The Consumer Protection Bill, 2018


Highlights of the Bill

Hiba – Gift under Muslim Law

Introduction –

In Muslim law, gifts are called “hiba”. The gifts in India are governed by Transfer of Property Act, 1872. However, the provision of Transfer of Property Act, 1872 does not apply to Muslim law. The English term, ‘gift’ is of a wider connotation and applies to all transactions where one transfer’s one’s property to another without any consideration. The term hiba has a narrow meaning.

According to Ameer Ali, “A hiba is a voluntary gift without consideration of property or the substance of thing by one person to another so as to constitute the done the proprietor of the subject-matter of the gift.” Muslim law allows a Muslim to give away his entire property by a gift inter-vivos, even with the specific object of disinheriting his heirs. [Abdul vs. Ahmed, (1881) 8 IA 25]

Essentials of a Hiba

According to Ameer Ali, a hiba will be valid if the following conditions are fulfilled:-

  1. The manifestation of the wish to give on the part of the donor,
  2. Acceptance of the gift, express or implied, by the done, and
  3. Taking of possession of the subject-matter of the gift by the donee, either actually or constructively. [Jamela vs. Abdul Rahman, 2001 Guj. 175]

Capacity to make a Hiba

Mental capacity – Every Muslim, male or female, married or unmarried, who has attained the age of majority and who is of sound mind has the mental capacity to make a gift. The rule of Muslim law of majority, i.e. attainment of puberty, does not apply to gifts. A person of unsound mind can make a valid gift during lucid intervals. The Muslim law-givers recognize the doctrine of ikrash or compulsion, and a gift-deed executed under compulsion is not valid. In such a case the gift is voidable, and it can be avoided by the donor whose consent was so obtained.

Financial capacity – The Malikis hold the view that a person under insolvent circumstances or extremely involved circumstances have no capacity to make a gift. On the other hand, the Hanafis hold the view that insolvency does not create an incapacity to make a gift, but the kazi has the power to render such gift nugatory if it is made with a view to defrauding the creditors. The Indians court follow the Hanafi view. In every gift, there must be a bona fide intention on the part of the donor to transfer property to the donee.  And, if a gift is made with an intention to defraud the creditors, the gift I invalid. [Abdul vs. Mir Md, (1886) 11 IA 10]  

Subject-matter of Gift

All forms of property over which dominion could be exercised, or anything which could be taken into possession, or which could exist as a specific entity, or as an enforceable right, maybe the subject-matter of a valid gift. Muslim law, in this context, makes no distinction between ancestral or self-acquired or between movable and immovable property.

Gift of Musha

The word “musha” means an undivided share or part of a property, movable or immovable. Among the Shafis and Ithana Asharis, the gift of musha is valid, if the donor withdraws his dominion and allows the donee to exercise control. [Sadiq vs. Hashim, (1916) 43 IA 212]

But the rule is otherwise among the Hanafis. The general rule is thus laid down in the Hedaya, “A gift of a part of a thing which is capable of a division is not valid unless the said part is divided off and separated from the property of the donor, but a gift of an indivisible thing is valid.”

The doctrine of musha has been subject to much criticism. It has been said that the doctrine is “wholly unadapted to a progressive society”. [Sheikh Md. vs. Zabeda, (1889) 16 IA 205] The doctrine has been confined to within the strictest rules by judicial interpretation and has been cut-down considerably.

Donee

Under the Muslim law, a gift may be made to any person without any distinction of age, sex or religion. Under the Hanafi law, the donee must be must be legally in existence at the time of hiba. Thus, a gift to an unborn person, one not in existence, either actually or presumably, is invalid. Under the Shia law, a gift to an unborn person can be validly made provided the gift commences with a person in existence.

Formalities: Delivery of Possession

Under Muslim law, a gift may be made orally or in writing, irrespective of the fact whether the property is movable or immovable. [Ibrahim vs. Noor Ahmed, 1984 Guj. 126] The only formality that is essential for the validity of a Muslim gift is “taking a possession of the subject-matter of gift by the done either actually or constructively”. [Mohammed vs. Fakr, (1922) 49 IA 195]

Who can Challenge a Hiba or Gift

A stranger cannot challenge the validity of a gift on the ground that the gift is bad as no delivery of possession has been made. A gift on this ground can be challenged only when the issue is raised between the donor or those claiming under him on one side and the done and those claiming under him on the other.

Conditional or Contingent Hiba or Gifts

The contingent or conditional gifts are those which are made dependent for their operation upon the occurrence of a consistency. A contingency is a possibility, a chance, an event, which may or may not happen. In Muslim law, contingent or conditional gifts are void.

In Muslim law, a gift is not rendered invalid, by involving an invalid condition. Hanafi law clearly lays down that in such a case the gift is valid and the condition is valid.

Under Shia law, if the conditions attached to a gift is subsidiary, then both the gift and the condition are valid.

Revocation of Gifts

Although there is a tradition which indicates that the Prophet was against the revocation of gifts, it is a well-established rule of Muslim law that all voluntary transactions, including gifts, are revocable.

Modes of Revocation

  1. Revocation of gifts before the delivery of possession
  2. Revocation of gifts after the delivery of possession

Revocation of gifts before the delivery of possession

Under Muslim law, all gifts are revocable before the delivery of possession is given to the done. The fact of the matter is that under Muslim law no gift is complete till the delivery of possession is made, and therefore, in all those cases where possession has not been transferred, the gift is incomplete. The revocation of such a gift, therefore, merely means that the donor has changed his mind and does not want to complete it by the delivery of possession.

Revocation of gifts after the delivery of possession

Mere declaration of revocation by the donor, or institution of a suit, or any other action, is not sufficient to revoke a gift. Until a decree of the court is passed revoking the gift, the donee is entitled to use the property in any manner, he can also alienate it. [Mahboob vs. Abdul, 1964 Raj 250]

The revocation of a gift is a personal right of the donor, and, therefore, a gift cannot be revoked by his heirs after his death. A gift can also not be revoked after the death of the donee. (There are some exceptions in Hanafi School)A


References:

  1. Aqil Ahmad, Mohammedan Law, 23rd Edition
  2. Dr. Paras Diwan, Muslim law in Modern India, 12th Edition
  3. M. Hidayatullah, Mulla Principle of Mohammedan Law, 19th Edition
  4. SCC Online
  5. Supreme Court Words and Phrases, 3rd Edition, Eastern Book Company

What is the difference between a will and a gift in Muslim law?

Definition of will:
Baillie:

A will a conferment of rights property in a specific thing or a profit or an advantage or in gravity to take effect on the death of the testator.
Fatawa alamgiri:
Will is a legal declaration of the intention of a testator with respect to his property which desires to be carried into effect his death.

Definition of gift (Hibba):
Hedaya:

A hibba is a transfer of Tengible property without consideration.
Fyzee:
It is the immediate and unqualified transfer of the corpus of the property without any return.

Difference between gift and will:
I. As to completion:

Will is aecuted after the death of the testator.
Gift is completed during the life time of the donor.
II. As to condition:
Will is dependent upon a condition i.e. the death of the testator.
Gift is operated immediately.
III. As to revocation:
Will can be revoked at any time before the death of testator.
Gift after the delivery of the possession is usually irrevocable.
IV. As to limitation:
In will the right of making a will is limited in two ways.
In gift the right of donor to gift is unrestricted.
V. As to existence of subject matter:
It is not necessary that subject matter of the will must be exist at the time of making will.
The subject of gift must be in existence at the time of making gift.
VI. As to delivery of possession:
Delivery of possession is not required in the will.
In a gift there must be delivery of the possession of the property to the donee.
VII. As to doctrine of mushaa:
The doctrine of Mushaa has no application in case of will.
The doctrine of Mushaa is applicable in case of gift.
VIII. As to acceptance:
In will acceptance by the legatee in not necessary.
In gift acceptance by the legatee in necessary.
IX. As to registration:
Registration of will is optional.
Gift must be registered under the registration act.
X. As to insanity:
The subsequent insanity of the testator makes the will void.
Gift after the delivery of the possession is irrevocable on the ground of insanity.
XI. As to consideration:
A will is always without consideration.
In some case there is consideration in gift.

