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6 Jan

Legal Heir of the Deceased daughter entitled to equal share of wealth in accordance to 2005 amendment to the Hindu Succession Act: Karnataka High Court

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Title: Channabasappa v Smt Parvatevva alias Kasturevva

Citation: W.P No. 105363 of 2023

Dated on: 18.12.2023

Corum: Justice Sachine Shankar Magadum

Facts of the case

In this present case the petitioner Mr. Channabasavappa has filed a petition arguing the nature of section 6 of the Hindu Succession Act and whether it is prospective or retrospective in nature. And claims that the provisions of the act are not made retrospectively by the legislature.

In the current case Ms Nagavva and Ms Sangavva are legal heirs (Daughters) of Ms Rudrappa Hosamani who demised before the 2005 Amendment of the Hindu Succession Act. Hence her legal Heirs are present before court seeking their rights in equal share of their mother’s wealth.

Now the High Court of Karnataka looks into the wider interpretation of the amendment made in 2005 though the Vinnetha Sharma case. In the Apex case of Vineetha Sharma v Rakesh Sharma, the apex court ruled that a daughter possess the right to claim for her own share in the joint Hindu family property even if the partition of the family took place before 9^th September 2005.

Petitioner further claims that the rights under the amendment Act are only applicable to the living daughters of the living coparcener as on 9.9.2005 irrespective of when such daughters are born.

But as per the law laid down by the Apex Court in the case of Vineeta Sharma what emerges is that in view of amendment to Section 6 of the Act, daughter would step into the coparcenary as that of a son by taking birth before or after the Act. As the right is by birth and not of inheritance, it is irrelevant that a coparcener whose daughter is conferred with the rights is alive or not. Therefore, what emerges from the above said principle is that Hindu Succession (Amendment) Act, 2005, has virtually damaged the concept of Mitakshara coparcenary because daughter is treated like a son and she is entitled for a share on par in a coparcenary by birth.

Legal Provision

The application filed by the petitioner in final decree proceedings under Section 152 of CPC is clearly hit by the bar under Section 97 of CPC.

Section 97 of CPC clearly provides that where any party is aggrieved by a preliminary decree passed after the commencement of the Code does not appeal from such decree, he shall be precluded from disputing its correctness in final decree proceedings. Modification of preliminary decree is permissible only on the ground of changed or supervening circumstances or change in law.

Even on this count, the application filed under Section 152 of CPC seeking modification is not at all maintainable. Petitioner having failed to question the preliminary decree cannot seek amendment by having recourse to Section 152 of CPC.

Court Analysis and judgement

The Court sought to address these conflicting views and provide a clear and consistent legal interpretation to ensure uniformity in matters of inheritance for daughters and referred to the judgement of the Vinneth Sharma case and upheld that the daughter must be treated as the coparcener right from birth and can be inferred that even in case when the daughter is not alive during the amendment to the Hindu Succession act, her legal heirs can not be deprived of the benefit of the 2005 Act. As the right is by birth and not by dint of inheritance, it is irrelevant that a coparcener whose daughter is conferred with birth rights is alive or not. Therefore, even if a daughter passed away before the 2005 amendment to the Hindu Succession Act, her legal heirs cannot be denied the benefits of the amendment and the court in the present case dismissed the petition.

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Written by- Namitha Ramesh

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6 Jan

Excess recovery made by the Department is subject to verification: Supreme Court of India

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Uncategorized # Recovery, #judgement, #SupremeCourt

Case Title: State of Uttar Pradesh & Anr. v. M/s. Vivo Mobile India Private Ltd. & Ors.

Case No: Petition(s) for Special Leave to Appeal (C) No(s). 27106/2023

Decided on: 4^th January, 2024

CORAM: THE HON’BLE MRS. JUSTICE B.V. NAGARATHNA & HON’BLE MR. JUSTICE AUGUSTINE GEORGE MASIH

Facts of the Case

In the instant case, the scheme was between March, 2020 to August, 2020, the respondents had sought benefit or extension of the scheme only by one month, that is, September, 2020. The High Court of Judicature at Allahabad has recorded that the respondent(s) herein would be entitled to interest at the rate of 6% per annum on the amount of excess recovery of Rs.11,00,69,010/- from the date of the excess recovery to the date of its actual refund. Learned A.S.G. pleaded that there is no excess recovery made by the Department.

Issue

Whether there is excess recovery of Rs.11,00,69,010/- along with interest at the rate of 6% per annum from the date of the excess recovery to the date of its actual refund made by the Department?

