSION. However, there is an exception as mentioned in case – L.N. Aswathama And Anr vs P. Prakash on 21 April, 2009

facts of the case – A is a tenant under B. A purchased from B. C files a suit against B you have no title, that suit is pending. A files suit that I have purchased property from B. But if B is not true owner, then I have perfected my title as way of adverse possession. In such case pleading in alternate is allowed.

BURDERN OF PRROF

The burden starts with the true owner to proof that he is the real owner of the property by showing various documentary evidence. After he is proved this, the burden shifts to the HOSTILE OWNER to prove that he is in possession of land beyond the statutory period which was known to the true owner that it is HOSTILE to him and he did not do anything within the statutory period.

7. Does the law needs a relook

The scholars have mentioned that the law of adverse possession is a legalized way of land theft. Where a true owner has been bereft of his property because of his some inaction.

Case 1 – Hemaji Waghaji Jat vs Bhikhabhai Khengarbhai Harijan & … on 23 September, 2008

Para 34 Before parting with this case, we deem it appropriate to observe that the law of adverse possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.

Case 2 – State Of Haryana vs Mukesh Kumar & Ors on 30 September, 2011

para 47 – Adverse possession allows a trespasser – a person guilty of a tort, or even a crime, in the eyes of law – to gain legal title to land which he has illegally possessed for 12 years. How 12 years of illegality can suddenly be converted to legal title is, logically and morally speaking, baffling. This outmoded law essentially asks the judiciary to place its stamp of approval upon conduct that the ordinary Indian citizen would find reprehensible.

Hence, we can see the Law of Adverse Possession having divergent views and a need expressed by Supreme Court to rethink the existing law.

The post Law on Adverse Possession in India appeared first on Advocate & Lawyer in Haldwani, Uttarakhand - Abhishek.

Rights of Arrested Persons

advocate — Sun, 29 Jan 2023 12:48:35 +0000

Rights of Arrested Person

The Criminal Procedure Code (CrPC) provides various safeguards to any person who is being arrested by police. These are mentioned under various sections of CrPC which are mentioned below –

Section 41B(c) – Right to inform his friend or relative of arrest.
Section 41D – Right to meet an advocate of his choice.
Section 49 – Right not to be unnecessarily handcuffed.
Section 50 (1) – Person arrested to be informed of grounds of arrest.
Section 50(2) – Person arrested to be informed about right to bail.
Section 54 – Right to be medically examined
Section 56 – Right to be produced before magistrate without delay.
Section 57 – No detention beyond 24 hours.

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