The gift is the transfer of property which is made immediately and without any exchange by one person to another will is dependent upon a condition lies the death of the testator. the gift and will are two different things under Islamic law.

Criminal court inherent powers

Andhra High Court
C. Subramanyam vs C. Sumathi And Anr. on 17 October, 2003
Equivalent citations: 2003 (2) ALD Cri 905, I (2004) DMC 456
Author: Bilal Nazki
Bench: B Nazki, K Bhanu

JUDGMENT Bilal Nazki, J

1. This is the reference made by a learned Single Judge of this Court on 12.2.2002 in respect of order dated 19.7.2001 passed by the learned Judicial First Class Magistrate, Pakala in Crl. M.P. No. 798 of 2001 in M.C. No. 5 of 2000.

2. The brief facts that are necessary for answering the present Reference are that the first respondent herein filed a petition seeking to set aside the order dated 4.10.2000 whereunder the maintenance petition filed by her in M.C. No. 5 of 2000 was dismissed for default. She filed the said maintenance petition against her husband. When the case came up for hearing on 4.10.2000 for her non-appearance, the Court dismissed the maintenance petition for default. She filed a petition seeking restoration of the maintenance petition on the ground of ill-health. Her husband contended that no medical certificate in support of the claim of ill-health was filed and the default order could not be set aside. After hearing both sides, the learned Magistrate allowed the petition placing reliance on the decision reported in the case of Smt. Prema Jain v. Sudhir Kumar Jain, 1980 Cr.L.J. 80. Against the said order, the husband filed Crl. R.C. No. 984 of 2001 which came up before the learned Single Judge.

3. The learned Judge, after considering the decisions of various High Courts and for the reasons mentioned in the reference order, is of the view that having regard to the fact that the trend of judicial decision appears to be that an application for maintenance dismissed for default, can be restored and the Magistrate can entertain an application for setting aside the default order and pass appropriate orders thereon. Since this view is contrary to the view of this Court in Abdul Waked v. Hafeez Begum and Ors., 1986 (2) APLJ 200, the learned Single Judge is of the opinion that the judicial discipline requires that the matter should be referred to the Bench consisting of two Judges to have an authoritative pronouncement in the matter. The Reference is accordingly posted before us.

4. We have heard the learned Counsels for both sides and also taken the assistance of Senior Advocate, Mr. C. Padmanabha Reddy as amicus curiae. The short point that falls for consideration before us is whether the Magistrate is having inherent powers to restore a petition for maintenance, which was dismissed for default.

5. According to the learned Single Judge that when the Magistrate has no power to dismiss the application filed under Section 125 for default and pass an illegal order, by dismissing the petition for default that is to say, he has no power to rectify the mistake and the illegal order passed by him should be perpetuated would result in miscarriage of justice and the Court should rectify its own mistake as seen from the principle “actus curiae neminem gravabit”. It is also observed that . the Apex Court was of the view that the proceedings under Section 488 of the Code of Criminal Procedure (old Code) are of civil nature vide Mst. Jagir Kaur and Anr. v. Jaswant Singh, .

In Abdul Wahed’s case, it is held as follows :

“The Trial Court is not empowered to pass an order dismissing the application for default and much less the application for setting aside the default order cannot be entertained. It is obvious that the Trial Court has no power to pass a default order. The revision has been filed before the Sessions Court against the order declining to set aside the ex parte order and restore the same on file. The Magistrate has no power to pass default order or set aside such ex parte order and the Sessions Court invoking the revisional jurisdiction cannot clothe such power with the Magistrate in the absence of provision to that effect in the Criminal Procedure Code. Though the revision petition before the Sessions Court is confined to the order declining to set aside the ex parte order the Sessions Court under the powers vested in revisional jurisdiction is justified in setting aside the original order dismissing the application for default. The Sessions Court has ample power under revisional jurisdiction to revise any illegal order passed by the Subordinate Court and need not be fettered by the subject-matter in the revision petition. Considering from this perspective the order of the Sessions Court is sustainable. Revision petition dismissed.”

6. A perusal of the above decision shows that the Trial Court is not empowered to pass an order dismissing an application for maintenance for default, much less an application for setting aside the default order cannot be entertained. To the same effect is the decision reported in the case of Shyamta v. Smt. Dangra and Anr., 1980 All.L.J., 135, wherein it is held as follows :

“A Criminal Court cannot even review its judgment or order. It can only correct clerical or arithmetical errors. Section 488(6) contemplates only one situation in which restoration of an order passed under Section 488Cr.P.C. can be done. It is only when an ex parte order has been passed against a husband, this remedy is not available to a wife who files a petition for maintenance. The learned Sessions Judge was wrong in holding that the Magistrate could have restored her application in the exercise of inherent powers. As held in the case of Krishna Rao Paine v. Pramila Bai, (1976 Crl. L.J. 1819) (All), Magistrate has no power under Section 561A to order restoration. The inherent powers are possessed only by the High Court. The proceedings may be of a quasi-judicial nature but that does not mean that the Magistrate dealing with them gets all the powers of a Civil Court. In Hakimi Jan Bibi v. Monze AH, (1905 (2) Crl. LJ 213) a Division Bench of the Calcutta High Court had held that the law does not empower a Magistrate to rehear an application for maintenance under Section 488Cr.P.C. dismissed for non-appearance. I respectfully subscribe to this view. A wife whose application for maintenance has been dismissed for default can file a second application and on this ground also the question of restoration of previous application does not arise”

7. From the above decisions, it is clear that the Criminal Court has not conferred with the power to review its own judgment, but it can only correct clerical or arithmetical errors therein. To the same analogy, it is pertinent to quote the observations of the Apex Court in A.S. Gauraya v. S.N. Thakur, , which reads as follows:

In B.D. Sethi v. V.P. Dewan, , a Division Bench of the Delhi High Court held that a Magistrate could revive a dismissed complaint since the order dismissing the complaint was not a judgment or a final order. In para 9, the Court observes as follows: ‘9. As long as the order of the Magistrate does not amount to a judgment or a final order there is nothing in the Criminal Procedure Code prohibiting the Magistrate from entertaining a fresh application asking for the same relief on the same facts or from reconsidering that order. During the course of the proceedings, a Magistrate has to pass various interlocutory orders and it will not be correct to say that he has no jurisdiction to reconsider them….’.

We would like to point that this approach is wrong. What the Court has to see is not whether the Codeof Criminal Procedure contains any provision prohibiting a Magistrate from entertaining an application to restore a dismissed complaint, but the task should be to find out whether the said Code contains any provision enabling a Magistrate to exercise an inherent jurisdiction which he otherwise does not have. It was relying upon this decision that the Delhi High Court in this case directed the Magistrate to recall the order of dismissal of the complaint. The Delhi High Court referred to various decisions dealing with Section 367 (old Code) of the Criminal Procedure Code as to what should be the contents of a judgment. In our view, the entire discussion is misplaced. So far as the accused is concerned, dismissal of a complaint for non-appearance of the complainant or his discharge or acquittal on the same ground is a final order and in the absence of any specific provision in the Code, a Magistrate cannot exercise any inherent jurisdiction.

For our purpose, this matter is now concluded by a judgment of this Court in the case of Bindeshwari Prasad Singh v. Kali Singh, . We may usefully quote the following passage at page 126 (of SCR) : (at p. 2433 of AIR):

‘…….. Even if the Magistrate had any jurisdiction to recall this order, it could have been done by another judicial order after giving reasons that he was satisfied that a case was made out for recalling the order. We, however, need not dilate on this point because there is absolutely no provision in the Criminal Procedure Code of 1898 (which applies to this case) empowering a Magistrate to review or recall an order passed by him. Criminal Procedure Code does contain a provision for inherent powers, namely, Section 561-A which, however, confers these powers on the High Court and the High Court alone. Unlike Section 151 of Civil Procedure Code, the Subordinate Criminal Courts have no inherent powers. In these circumstances, therefore, the learned Magistrate had absolutely no jurisdiction to recall the order dismissing the complaint. The remedy of the respondent was to move the Sessions Judge or the High Court in revision. In fact, after having passed the order dated 23.11.1968, the Sub-Divisional Magistrate became functus officio and had no power to review or recall that order on any ground whatsoever. In these circumstances, therefore, the order even if there be one, recalling order dismissing the complaint was entirely without jurisdiction. This being the position, all subsequent proceedings following upon recalling the said order would fall to the ground including order dated 3.5.1972, summoning the accused which must also be treated to be nullity and destitute of any legal effect. The High Court has not at all considered this important aspect of the matter which alone was sufficient to put an end to these proceedings. It was suggested by Mr. D. Goburdhan that the application given by him for recalling the order of dismissal of the complaint would amount to a fresh complaint. We are, however, unable to agree with this contention because there was no fresh complaint and it is now well settled that a second complaint can lie only on fresh facts or even on the previous facts only if a special case is made out. This has been held by this Court in Pramatha Nath Taluqdar v. Sdaroj Ranjan Sarkar, . For these reasons, therefore, the appeal is allowed. The order of the High Court maintaining the order of the Magistrate dated 3.5.1972 is set aside and the order of the Magistrate dated 3.5.1972 summoning the appellant is hereby quashed’.”

