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The Bombay High court upheld the legality of the share distribution and computation 

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CASE TITLE- Kamlakar Purushotam Inamdar and others Vs Smt. Rajani Shriram Madiwale and others

CASE NUMBER- Second Appeal No.335 Of 2015

DATED ON- 14.06.2024

QUORAM- Hon’ble Justice Sharmila U. Deshmukh, J.

FACTS OF THE CASE

The plaintiff sought partition and the suit properties were owned by the propositus Purshottam Govind Inamdar who expired on 16th August 1971 leaving behind him surviving as his legal heirs his wife Rukminibai, sons Arvind and Kamlakar and the Plaintiffs who are the daughters. In the year 1981 their mother Rukminibai expired and after her death the Plaintiffs are entitled to 1/4th share in the suit properties. The Plaintiff Nos 1, 2 and 3 got married in the year 1952, 1955 and 1971 respectively and thus were not entitled to claim 1/4th share in the property. The Defendants contented that there had been a partition in 1981, which the Plaintiffs denied. The Defendants claimed the properties had been divided, with Gat No. 149 allotted to Defendant No. 1 and the Padali properties to Arvind. The Plaintiffs and other Defendants disagreed, leading to various depositions about the ancestral and self-acquired nature of the properties and the validity of the alleged 1981 partition.

ISSUES RAISED

  • Whether the finding of the 1st Appellate Court that the suit property was the self-acquired property is based on misreading of the evidence on record and the evidence which has come on record?
  • Whether on proper appreciation of the evidence the Plaintiff can be stated to have discharged the burden of proving that the suit properties are the self-acquired properties?
  • Whether the Courts have properly interpreted amended Section 6 of the Hindu Succession Act, 2005, while granting equal share to the Plaintiffs?

LEGAL PROVISIONS

  • Section 6 of Hindu Succession Act 1956
  • Section 8 of Hindu Succession Act 1956.

CONTENTIONS OF THE APPELLANT

Learned counsel for appellants submitted that the property at Padali was ancestral property and out of the income of ancestral property, property at Kashidwadi has been purchased. The Plaintiffs did not plead about the nature of properties in the plaint. The Appellate Court erred in holding that there was no controversy about the nature of the properties. The evidence on record is more than sufficient to demonstrate that there was dispute between the parties as regards the property at Kashidwadi whereas the accepted case was that the property at Padali is joint family property. It was contented that the Appellate Court has held the properties to be self-acquired properties and thereby given equal share to the parties which suffers from perversity. It is submitted that by application under Order 41 Rule 27 of CPC which is filed in the present proceedings the death certificate of Indira is annexed which shows the date of death prior to 2005. It is submitted that if the property at Kashidwadi is held to be the self-acquired property the same would devolve upon the parties in accordance with the intestate succession and in accordance with general rules of succession as per Section 8 of Hindu Succession Act 1956.

CONTENTIONS OF THE RESPONDENT

Based on the facts produced during the trial, the respondent in this matter claims that the lower court correctly classified the properties, Kashidwadi and Padali, as ancestral and self-acquired, respectively. They contend that in figuring out the characteristics of these properties and the parties’ rights, the lower court correctly used the Hindu Succession Act, 1956. The respondent argues that the appellant’s objection to this classification is without merit and is predicated on an incorrect rea

ding of the relevant legal precedents and supporting data. They further contend that the lower court’s computation of the shares was precise and compliant with all relevant regulations, especially the Hindu Succession (Amendment) Act, 2005. The respondent highlights that the lower court appropriately determined the parties’ rights, including the rights of the departed ancestor Indira, and ensured an equal division in accordance with the laws governing succession. As a result, the respondent rejects the appeal and aims to maintain the lower court’s rulings about the division of property, shares, and the application of pertinent laws.

COURT’S ANALYSIS AND JUDGEMENT

The court considered the appeal in the context of the 1956 Hindu Succession Act, paying special attention to the 2005 modifications. After much deliberation, it was determined that Padali was ancestral and Kashidwadi was a property that Purushotam had self-acquired. In order to determine whether the properties were correctly classified, the court carefully examined the evidence. It dismissed the appellant’s argument and confirmed the lower court’s ruling that Kashidwadi was self-acquired and Padali was ancestral. The court upheld the allocation of shares made by the lower court in accordance with the Hindu Succession Act of 1956. It was determined that each of the plaintiffs and defendant No. 1 was entitled to a 7/36th stake in Padali, while the defendants Nos. 4 through 6 were entitled to a 7/36th share jointly, and the defendants Nos. 7 and 8 to a 1/36th share collectively. The court upheld the legality of the share distribution and computation.