Court’s analysis and decision

The Hon’ble Supreme Court of India has recorded that whether there is excess recovery of Rs.11,00,69,010/- along with interest at the rate of 6% per annum from the date of the excess recovery to the date of its actual refund made by the Department is subject to verification and in the event, there is any excess recovery, the direction of the High Court of Judicature at Allahabad shall prevail. Hence, the special leave petition is dismissed.

Written by- Afshan Ahmad

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5 Jan

Increasing the retirement age for coastal guard staff to 60 has to be reassessed by the central government: Madras High Court

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Case Title: Lakshmichandra Harishchandra Sharma v Union of India and Another

Case No: W.P. Nos.415, 947, 901 and 766 of 2021

Decided on: 23^rd November, 2023

CORAM: THE HON’BLE MR. SANJAY V. GANGAPURWALA, CHIEF JUSTICE AND THE HON’BLE MR. JUSTICE D. BHARATHA CHAKRAVARTHY

Facts of the Case

The issue concerns a number of petitions that Coast Guard personnel filed contesting Rule 20(1) of the Indian Coast Guard Rules 1986’s constitutionality. The petitions also challenge a Ministry of Defence regulation that denied raising the retirement age of Coast Guard members from the present 57 years to 60 years. The petitioners contended that the Coast Guard’s 57-year-old retirement age was unwarranted, citing the Delhi High Court’s decision in Dev Sharma v. Indo Tibetan Border Police and Others (2019), which raised the retirement age to 60 for other Central Paramilitary Forces (CAPFs). The petitioners’ main point is that there doesn’t seem to be any logic to distinguishing officers below the rank of commandant from those above in terms of retirement age.

In response, the administration cited Article 33 of the Constitution and claimed that any law that allowed for discriminatory treatment would be upheld by the constitution. The Centre provided additional support for its position by claiming that the Coast Guard Rules were created in accordance with the authority provided by Coast Guard Act of 1978 Section 123(2)(E). The government further emphasized that the Seventh Pay Commission’s suggestion of a uniform retirement age of 60 for all CAPFs had an impact on the Delhi High Court’s ruling, noting that the Pay Commission was not contacted by the Coast Guard to request an age enhancement. The government contended that rather than imposing its opinions on the Court, it should respect the respondent’s knowledge and experience, especially when it comes to issues involving the military services.

Legal Provisions

The main sections involved in the case are Rule 20(1) of the Indian Coast Guard Rules 1986 pertaining to the retirement age of members of the Coast Guard and is at the core of the dispute. The government relies on Article 33 to argue that if any law provides for differential treatment, it would be constitutionally valid. This article empowers the Parliament to restrict or abrogate certain rights of members of the armed forces in the interest of the sovereignty and integrity of India. The government justifies the framing of Coast Guard Rules under Section 123(2)(E) of the Coast Guard Act.

Issues

Does Rule 20(1) of the Indian Coast Guard Rules 1986, along with the Ministry of Defense’s order refusing to enhance the retirement age of Coast Guard members to 60 years, violate constitutional principles, considering the applicability of Article 33 of the Constitution and the powers exercised under Section 123(2)(E) of the Coast Guard Act 1978?

Courts analysis and decision

The Central Government has been directed by the High Court to reconsider the decision to raise the retirement age of all Coast Guard employees from 57 to 60 years old. This decision follows the court’s reversal of a Defense Ministry directive that had denied a request for an extension of the retirement age made by Coast Guard members below the level of commandant. The court gave members the freedom to provide arguments and supporting documentation in support of their request, emphasizing the significance of reevaluating the decision. It noted that the Seventh Pay Commission had not issued any explicit directives to the Indian Coast Guard, and it emphasized the Delhi High Court’s doubts about the Center’s justifications for categorization. It also stated that a comprehensive investigation was required to ascertain whether the different retirement age is compliant with Articles 14 and 16 of the Constitution.

The Center’s argument supporting the age classification based on administrative and offshore duties was questioned by the High Court. The Delhi High Court’s 2019 precedent for a uniform retirement age of 60 and the Coast Guard’s resemblance to other Central Armed Police Forces (CAPFs) were noted by the court as lacking consideration in the rejection ruling. The court emphasized that before reaching a definitive conclusion about any constitutional article violations, the Centre must carefully consider how the Coast Guard differs from other CAPFs. Ultimately, the court threw out the contested order and recommended that the Centre reevaluate the retirement age matter, considering the unique conditions of the Coast Guard and attending to the issues brought up throughout the legal process.