8. Though the above decision is not directly on the point, but it clearly provides that the subordinate Criminal Courts have no inherent powers in recalling the order. A contra view is taken by a Division Bench of Punjab and Haryana High Court in Kamla Devi v. Mehma Singh, 1989 Crl. L.J. 1866, wherein it is held that :

“There is no provision in Chapter 9 of Code of Criminal Procedure dealing with the application for grant of maintenance of wives, children and the parents, but to dismiss such application for non-appearance of the petitioner. Since such applications are not to be equated with criminal complaint which necessarily ought to be dismissed for non-appearance of the complainant in view of Section 256of Code of Criminal Procedure, it is only in the exercise of inherent power of the Court that for non-appearance of the petitioner, the application under Section 125 of the Code is dismissed. If that is so, there is no reason why there should not be inherent power with the Court to restore such applications dismissed in default on showing sufficient cause by the petitioner for his non-appearance.”

9. To the same effect, the decision reported in the case of S.K. Alauddin v. Khadiza Bibi, 1991 Crl. L.J. 2035, wherein a learned Single Judge of the Calcutta High Court has held as follows :

“Following the decision of the Supreme Court reported in 1963 SC 1521, I hold that instant proceedings before me under Section 125, Cr. P.C. is a proceeding of a civil nature in which the Magistrate can invoke the inherent powers to recall his earlier order finally disposing the proceeding of this nature provided sufficient grounds are shown.”

10. In another decision reported in the case of Smt. Prema Jain v. Sudhir Kumar Jain (supra), a learned Single Judge of the Delhi High Court has held that as below :

“The order in the present case was of administrative nature, rather than the judicial one and the Magistrate cannot be held to be incapable of reviewing or reversing the same. This view finds strength in the provision following Section 125, in the same chapter which entitles the Court to alter or review or to cancel its judicial orders.”

11. Firstly, we deal with the maxim of equity, namely “actus curiae neminem gravabit” which means an act of Court shall prejudice no man. This maxim is founded upon justice and a Good Sense, which serves safe and certain guidelines for the administration of law.

12. After disposal of the main petition on 4.10.2000, there was no lis pending in the Court of Judicial First Class Magistrate, Pakala. Crl. M.P. No. 798 of 2001 was preferred under Section 126(3) of the Code of Criminal Procedure praying for restoration of M.C. No. 5 of 2000 which was dismissed for default.

Section 126(3) reads as follows :

“The Court in dealing with applications under Section 125 shall have power to make such order as to costs as may be just.”

This provision relates to imposition of costs to the successful parties in order to compensate for the costs incurred. So, this provision does not confer any power to the Magistrate to recall the order dated 4.10,2000. The maintenance proceedings stood terminated by that date and the case was disposed of. There is no provision in the Code to restore the application under Section 125Cr.P.C. which was dismissed for default. In the absence of specific provision, the maxim has no application as there is no Us pending in the Trial Court. Section 362 of the Cr.P.C. mandates that no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error. This section is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specfic statutory provision becomes functus officio and disentitled to entertain a prayer with the same relief unless formal order of final disposal is set aside by the Court of competent jurisdiction in a manner prescribed by law. The Court becomes functus officio the moment a final order disposing of the case is signed. In the new Section 362 of the Code of Criminal Procedure which was drafted keeping in view of the recommendations of 41st Report of the Law Commission and the Joint Select Committees appointed for the purpose, has extended the bar of review not only to the judgment, but also to the final order other than the judgment. This provision applies to any order or judgment disposing of the case under Criminal Procedure Law. Though the proceedings under Section 125 are in the nature of civil proceedings, that does not mean Section 151 of CPC would apply. Therefore, any order passed under Section 125 of Code of Criminal Procedure is subject to Section 362 of Cr.P.C. Though the order passed by the learned Judicial Magistrate of First Class is illegal, but he cannot rectify it under the guise of review. It can be corrected only by invoking revisional jurisdiction by the concerned Court as contemplated under the Code. Therefore, in our view, entertainment of the Miscellaneous Petition after disposal of the main case and restoration of the main case by the learned Judicial First Class Magistrate, Pakala are unwarranted and not referable to any statutory provision. In support of our view, a decision reported in the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v. Mohan Singh, , may be quoted, wherein it has clearly been laid down that once a judgment has been pronounced by a High Court either in exercise of its appellate or revisional jurisdiction, no review or revision can be entertained against that judgment, as there is no provision in the Code of Criminal Procedure which would enable the High Court to review the same or to exercise revisional jurisdiction. In the same way, the subordinate Criminal Courts have no inherent power to invoke under Section 482 of Cr.P.C. which vests such power only with High Courts. There is no provision in the Cr.P.C. which would enable the learned Magistrate to review or recall the order dated 4.10.2000.

13. In view of the above discussion, we hold that, firstly a Magistrate has no power to dismiss a petition under Section 125Cr.P.C. for default, and secondly, for any reason, if it is dismissed, the said Court will become functus officio and it has no power to set aside the default order, the earlier order is illegal notwithstanding. In such a case, the affected party has to take recourse to the revisional jurisdiction as contemplated under the Code of Criminal Procedure.

inherent powers of Criminal court

Supreme Court of India
Minu Kumari And Anr vs The State Of Bihar And Ors on 12 April, 2006
Author: A Pasayat
Bench: Arijit Pasayat, S.H. Kapadia
           CASE NO.:
Appeal (crl.)  420 of 2006

PETITIONER:
Minu Kumari and Anr.

RESPONDENT:
The State of Bihar and Ors.

DATE OF JUDGMENT: 12/04/2006

BENCH:
ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T (Arising out of (SLP (Crl.) No. 4607 of 2003) ARIJIT PASAYAT, J.

Leave granted.

Challenge in this appeal is to the legality of order passed by a learned Single Judge of the Patna High Court rejecting the petition filed by the appellants in terms of Section 482 of the Code of Criminal Procedure, 1973 (in short the ‘Code’).

Factual position in essence is as follows:

On the written report of informant Dhrup Narain Dubey, father of respondents 2 and 3 case for alleged commission of offences punishable under Sections 341323 and 435 read with Section 34 of the Indian Penal Code, 1860 (in short the ‘IPC‘) was registered vide Raghunath Pur P.S. case No.7/99 dated 20.8.1999. It was alleged that accused persons named in the FIR assaulted the informant and others. However, the police after investigation submitted charge sheet wherein three of the ladies accused were found to be not involved in the case. The police submitted charge sheet only against Harendra Dubey and Sheo Kumar Dubey. The charge sheet was placed before the learned Chief Judicial Magistrate (in short the ‘CJM’) who by his order dated 15.2.1999 took cognizance of the offence and directed issuance of processes against accused Sheo Kumar Dubey, Harendra Dubey, and appellants Minu Kumari and Runjhun Kumari on the ground that there is a prima facie case against them for the offences punishable u/s 341, 323 and 435 read with Section 34 IPC. The learned CJM also ordered for issuance of summons and made over the case to the court of Judicial Magistrate, 1st Class for favour of disposal.