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Judgement Reviewed By- Shreyasi Ghatak

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Supreme Court quashed the entire proceeding of money recovery based on unethical transactions

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CASE TITLE- Deepak Kumar Shrivas & Anr. Appellant(S) Versus State of Chhattisgarh & Ors.

CASE NUMBER- Criminal Appeal No. Of 2024 @ Special Leave Petition (Crl.) No. 9800 Of 2023

DATED ON- 19.02.2024

QUORUM- Hon’ble Justice Vikram Nath and Hon’ble Justice Satish Chandra Sharma

FACTS OF THE CASE

The appellant made a complaint alleging that the respondent no.6 had allured the appellant that she would secure a job for his brother as she had good contacts with higher officers and demanded substantial amount for doing this favour. The appellant paid Rs. 80,000/- cash at the first instance. Later on an additional demand was made and the appellant, he has deposited about Rs. 20,000/- and odd in different bank accounts. When no job was provided to his brother, he approached the respondent no.6 for returning the money paid by him upon which she threatened him of false implication and started avoiding him. The report made by superintendent of police showed that both the parties were accusing each other of having extracted money for securing job for their relatives. It appears that the appellant had taken about Rs.4 lacs from her for securing a job for her daughter and no job was provided by the appellant to her daughter moreover, the appellant and respondent failed to produce the relevant documents. The respondent filed an FIR against the appellant accordingly. The appellant filed a petition under Article 226 of the Constitution before the High Court of Chhattisgarh for quashing the FIR and the proceedings arising therefrom. The said petition has since been dismissed by the impugned order giving rise to filing of the present appeal.

LEGAL PROVISIONS

No statute or legal provisions were referred before the court of law for reaching the ultimate decision.

CONTENTIONS OF THE APPELLANT

Learned counsel for the appellant submitted that an enquiry was conducted in which similar allegations against each other were made by both the sides which were not found to be substantiated and, therefore, lodging of the impugned FIR after about one year of the said enquiry, is mala fide and an abuse of the process of law. Further, the impugned FIR has been maliciously lodged only to resist the appellant from recovering the amount paid by him to the respondent no.6. It is also submitted that the FIR has been after more than three years and, therefore, on the ground of delay, the alleged FIR deserves to be quashed.

CONTENTIONS OF THE RESPONDENT

Learned counsel for the respondents have submitted that the investigation must be allowed to continue and if ultimately the police report is submitted finding the appellant prima facie guilty of the charge on the basis of the evidence collected during the investigation, the appellant would have adequate remedy of assailing the charge sheet and also claiming discharge at the stage of framing of charges. There is no justification for scuttling the investigation which may ultimately not only deprive the respondent no.6 of her money but also the offence committed by the appellant would go unpunished. It was also submitted that it was a clear case of cheating as the appellant had deceitfully induced the respondent no.6.

COURT’S ANALYSIS AND JUDGEMENT

The court observed that, respondent no.6 was well aware of the complaint made by the appellant. Despite the same she did not lodge any complaint against the appellant and his brother and waited for more than a year to lodge the FIR. The entire material was totally an unlawful contract between the parties where money was being paid for securing a job. The police should exercise caution when drawn into dispute pertaining to such unethical transactions between private parties which need investigations. The criminal prosecution should not be allowed to continue where the object to lodge the FIR is not for criminal prosecution and for punishing the offender for the offence committed but for recovery of money under coercion pressure. Accordingly, the court set aside the impugned order passed by the High Court and quashed the entire proceedings.

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Judgement Reviewed By- Shreyasi Ghatak

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Moratorium Defense Fails Again: Supreme Court Case Highlights Dispute Over Order XXXVII Memo.

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CASE TITLE – Anish M. Rawther @ Anees Mohammed Rawther v. Hafeez Ur Rahman & Ors.