Written by- Rupika Goundla

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5 Jan

Custodial interogation is necessary for advocates accused of serious crimes: Bombay High court

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Uncategorized #Bombay HC, #Forgery, #Law report, #Legal News, #murder

Title: Hiral Chandrakant Jadhav Vs The State of Maharashtra

Citation: ANTICIPATORY BAIL APPLICATION NO.3699 OF 2023

Coram: Justice SARANG V. KOTWAL

Date: 03/01/24

Facts

The Applicant, who is an Advocate, is seeking anticipatory bail in connection with a serious offense. The Applicant was approached by a person whose husband was arrested under IPC Section 302. The Applicant assured the release on bail for a fee of Rs.65,000.The Advocate claimed her husband was granted bail, accepted Rs. 25,000 more, handed over a sealed envelope with alleged documents, but the husband was not released. After receiving the payment, the Applicant claimed that the bail was granted, but the documents provided were incomplete. The Applicant repeated this process, even providing a fake bail order, and the person realized they were deceived, leading to the filing of the FIR. The Applicant is now anticipating arrest.

Laws Involved

Section 302 of IPC

Punishment for murder

Section 420

Cheating and dishonestly inducing delivery of property

Section 465

Punishment for forgery

Issues

Whether the Applicant, engage in fraudulent activities by allegedly taking money for securing bail, and deceiving the informant in connection with a criminal case?

Judgement

The accused, an advocate, has been found by the court to have committed major offenses, including violating Section 420 of the IPC, which have damaged the victim’s reputation and undermined the integrity of the legal system. The court highlights the seriousness of the crime and the necessity of questioning suspects while they are in custody in order to find possible accomplices and similar situations. Thus, as a result court rejects the application, stating that no mercy can be awarded at this time.

Written by:- Sanjana Ravichandran

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5 Jan

Dismissal of companies appeal in compensation case, commissioner Upholds penalty: Bombay High court.

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Uncategorized #Agreements, #Bombay HC, #law, #Legal Report, #workmen

Commissioner upholds penalty, dismisses company’s appeal in compensation case: Bombay HC

Title: Shipping Corporation of India Limited Vs Mr. Dasu M. Kutty

Citation: FIRST APPEAL NO. 708 OF 1996

Coram: Justice M.M. SATHAYE

Date: 05/01/24

Facts

The case involves a compensation claim by Mr. Dasu M. Kutty, who worked as a seaman for the Appellant since 1958. Mr. Kutty was employed by the Appellant from 1958 until his retirement. He filed a claim for benefits for injuries caused while working, claiming in particular 1991 chest problems that required by-pass surgery and rendered him unfit to serve in the maritime industry. The claimant contended that his hard work while serving on the ship affected his pre-existing heart disease. The claim was opposed by the employer, who denied the claim of a lifelong damage and denied any hard and stressful work. The Employer Shipping Corporation of India Limited has filed an appeal under Section 30 of the Workmen’s Compensation Act, 1923, challenging a judgment from 13.02.1996. In that decision, the company was directed to pay the deceased Claimant’s family compensation of Rs. 3,16,688/- with 6% interest from 14.07.1991. Additionally, a penalty of Rs. 75,000/- and costs of Rs. 1000/- were imposed. The widow and daughter of the deceased Claimant are now pursuing the case.

Laws Involved

Section 30 of the Workmen’s Compensation Act, 1923.

“An order awarding as compensation a lump sum whether by way of redemption of a half- monthly payment or otherwise or disallowing a claim in full or in part for a lump sum”. This means that instead of receiving compensation in regular installments, the injured worker or their dependents can opt to receive a one-time lump sum amount.

N.M.B. Agreement

It refers to the National Maritime Board Agreement, which typically governs terms and conditions of employment for seafarers in the maritime industry, including provisions related to compensation and benefits in case of injuries or disabilities.

Issues

Whether the Claimant’s entitlement to 100% disability compensation under the N.M.B. Agreement, is sustainable?

Judgement

After reviewing, The Appellant argued that a penalty should not have been imposed, citing the absence of such provision in the N.M.B. Agreement. However, the Commissioner for Workmen’s Compensation, while not contested for jurisdiction, justified the penalty and interest under the Act due to non-payment of compensation since 1991. The judgment upheld the Commissioner’s decision, pointing to laws allowing penalties for late compensation, and the appeal was rejected without any additional costs.

Written by:- Sanjana Ravichandran

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