However, on behalf of appellants Minu Kumari and Runjhun Kumari a petition was filed before the Court of learned CJM praying therein that due to clerical error the names of the appellants have also been mentioned in the order dated 15.2.1999 and cognizance was also taken and issuance of summons was also ordered so far as they are concerned. The learned CJM on the above petition got a miscellaneous case No.37/99 registered and by order dated 5.5.1999 he called for the record from the court of the Magistrate, where the Trial No.795/1999 was pending. The learned CJM heard learned counsel for the appellants and ordered to strike of their names.

The order passed by learned CJM was assailed before learned First Additional District and Sessions Judge, Siwan who set aside the order holding that the learned CJM did not have any power, muchless inherent power to recall or review his order. With reference to Section 362 of the Code it was held that the Court is not empowered to alter the judgment save as otherwise provided by the Code or by any other law for the time being in force. It was further held that the order passed by learned CJM amounted to review. Accordingly, the order passed by learned CJM was set aside.

Appellants questioned correctness of the order by filing a petition under Section 482 of the Code which came to be dismissed on the ground that the Subordinate Court could not have recalled its own order under Section 362 of the Code on the pretext that there was correction of clerical and arithmetical errors.

In support of the appeal, learned counsel for the appellants submitted that approach of the High Court is clearly erroneous. Even if it is conceded for the sake of argument that the Subordinate Court could not have recalled or review its order, on the facts of the case the High Court should have exercised power under Section 482 of the Code. In spite of service of notice respondents 2 and 3 have not entered appearance.

Learned counsel for the State of Bihar submitted that technically the learned 1st Additional District and Sessions Judge was correct. But the High Court should have exercised power under Section 482 of the Code.

In Abhinandan Jha and another v. Dinesh Mishra (AIR 1968 SC 117), this Court while considering the provisions of Sections 156(3)169178 and 190 of the Code held that there is no power, expressly or impliedly conferred, under the Code, on a Magistrate to call upon the police to submit a charge sheet, when they have sent a report under Section 169 of the Code, that there is no case made out for sending up an accused for trial. The functions of the Magistracy and the police are entirely different, and the Magistrate cannot impinge upon the jurisdiction of the police, by compelling them to change their opinion so as to accord with his view. However, he is not deprived of the power to proceed with the matter. There is no obligation on the Magistrate to accept the report if he does not agree with the opinion formed by the police. The power to take cognizance notwithstanding formation of the opinion by the police which is the final stage in the investigation has been provided for in Section 190(1)(c).

When a report forwarded by the police to the Magistrate under Section 173(2)(i) is placed before him several situations arise. The report may conclude that an offence appears to have been committed by a particular person or persons and in such a case, the Magistrate may either (1) accept the report and take cognizance of the offence and issue process, or (2) may disagree with the report and drop the proceeding, or (3) may direct further investigation under Section 156(3) and require the police to make a further report. The report may on the other hand state that according to the police, no offence appears to have been committed. When such a report is placed before the Magistrate he has again option of adopting one of the three courses open i.e., (1) he may accept the report and drop the proceeding; or (2) he may disagree with the report and take the view that there is sufficient ground for further proceeding, take congnizance of the offence and issue process; or (3) he may direct further investigation to be made by the police under Section 156(3). The position is, therefore, now well-settled that upon receipt of a police report under Section 173(2) a Magistrate is entitled to take cognizance of an offence under Section 190(1)(b) of the Code even if the police report is to the effect that no case is made out against the accused. The Magistrate can take into account the statements of the witnesses examined by the police during the investigation and take cognizance of the offence complained of and order the issue of process to the accused. Section 190(1)(b) does not lay down that a Magistrate can take cognizance of an offence only if the Investigating Officer gives an opinion that the investigation has made out a case against the accused. The Magistrate can ignore the conclusion arrived at by the Investigating officer and independently apply his mind to the facts emerging from the investigation and take cognizance of the case, if he thinks fit, exercise of his powers under Section 190(1)(b) and direct the issue of process to the accused. The Magistrate is not bound in such a situation to follow the procedure laid down in Sections 200 and 202 of the Code for taking cognizance of a case under Section 190(1)(a) though it is open to him to act under Section 200 or Section 202 also. [See M/s. India Carat Pvt. Ltd. v. State of Karnataka and another (AIR 1989 SC 885)].

The informant is not prejudicially affected when the Magistrate decides to take cognizance and to proceed with the case. But where the Magistrate decides that sufficient ground does not subsist for proceeding further and drops the proceeding or takes the view that there is material for proceeding against some and there are insufficient grounds in respect of others, the informant would certainly be prejudiced as the First Information Report lodged becomes wholly or partially ineffective. This Court in Bhagwant Singh v. Commnr. of Police (1985 (2) SCC 537) held that where the Magistrate decides not to take cognizance and to drop the proceeding or takes a view that there is no sufficient ground for proceeding against some of the persons mentioned in the First Information Report, notice to the informant and grant of opportunity of being heard in the matter becomes mandatory. As indicated above, there is no provision in the Code for issue of a notice in that regard.

We may add here that the expressions ‘charge-sheet’ or ‘final report’ are not used in the Code, but it is understood in Police Manuals of several States containing the Rules and the Regulations to be a report by the police filed under Section 170 of the Code, described as a “charge-sheet”. In case of reports sent under Section 169, i.e., where there is no sufficiency of evidence to justify forwarding of a case to a Magistrate, it is termed variously i.e., referred charge, final report or summary. Section 173 in terms does not refer to any notice to be given to raise any protest to the report submitted by the police. Though the notice issued under some of the Police Manuals states it to be a notice under Section 173 of the Code, though there is nothing in Section 173 specifically providing for such a notice.

As decided by this Court in Bhagwant Singh’s case (supra), the Magistrate has to give the notice to the informant and provide an opportunity to be heard at the time of consideration of the report. It was noted as follows:-

“….the Magistrate must give notice to the informant and provide him an opportunity to be heard at the time of consideration of the report…”

Therefore, the stress is on the issue of notice by the Magistrate at the time of consideration of the report. If the informant is not aware as to when the matter is to be considered, obviously, he cannot be faulted, even if protest petition in reply to the notice issued by the police has been filed belatedly. But as indicated in Bhagwant Singh’s case (supra) the right is conferred on the informant and none else.

When the information is laid with the Police, but no action in that behalf is taken, the complainant is given power under Section 190 read with Section 200 of the Code to lay the complaint before the Magistrate having jurisdiction to take cognizance of the offence and the Magistrate is required to enquire into the complaint as provided in Chapter XV of the Code. In case the Magistrate after recording evidence finds a prima facie case, instead of issuing process to the accused, he is empowered to direct the police concerned to investigate into offence under Chapter XII of the Code and to submit a report. If he finds that the complaint does not disclose any offence to take further action, he is empowered to dismiss the complaint under Section 203 of the Code. In case he finds that the complaint/evidence recorded prima facie discloses an offence, he is empowered to take cognizance of the offence and would issue process to the accused. These aspects have been highlighted by this Court in All India Institute of Medical Sciences Employees’ Union (Reg.) through its President v. Union of India and others (1996 (11) SCC 582). It was specifically observed that a writ petition in such cases is not to be entertained.

The above position was highlighted in Gangadhar Janardan Mhatre v. State of Maharashtra and Ors. (2004 (7) SC 768).

Section 362 of the Code, as noted above, permits correctness of clerical or arithmetical errors. There is no quarrel with that proposition. But the High Court seems to have completely lost sight of the scope and ambit of Section 482 of the Code.