CASE NUMBER – Civil Appeal No. 4120 of 2024

DATED ON – 14.06.2024

QUORUM – Justice Vikram Nath & Justice Prashant Kumar Mishra

 

FACTS OF THE CASE

This appeal has been preferred by the appellant/defendant challenging the Order passed by the High Court of Karnataka on 21st March, 2022 in Writ Petition No. 10975 of 2020 (GM-CPC) whereby the High Court allowed the writ petition and set aside the Order dated 07th March 2020 passed by the Trial Court in Com. OS No. 1026 of 2018 and further directed the Trial Court to accept the memo dated 14th November 2019 which was submitted by the respondents/plaintiffs. The respondents/plaintiffs preferred a suit under Order XXXVII of Code of Civil Procedure, 1908 (henceforth ‘CPC’) against the appellants/defendants for recovery of Rs. 1,04,16,576/- with interest. The appellants/defendants entered appearance and filed application seeking leave to defend which was allowed by the Trial Court on 19th June 2019 with a direction to the appellants/defendants to deposit 50% of the suit claim. The said order was challenged before the High Court in Writ Petition No. 28349 of 2019 which was dismissed on 08th August 2019 against which an SLP (C) No. 20626 of 2019 was preferred by the appellants/defendants which came to be dismissed on 06th September 2019. The appellants/defendants had argued that in view of Section 14 of the Insolvency and Bankruptcy Code, 2016 (henceforth ‘IBC’), the moratorium has become operational, therefore, the suit cannot proceed. This argument was not accepted by the High Court and under the impugned order, the Trial Court was directed to accept the memo and pass appropriate orders.

 

ISSUE

Whether the Trial Court should accept the memo filed by the plaintiffs (respondents) under Order XXXVII of the Code of Civil Procedure, 1908.

LEGAL PROVISIONS

  1. Order XXXVII of the Code of Civil Procedure, 1908 (CPC), deals with suits filed under the Summary Procedure. It allows plaintiffs to obtain a decree quickly if they have a strong case and the defendant has no real defense.
  2. Section 14 of the Insolvency and Bankruptcy Code, 2016 (IBC), with the moratorium period that applies when a company is undergoing insolvency resolution.

 

COURT ANALYSIS AND JUDGEMENT

The Hon’ble Supreme Court noted that they had also passed an order on 01st December, 2023 staying the impugned order, however, much prior to the interim order of the same Court, the suit itself was decided finally by passing a decree on 20th April, 2023. It was not brought to the Court’s notice that the said decree had been challenged any further by the defendants. Thus, the Hon’ble Supreme Court concluded that for the present, the suit is not pending, and therefore, the present appeal which arises out of an interim order passed by the Trial Court during pendency of the suit, has now been rendered infructuous. The Civil Appeal was then accordingly, dismissed as infructuous.

 

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Judgement Reviewed by – Gnaneswarran Beemarao

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“Maintaining Secularism” – Bombay High Court Backs College Dress Code Banning Hijabs.

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On Wednesday, the Bombay High Court noted that the dress code of a Mumbai institution, which forbids students from donning hijab, nakab, burka, stole, caps, and other items, is in the greater academic benefit of the students.  Nine female students from NG Acharya and D. K. Marathe College of Art, Science, and Commerce filed a writ case challenging the dress code, which was dismissed by a division bench of Justices AS Chandurkar and Rajesh S Patil.

The Bombay High Court also referred to the Full Bench decision of the Karnataka High Court in Resham v. State of Karnataka which maintained a government decree establishing a dress code that forbade the wearing of hijabs. The Karnataka High Court ruled in that case that the dress code did not violate any basic rights because it was intended to treat students as a homogeneous class in support of constitutional secularism. The Supreme Court is currently considering a challenge to the Karnataka High Court’s decision, following the division bench’s October 2022 split decision.

The petitioners, who are enrolled in their second and third year of undergraduate studies, contested the dress code, arguing that it infringes upon their fundamental rights to forbid the wearing of headscarves, burkas, stoles, caps, and other items on campus. Students are supposed to dress in a formal, respectable manner that does not indicate their religion in accordance with the contested dress code. The court stated that all students are subject to the clothing code in question, regardless of their language, caste, creed, or religion. It went on to state that the college administration was entitled to basic management powers, which included setting the dress code.

“We do not find as to how these guidelines and instructions are violated by the Instructions issued by the College. On the contrary, the Policy on Code of Ethics laid down by the Management of the College seeks to enforce the aforesaid guidelines and instructions”, the court stated, along with, “We are in respectful agreement with the view expressed by the Full Bench that prescription of a dress code is intended to achieve uniformity amongst students in the school/college so as to maintain discipline and avoid disclosure of one’s religion.”