The Section does not confer any new power on the High Court. It only saves the inherent power which the Court possessed before the enactment of the Code. It envisages three circumstances under which the inherent jurisdiction may be exercised, namely, (i) to give effect to an order under the Code,

(ii) to prevent abuse of the process of court, and (iii) to otherwise secure the ends of justice. It is neither possible nor desirable to lay down any inflexible rule which would govern the exercise of inherent jurisdiction. No legislative enactment dealing with procedure can provide for all cases that may possibly arise. Courts, therefore, have inherent powers apart from express provisions of law which are necessary for proper discharge of functions and duties imposed upon them by law. That is the doctrine which finds expression in the section which merely recognizes and preserves inherent powers of the High Courts. All courts, whether civil or criminal possess, in the absence of any express provision, as inherent in their constitution, all such powers as are necessary to do the right and to undo a wrong in course of administration of justice on the principle “quando lex aliquid alicui concedit, concedere videtur et id sine quo res ipsae esse non potest” (when the law gives a person anything it gives him that without which it cannot exist). While exercising powers under the section, the court does not function as a court of appeal or revision. Inherent jurisdiction under the section though wide has to be exercised sparingly, carefully and with caution and only when such exercise is justified by the tests specifically laid down in the section itself. It is to be exercised ex debito justitiae to do real and substantial justice for the administration of which alone courts exist. Authority of the court exists for advancement of justice and if any attempt is made to abuse that authority so as to produce injustice, the court has power to prevent abuse. It would be an abuse of process of the court to allow any action which would result in injustice and prevent promotion of justice. In exercise of the powers court would be justified to quash any proceeding if it finds that initiation/continuance of it amounts to abuse of the process of court or quashing of these proceedings would otherwise serve the ends of justice.

As noted above, the powers possessed by the High Court under Section 482 of the Code are very wide and the very plenitude of the power requires great caution in its exercise. Court must be careful to see that its decision in exercise of this power is based on sound principles. The inherent power should not be exercised to stifle a legitimate prosecution. The High Court being the highest court of a State should normally refrain from giving a prima facie decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H. S. Chowdhary (1992 (4) SCC 305), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1).

When the factual scenario is considered in the background of legal principle set out above, the inevitable conclusion is that the High Court was not justified in rejecting the application in terms of Section 482 of the Code. This is a case when the cognizance was taken, summons were issued by mistake and the names of the appellants were also mentioned in the order dated 15.2.1999. Since the police have not found any material against the appellants, the learned CJM without following the procedure as indicated above could not have directed issuance of summons so far as they are concerned. There was no indication that learned CJM dis- agreed with the opinion of the investigating agency and therefore ordered issuance of summons. On the contrary, as noted by learned CJM later that was a mistake and, therefore, he had ordered to strike of the names of the appellants. The High Court’s order is set aside. The names of the appellants shall be struck of from the array of accused persons.

The appeal is allowed.

Law of Wills in India

A Will is a document which ensures that your wishes with respect to your assets and property are followed after your death.

There often arises problems and complications when a person dies without a Will. Yet we put off making a Will, not realizing the predicament we put our family in, after our death. It’s a little effort that goes a long way. You will find the answers to the questions you may have had on making your Will, registering it and other relevant information.

Definitions:
A Will is defined as “the legal declaration of the intention of the testator, with respect to his property, which he desires to be carried into effect after his death.” In other words, a Will or a Testament means a document made by person whereby he disposes of his property, but such disposal comes into effect only after the death of the testator.

Codicil
is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will.

Executor
is the legal representative for all purposes of a deceased person (testator) and all the property of a testator vests in him.

Legatee/Beneficiary
is a person who inherits the property under a Will.

Probate
is a copy of the Will, certified under the seal of a competent Court.

Testator
is a person making a Will and executing it

Essential Characteristics
Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take effect after his death.

Revocability: The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is
not a minor
of sound mind
free from fraud, coercion or undue influence
Forms and Formalities:
Form of a Will:
There is no prescribed form of a Will. In order for it to be effective, it needs to be properly signed and attested. The Will must be initialed by the testator at the end of every page and next to any correction and alteration.

Language of a Will: A Will can be written in any language and no technical words need to be used in a Will, however the words used should be clear and unambiguous so that the intention of the testator is reflected in his Will.

Stamp Duty: No stamp duty is required to be paid for executing a Will or a codicil. A Will, therefore, need not be made on stamp paper.

Attestation: A Will must be attested by two witnesses who must witness the testator executing the Will. The witnesses should sign in the presence of each other and in the presence of the testator.

Under Parsi and Christian law, a witness cannot be an executor or legatee. However, according to Hindu Law, a witness can be a legatee. A Muslim is not required to have his Will attested if it is in writing.

Registration: The registration of a document provides evidence that the proper parties had appeared before the registering officers and the latter had attested the same after ascertaining their identity. In India, the registration of Wills is not compulsory even if it relates to immoveable property. The non-registration of a Will does not lead to any inference against the genuineness of a Will. In other words, registration therefore does not give any special sanctity to the Will though registration of the Will by the testator himself evidences the genuineness of the Will.

Whether registered or not, a Will must be proved as duly and validly executed, as required by the Indian Succession Act. Once a Will is registered, it is placed in the safe custody of the Registrar and therefore cannot be tampered with, destroyed, mutilated or stolen.

Procedure for Registration: A Will is to be registered with the registrar/sub-registrar with a nominal registration fee. The testator must be personally present at the registrar’s office along with witnesses.

Revocation and Amendment: A Will can be revoked, changed or altered by the testator at any time when he is competent to dispose of his property. A person can revoke, change or alter his Will by executing a new Will, revoking the earlier Will, registering the new Will (if the old Will is registered), destroying the old Will or by making a codicil. On the marriage of a Parsi or a Christian testator, his/her Will stands revoked, this however does not apply to Hindus, Sikhs, Jains and Buddhists.
odicil:
A codicil is an instrument made in relation to a Will, explaining, altering or adding to its dispositions and is deemed to be a part of the Will. A codicil has to be executed and attested like a Will. A codicil is similar to a Will and is governed by the same rules as a Will.

Probate and Letters of Administration
Probate: A probate means a copy of the Will, certified under the seal of a competent Court with a grant of administration of the estate to the executor of the testator. It is the official evidence of an executor’s authority. A probate is mandatory when the Will is executed by a Hindu, Christian or Parsi in the cities of Mumbai, Calcutta or Chennai, or pertains to immovable property situated in Mumbai, Calcutta or Chennai.

Effect of grant of probates : A probate granted by a competent court is conclusive evidence of the validity of a Will until it is revoked and no evidence can be admitted to impeach it except in a proceeding to revoke the probate. However, it only establishes the legal character of the executor and in no way decides the title or even the existence of the property devised. The grant of the probate decides only the genuineness of the Will and the executors right to represent the estate.
The grant of a probate is conclusive evidence of the testamentary capacity of the person who made the Will.
A probate is conclusive as to the genuineness of the Will and appointment of the executors.
Once a probate is granted, no suit will lie for a declaration that the testator was of unsound mind.
Probate is conclusive as to the representative title of the executor.

To whom probates can be granted : Under the Indian Succession Act, 1925, a probate can be granted only to an executor appointed under a Will. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When a probate can be granted : A probate cannot be granted until the expiration of seven days from the date of the testator’s death.

Letters of Administration: In the event a person dies intestate or a Will does not name any executor, an application can be filed in the courts of law for grant of probate.

To whom can a LoA be granted : Under the Indian Succession Act, 1925, a LoA can be granted to any person entitled to the whole or any part of the estate of the deceased person. However, it cannot be granted to a minor, a person of unsound mind, or to association of individuals, unless it is a company that satisfies the conditions stipulated by the government.

When can a LOA be granted : A LoA cannot be granted till the expiration of fourteen days from the date of the testator’s death.

Legal Declaration: The documents purporting to be a Will or a testament must be legal, i.e. in conformity with the law and must be executed by a person legally competent to make it.

Disposition of Property: The declaration should relate to disposition of the property of the person making the Will.

Death of the Testator: The declaration as regards the disposal of the property must be intended to take effect after his death.

Revocability : The essence of every Will is that it is revocable during the lifetime of the testator. People capable of making Wills are, Every person who is:
not a minor
of sound mind
free from fraud, coercion or undue influence

Executors:
An executor is a person who is appointed by a testator to execute his Will. In other words, an executor is duty bound to distribute the assets of the testator as per the provisions of his Will. A probate of a Will is granted only to an executor appointed by the Will.

Who can be an Executor: All persons capable of executing Wills can be executors. Even a minor can be appointed an executor of a Will, but a probate cannot be granted to the minor until he attains majority. A testator can appoint one or more executors. The appointment of an executor may be absolute or for a limited purpose or limited time. An executor as such does not derive any benefit under the Will, unless specifically provided for. However, as an executor has vast powers and the property vests in the executor until it is finally distributed to the legatees, it is therefore advisable to appoint a responsible and accountable person/institution such as a bank as an executor. The Executor is primarily appointed to manage the estate of the deceased for the benefit of the beneficiaries/legatees under the Will.

Legal status of the Executor: The executor is the legal representative for all purposes of a deceased person and all the property of the testator vests in him until the property is distributed as per the provisions of the Will. The executor is entitled to represent the testator in any legal action (not including criminal or defamatory proceedings). For example, an executor can sue for recovery of the testator?s debts. It is only the legal estate of the deceased that vests in the executor and the vesting is not of beneficial interest. The property vests in the executor only for the purpose of representation and administration.
Duties of an Executor:
To ascertain the assets of the deceased person.
To pay testamentary and funeral expenses.
To collect the debts and assets of the deceased.
To pay the debts of the deceased.
To apply for a Probate, whenever necessary.

Applicable laws and Special provisions
Applicable Laws
The Indian Succession Act, 1925
Hindu Personal Laws
Muslim Personal Laws
The Indian Registration Act, 1908

Special Provisions
Hindus, Sikhs, Jains and Buddhists Will :
A Will is not revoked upon the marriage of a Hindu, Sikh, Jain or Buddhists.
The executor can also be the witness to the Will.
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.

Parsis and Christians Will:
A probate is mandatory in the event that a Will is executed in the cities of Mumbai, Calcutta or Chennai, to the extent that the Will pertains to immovable property in Mumbai, Calcutta or Chennai.
On the marriage of a Parsi or Christian testator, his/her Will stands revoked.

Muslims Will
Muslim Personal Law governs a Muslim testator’s power to make a Will, the nature of the Will, its execution and attestation thereof etc. Under the Muslim Personal Law, a Muslim testator can make a Will orally or in writing and no form is required for such writing. However, it is preferable to have a written Will. If the Will is in writing it need not be attested. It may be noted that the provisions of the Indian Succession Act do not generally apply to a Muslim testator unless specifically stated in the Act.

In India, a person who is a major and of sound mind can make a Will and he can dispose of all or any part of his property by Will. However, there are two basic restrictions on the power of a Muslim testator to make a Will,
A Muslim can bequeath only one-third of his property by Will.
The heirs of a Muslim testator may consent to bequest in excess of one-third of the testator’s assets.

A Muslim may change his Will during his lifetime or cancel any legacy. A Will may also become void if a Muslim testator, after making the Will, becomes unsound of mind and continues to be so till his death. Similarly, a bequest which is contingent, or conditional or in the future or is alternative to another, pre-existing one, would be void. If an executor is appointed by a Muslim testator, the powers and duties of the executor will be in accordance with the provisions of the Indian Succession Act which have been discussed elsewhere.

Specific performance of contract

Specific performance is a remedy developed by principle of equity. A party to a contract who is damaged because the contract is breached by another party has the option to file a suit for specific performance compelling to perform his part of contract. Before an equity court will compel specific performance, however, the contract must be one which can be specifically performed. Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant.
Suit For Specific Performance of Contract- Practical Problems
Specific performance is a remedy developed by principle of equity. A party to a contract who is damaged because the contract is breached by another party has the option to file a suit for specific performance compelling to perform his part of contract. Before an equity court will compel specific performance, however, the contract must be one which can be specifically performed. Section 16 (c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. In our country, most of the specific performance suits relate to sales of immoveable properties and to some extent, transfer of shares. As the law of specific performance is basically founded on equity, considerations such as conduct of the plaintiff, the element of hardship that may be caused to one of the parties, the availability of adequate alternative relief and such other matters are taken into consideration. It is a discretionary relief.

Suit For Specific Performance:
Illustration
A is owner of land. He executed an unregistered agreement of sale in favour of B and received Rs. 50,000/- as an advance out of sale price of Rs.1,00,000/-. A has to execute a Regd. Sale deed within three months from date of execution of agreement of sale. But, A refused to execute Regd. Sale deed and sold the said property to C for higher price. B can sue against A for specific performance.

From the above illustration, no doubt, B can file a suit for specific performance. This case involve several aspects such as, whether plaintiff is ready and willing to perform his part of contract or not; when would time is essence of contract?; Can C be impleaded in the suit as party? Is escalation of price is a ground in such a suit? Question of Lis Pendens; whether B is entitled for damages and compensation or not; whether an unregistered agreement of sale is admissible or not etc. All these aspects are dealt in the following paragraphs with relevant illustrations.

Elements That Are Involved In A Suit For Specific Performance Of Suit:-
Valid Contract :-
Normally, suit for specific performance of contract based on agreement of sale. Vague and uncertain agreement could not be given effect to.( Vimlesh Kumari Kulshrestha vs Sambhajirao, 2008 (2) Supreme 127). It was observed in Ambica Prasad vs Naziran Bibi, AIR 1939 All 64], [Balram v Natku, AIR 1928 PC 75 that there should be a valid contract for suit for specific performance of contract.

Unregistered agreement of sale :-
Un registered agreement of sale is admissible in evidence under Section 49(c) of the Registration Act in a suit for specific performance of contract. Unregistered sale deed is admissible in evidence in a suit for specific performance.( S.Kaladevi vs V.R.Somasundaram, AIR 2010 SC 1654).

Conduct of the parties:-
Any person seeking benefit of specific performance of contract must manifest that his conduct has been blemishless (H.P.Pyarejan vs Dasappa, AIR 2006 SC 1144). Similarly, conduct of defendant cannot be ignored (Silvey vs Arun Varghese, AIR 2008 SC 1568). The relief of specific performance is discretionary ( V.R.Sudhakara Rao vs T.V.Kameswari, (2007) 6 SCC 650). It was held in Aniglase Yohannan v. Ramlatha, 2005 (7) SCC 534 that if the pleadings manifest that the conduct of the plaintiff entitles him to get the relief on perusal of the plaint he should not be denied the relief.

Readiness and Willingness:-
Section 16(c) of the Act mandates the plaintiff to aver in the plaint and establish the fact by evidence aliunde that he has always been ready and willing to perform his part of the contract. Distinction between “readiness” and “willingness” is that the former refers to financial capacity and the latter to the conduct of the Plaintiff wanting performance ((2011)1SCC429). The plaintiff’s readiness and willingness, which is a condition precedent, must be in accordance with the terms of the agreement (Bala Krishna vs Bhgawan Das, AIR 2008 SC 1786), however, the plaintiff need not carry money in his hand
( M.K.Watts vs Usha Sharma, AIR 2004 P&H 295). In a suit for specific performance, plaintiff is to approach Court with clean hands.( G.Jayashree vs Bhagawan Das, AIR 2009 SC 1749). Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract.( N.P. Thirugnanam v. Dr. R. Jagan Mohan Rao and Ors, (1995) 5 SCC 115 at para 5). Even subsequent purchaser is entitled to raise objection as to readiness and willingness. (AIR 2009 SC 2157). To know the consequences in the case of absence of plea of readiness and willingness in the plaint, see ruling J.P. Builders and Anr.Vs. A. Ramadas Rao and Anr, (2011)1SCC429).

Time is essence of contract:-
From the decision of a Constitution Bench of the Hon’ble Supreme Court in Chand Rani v.Kamal Rani MANU/SC/0285/1993 : 1993 (1) SCC 519, it is clearly known that in the case of sale of immovable property, time is never regarded as the essence of the contract. An intention to make time the essence of the contract must be expressed in unequivocal language. As to the point of limitation is concerned, the suit for specific performance has to be filed within reasonable time which depends upon facts and circumstances of each case. (AIR 2009 SC 2157, Azhar Sultana’s case). Even if it is not of the essence of the contract, the Court may infer that it is to be performed in a reasonable time if the conditions are: 1. from the express terms of the contract; 2. from the nature of the property; and 3. from the surrounding circumstances, for example: the object of making the contract.( Smt. Chand Rani (dead) by LRs. Vs. Smt. Kamal Rani (dead) by LRs, 1993 (1) SCC 519)

Adding parties in specific performance suit:-
Order 1 Rule 10 CPC is wider than the scope of Order 22 Rule 10 CPC as to person whose presence before the court is necessary or proper for effective adjudication of the issue involved in the suit. . Order 22 Rule 10 CPC is an enabling provision and that it has certain parameters to continue the suit where right to sue is survival. Order 22, Rule 10, C.P.C. speaks of cases of an assignment, creation or devolution of any interest during the pendency of a suit and the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. (See the ruling Lingaraja Mohanty vs Binodini Mohanty & Ors. on 20 April, 2011; Thomson Press (India) Ltd. Vs. Nanak Builders and Investors P. Ltd. and Ors, 2013(3)SCALE26).