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Written by – Gnaneswarran Beemarao

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Legal Battle Over College Dress Code: Mumbai High Court Upholds Ban on Hijabs and Burkas

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BACKGROUND

Nine Students pursuing their second and third year education for undergraduate courses at the College run by the first respondent – Chembur Trombay Education Society have raised a challenge to the Instructions issued to students requiring them to follow the prescribed dress code. In addition, a notice-cum-WhatsApp message dated 01/05/2024 issuing instructions in the matter of following the dress code is also under challenge. The petitioners allege that the prescription of dress code as a result of which they are restrained from donning a Hijab or Nakab is arbitrary and discriminatory. It affects their fundamental rights guaranteed especially under Article 19(1)(a) and Article 25 of the Constitution of India. According to the petitioners, prescription of dress code for the first time after they took admission at the College couple of years ago is against the spirit of the University Grants Commission (Promotion of Equity in Higher Educational Institutions) Regulations, 2012, the Rahistriya Uchhastar Shiksha Abhiyan – RUSA as well as the National Education Policy, 2020. While seeking admission to the second and third year undergraduate course for the Academic Sessions 2024-25, they learnt about the aforesaid Instructions on 07/05/2024. They raised an objection to the same by addressing e-mail to the College and the Management. Thereafter, they made a complaint before the Hon’ble Chancellor as well as other Authorities concerned. By urging that imposition of the dress code would affect their right to education, they have approached the Supreme Court.

Shri Altaf Khan, the learned Counsel for the college students, argued that the college’s newly prescribed dress code unjustifiably prohibited Muslim students from wearing hijabs or nakabs, labelling such attire as indecent while permitting other formal and decent dresses for students. He asserted that this restriction infringed on the students’ rights to expression, dignity, and bodily integrity under Article 19(1)(a) of the Constitution of India. The counsel claimed that the dress code was discriminatory, violating the provisions of the Maharashtra Public Universities Act, 2016, and contradicting the inclusiveness intended by various regulations. He cited several judgments, including those from the Indian Supreme Court and international courts, to substantiate his contention that the dress code should be quashed. Furthermore, he argued that wearing a hijab or nakab is an essential religious practice, and prohibiting it violated the petitioners’ rights under Articles 14 and 19(1)(a).

Shri Anil Anturkar, the learned Senior Advocate for the Education Society, opposed the petitioners’ contentions, stating that the college’s dress code instructions did not violate the students’ rights under Articles 19(1)(a) and 25 of the Constitution. He clarified that the college did not issue the notice-cum-WhatsApp message dated 01/05/2024, but only implemented the dress code instructions, which applied uniformly to all students without targeting any particular religion. The dress code aimed to ensure that students’ religions were not revealed, thereby maintaining discipline and focus on studies. The college provided a changing room for female students’ comfort and argued that it had the legal authority to prescribe a dress code as part of its internal administration and discipline. Referring to the Karnataka High Court’s ruling in Resham v. State of Karnataka, which stated that wearing hijabs or nakabs was not an essential religious practice, Anturkar emphasized that the dress code did not infringe on constitutional rights. He noted that the petitioners knew of the dress code before enrolling and questioned their motives, suggesting they sought media attention. Therefore, he argued, the petition lacked merit and should be dismissed.

UPDATE

The division bench of Justice AS Chandurkar and Justice Rajesh S Patil of The Bombay High Court on Wednesday observed that the dress code prohibiting students from wearing hijab, nakab, burka, stole, cap etc. on the campus of a Mumbai college is in students’ larger academic interest. The Bombay High Court, referencing previous similar cases and judgments, upheld the college’s dress code. The court emphasized that the dress code was intended to achieve uniformity among students, maintaining discipline and supporting the administration’s efforts. It cited the Karnataka High Court’s decision in Resham v. State of Karnataka, which upheld a government order prescribing a dress code excluding hijabs, and other cases where similar challenges to dress codes were dismissed. The court referred to several previous judgments, including the Bombay High Court’s own ruling in Fathema Hussain v. Bharat Education Society and the Kerala High Court’s decision in Fatima Thanseem (Minor) v. State of Kerala. Both cases upheld the institutions’ rights to prescribe dress codes.  The court noted that there was insufficient pleading to support the claim that wearing hijabs or nakabs constituted an essential religious practice. The court dismissed the writ petition, supporting the college’s dress code as a measure that did not violate the students’ fundamental rights. The court found the dress code to be in line with UGC regulations and other educational policies aimed at promoting a non-discriminatory environment.

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Written by – PRATYASA MISHRA

 

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