Essential elements to constitute ‘Lis Pendens’:-
Answer:- Section 52 of T.P.Act delas with ‘Lis Pendens’. In order to constitute a lis pendens the following elements must be present :-
(I) There must be a suit or proceeding pending in a Court of competent jurisdiction;
(II) The suit or proceeding must not be collusive;
(III) The litigation must be one in which right to immovable property is directly and specifically in question;
(IV) There must be a transfer of or otherwise dealing with the property in dispute by any party to the litigation;
(V) Such transfer must affect the rights of the other party that may ultimately accrue under the terms of the decree or order.

Practical Problems In A Suit For Specific Performance
Problem No.1:- What will the Court consider to adjudge the readiness and willingness of plaintiff in a suit for specific performance?

Answer:- To adjudge whether the Plaintiff is ready and willing to perform his part of the contract, the Court must take into consideration the conduct of the Plaintiff prior and subsequent to the filing of the suit along with other attending circumstances and to prove willingness to perform plaintiff must enter witness box. Right from the date of the execution till date of the decree, he must prove that he is ready and has always been willing to perform his part of the contract. (Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, (2010)10SCC512)

Problem No.2:- Vendor executed an agreement of sale with a condition that in the event of his failure to execute a sale deed, the purchaser will not be entitled for specific performance but will only be entitled for return of the earnest money and/or payment of a sum named as liquidated damages. In such a case, whether suit for specific performance can be decreed?

Answer:- Liquidated damages means an amount contractually stipulated as a reasonable estimation of actual damage to be recovered by one party if the other party breaches. As the intention of the parties to bar specific performance of the contract and provide only for damages in the event of breach, is clearly expressed, the court may not grant specific performance, but can award liquidated damages and refund of earnest money.

Problem No.3:- The agreement of sale provides that in the event of breach by either party the purchaser will be entitled to specific performance, but the party in breach will have the option, instead of performing the contract, to pay a named amount as liquidated damages to the aggrieved party and on such payment, the aggrieved party shall not be entitled to specific performance. If that is so, whether the plaintiff is entitled for specific performance?

Answer:- In such a case, the purchaser will not be entitled to specific performance, as the terms of the contract give the party in default an option of paying money in lieu of specific performance.

Problem No.4:- If the purchaser failed to pay Rs. 4,00,000 within one month and thereby prevented the vendor from purchasing another property and shifting to such premises, the vendor will not be able to perform his obligation to deliver vacant possession. If so, whether such contract is valid?

Answer:- Section 53 of Indian Contract Act,1872 provides answer to this problem. Further, the following illustration succinctly explains solution for the problem.

Illustration:-
‘’ ‘A’ executed an agreement of sale in favour of B. advance of Rs 4,00,000/- was paid to A out of sale price of Rs.10,00,000/-. Rs.4,00,000/- is to be paid to paid within one month to A to enable him to purchase an alternative property and to shift his residence from the property agreed to be sold, and sale deed has to be executed within three months from the date of agreement of sale and vacant possession of the premises should be given, against payment of balance price. If ‘B’ failed to pay Rs. 4,00,000 within one month and thereby prevented A from purchasing another property and shifting to such premises, ‘A’ will not be able to perform his obligation to deliver vacant possession. Thus the contract becomes voidable at the option of ‘A’ ‘’.

If the purchaser failed to pay Rs. 4,00,000 within one month and thereby prevented the vendor from purchasing another property and shifting to such premises, the vendor will not be able to perform his obligation to deliver vacant possession. Thus the contract becomes voidable at the option of the vendor. (Mrs. Saradamani Kandappan’s case, (2011)12SCC18)

Problem No.5 :- Vendor did not sign on agreement of sale but vendee signed. this is contention of vendor. Irrespective of written contract, the vendor and vendee both have same understanding of the terms of agreement. In such a case, suit for specific performance is maintainable?

The answer is affirmative. Suit for specific performance is maintainable in such a case. See the following illustration.

Illustration:-
A is owner of land. A agreed to sell the land orally and receives Rs.80,000/- from B as an advance out of sale consideration of Rs.2,00,000/-. A and B both have same understanding of the terms of agreement. B vendee also signed on the agreement of sale. A vendor contends that he did not sign on it and so there is no contract at all. A cannot contend that such agreement is invalid for want of his signature. Specific performance is maintainable. (Note:- Problem no.5 and its illstruction published in LAW SUMMARY -2013, Vol-3,Dt. 15-11-2013, at 21 is to be read as edited herein.)

The case of similar instance was decided in the case of Adbul Hakkem vs Naiyaz Ahmed, AIR 2004 AP 299, where the defendant contended that the plaintiff vendee alone signed the sale agreement but not the defendant vendor, as such there can be no contract, cannot be accepted. The Court held that specific performance is maintainable.(Also see A.P.Civil Court Manual, Vol-2, at page 1358). In my view, irrespective execution of written contract, when the vendor and vendee both have same understanding of the terms of agreement, Vendor cannot conted that there is no contract between them because even oral contract is valid. if vendor contends that such agreement is invalid for want of his signature on agreement of sale, such contention cannot be acceptable on the ground of ‘Consensu ad idem’.

Problem No.6 :- Can a purchaser from a co-parcener enforce specific performance?

Answer to this question is that a purchaser from a co-parcener can enforce specific performance of his contract against the other co-parceners.

Illustration:-
“A and B are joint tenants of land, his undivided moiety of which either may be alien in his lifetime, but which, subject to that right, devolves on the survivor. A contracts to sell his moiety to C, and dies. C may enforce specific performance of the contract against B.”

The above illustration, which is undoubtedly covered by the terms of the section 15 of the Act, is substantially the present case and shows that a purchaser from a co-parcener can enforce specific performance of his contract against the other co-parceners. (See 40 Ind Cas 429, T. Rangayya Reddy vs V.S. Subramanya Aiyar And Ors)

Problem No.7 :- If the plaintiff suffers losses in consequence of a contract. If that be so, whether specific performance of contract is maintainable?

Answer:- Yes. The following illustration succinctly explains about maintainability of the suit for specific performance.

Illustration.
A Sells land to a railway-company who contracts t execute certain works for his convenience. The company takes the land and use it for their railway. Specific performance of the contract to execute the work should be decreed in favour of A.

This illustration is useful to understand section 20 (3) of the Act. The Court can properly exercise discretion to decree a suit for specific performance in any case where the plaintiff has suffered losses in consequences of a contract.

Section 20 and illustration therein of Specific Relief Act, 1977(1920 A.D.) of Jammu & Kashmir which is applicable to the parties makes it explicitly clear thus:

A contract, otherwise proper to be specifically enforced, may be enforced, though a sum be named in it as the amount to be paid in case of its breach, and the party in default is willing to pay the same. (Manzoor Ahmed Margray Vs. Gulam Hassan Aram & Ors, 2003(6)ALT15(SC), 1999(6)SCALE350)

Illustration
A contracts to grant B an under-lease of property held by A under C, and that he will apply to C for a licence necessary to the validity of the under-lease, and that, if the licence is not procured, A will pay B Rs. 10,000. A refuses to apply for the licence and offers to pay B Rs. 10,000. B is nevertheless entitled to have the contract specifically enforced if C consents to give the licence.

Problem No.8 :- A party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money. If so, whether he is entitled to obtain a decree for specific performance?

Answer: – Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed forms a considerable portion of the whole, or does not admit of compensation in money, he is not entitled to obtain a decree for specific performance. But the Court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform: provided that the plaintiff relinquishes all claim to farther performance, and all right to compensation either for the deficiency, or for the loss or damage sustained by him through the default of the defendant. (Manzoor Ahmed Margray Vs. Gulam Hassan Aram & Ors, 2003(6)ALT15(SC), 1999(6)SCALE350). The following illustration also gives answer to the problem.

Illustration:-
A contracts to sell to B a piece of land consisting of 100 bighas. It turns out that 50 bighas of the land belong to A, and the other 50 bighas to a stranger, who refuses to part with them. A cannot obtain a decree against B for the specific performance of the contract; but if B is willing to pay the price agreed upon, and to take the 50 bighas which belong to A, waiving all right to compensation either for the deficiency or for loss sustained by him through A’s neglect or default, B is entitled to a decree directing A to convey those 50 bighas to him on payment of the purchase-money.

Problem No.9 :- The agreement of sale provides that in the event of breach by the vendor, the purchaser shall be entitled to an amount equivalent to the earnest money as damages. The agreement is silent as to specific performance. In such a case, whether the court can direct specific performance by the vendor?

Answer:- Even if there is no provision in the contract for specific performance, the court can direct specific performance by the vendor, if breach is established. But the court has the option, as per Section 21 of the Act, to award damages, if it comes to the conclusion that it is not a fit case for granting specific performance. (Man Kaur (dead) by LRS. Vs. Hartar Singh Sangha, (2010)10SCC512)

Conclusion:-
Inasmuch as the conduct of parties is very much important in a suit for specific performance, the party who seek for relief of specific performance must approach the Court of law with clean hands. Further, while preparing plaint and written statement of the parties, proper care and caution must be taken and the relief must be clear and specific. I may conclude with observations of Lord Chancellor Cottenham in Tasker v. Small 1834 (40) English Report 848 that “It is not disputed that, generally, to a bill for a specific performance of a contract for sale, the parties to the contract only are the proper parties; and, when the ground of the jurisdiction of Courts of Equity in suits of that kind is considered it could not properly be otherwise. The Court assumes jurisdiction in such cases, because a Court of law, giving damages only for the non- performance of the contract, in many cases does not afford an adequate remedy. But, in equity, as well as in law, the contract constitutes the right and regulates the liabilities of the parties; and the object of both proceedings is to place the party complaining as nearly as possible in the same situation as the defendant had agreed that he should be placed in. It is obvious that persons, strangers to the contract, and, therefore, neither entitled to the right, nor subject to the liabilities which arise out of it, are as much strangers to a proceeding to enforce the execution of it as they are to a proceeding to recover damages for the breach of it.”

Indian Adventure Tourism Guidelines

About the Guidelines
Adventurous activities covered
The Ministry of Tourism has released the Guidelines by the Government of India on Adventure Tourism. These guidelines on Safety and Quality Norms for Adventure Tourism in India have been formulated along with the Adventure Tour Operators Association of India (ATOAI) in an effort to make adventure sports safer.

About the Guidelines
The aim of this initiative is to help adventure tour operators understand and execute safety guidelines in a better manner. These guidelines cover land, air and water based activities which include mountaineering, trekking, bungee jumping, paragliding, kayaking, scuba diving, snorkeling, river rafting and many other sports. The guidelines have been framed for 15 Land Based, 7 Air Based and 7 Water Based activities which cover the entire gamut of Adventure Tourism available in India. The guidelines codify the Standard Operating Procedures and instructions for Risk Mitigation and Emergencies as well as provide for details like Safety precautions, training required, insurance, etc.

The information given covers some major areas such as the role of a guide, important equipment required, inspections and maintenance process, operating instructions, risk mitigation, medical safety etc. Detailed guidelines covered in the document focus on safety from every possible angle. It educates tour operators and other concerned agencies about important safety requirements and lesser-known dangers. In order to put a strong foothold in the field of adventure sports, better safety measures are mandatory. It is imperative that all adventure tourism stakeholders provide for better vigilance and strict adherence to these guidelines.

Adventurous activities covered
Land based Adventure Tourism (15) comprises, All Terrain Vehicle Tours (ATV), Bungee Jumping, Cycling Tours, Camel Safaris, Horse Safaris, Jeep Safaris, Motorcycle Tours, Mountaineering, Nature Walks / Bird Watching, Rock Climbing / Artificial Wall Climbing & Abselling, Personal Light Electric Vehicle Tours, Skiing / Snow Boarding, Trekking, Wildlife Safaris, Zip Wires and High Ropes Courses.

Air Based Adventure Tourism (7) comprises, Hot Air Ballooning, Paragliding / Hand Gliding, Para Motoring, Parasailing, Ski Diving, Air Safaris, Kite Boarding.

Water Based Adventure Tourism (7) comprises, Kayaking / Sea Kayaking, Rafting, River Cruisinig, Scuba Diving, Snorkelling, Water Sports Centres, Essentials.

Lawyer Skills “new Generation”

Up till now, the necessary and sufficient skill set for lawyers has looked something like this (in alphabetical order):

Analytical ability
Attention to detail
Logical reasoning
Persuasiveness
Sound judgment
Writing ability (okay, that one’s apparently optional for some)
This list doesn’t include such characteristics as knowledge of the law, courtroom presence, or integrity — these aren’t “skills,” per se, so much as information one acquires or basic elements of one’s character. Even innovation, which I prize so highly, is first and foremost an attitude and willingness to think and act differently.

Rather, I’m concerned here with actual skill: a ready proficiency or applied ability acquired and developed through training and experience. Your degree of character, diligence and intelligence are innate characteristics; skills are what you acquire through their application. If you possessed these six skills in sufficient abundance, you were fully qualified to practise law.

Well, not anymore. From this point onwards, while these skills remain necessary, they’re no longer sufficient: they constitute only half of the set necessary to practise law competently, effectively and competitively. Here’s the new six-pack, the other half of tomorrow’s — no, today’s — minimum skills kit for lawyers (again in alphabetical order).

  1. Collaboration skills. This isn’t just about “working well in a team,” essential as that is. This is about the ability to function in a multi-party work environment such that the process and outcome transcend the collective contribution — the whole surpasses the sum of the parts. Thanks to technological and social advances, this is how work is going to be done from now on. Lawyers who collaborate well possess the ability to identify and bring out the best others have to offer, to submerge their own positions and egos where necessary, in order to reach the optimal client outcome. Collaborative lawyers trust the wisdom of the group; lone wolves and isolationists don’t do any good anymore.

  2. Emotional intelligence. If you just rolled your eyes at this entry, you probably subscribe to the belief, drilled into us in law school and in practice, that lawyers have to detach themselves emotionally from their cases and clients in order to offer the best advice. That’s idiotic. Clients need our empathy, perspective and personal connection to feel whole and satisfied; colleagues need our engagement, respect and understanding to be their best and help us succeed; everyone needs us to listen better than we do. Distant, detached lawyers are relics of the 20th century — the market no longer wants a lawyer who’s only half a person.

  3. Financial literacy. This is a widespread issue, recently identified by The Economist as a factor in the subprime meltdown and other economic woes. But there’s no excuse for lawyers to remain so steadfastly clueless about money: running a business, balancing a ledger, understanding tax principles, working with statistics, calculating profit margins, even explaining the rationale behind their fees. Too many lawyers with Arts degrees just shrug and say, “I was never good with numbers” or “They never taught me that in law school.” Not good enough: every client and every case involves money in some way, and every lawyer in private practice is running a business of one size or another. Financial literacy is essential.

  4. Project management. It’s a growing refrain among clients, a chorus of frustration that most lawyers have zero skills in project management. Some lawyers wouldn’t even be able to define it: planning, organizing, and managing resources to successfully complete specific objectives while maintaining scope, quality, time and budget restrictions. Lawyers seem pathologically unwilling to estimate time or budget costs (invoking the almighty “it depends” clause) and incapable of creating and managing a plan of action, presumably for fear of failing or being caught shorthanded. But today, everybody project-manages: it’s SOP in corporate life, and lawyers are the only ones in the business chain who seem to have missed the memo.

  5. Technological affinity. Gerry Riskin recently called out the legal profession in a timely post on this subject: “too many lawyers pride themselves on their IT incompetencies, believing that it makes them somehow charming and brilliant.” Lawyers have grown accustomed to going unchallenged on their technological backwardness, and even tech-savvy new lawyers eventually succumb to firms’ glacial pace of tech adaptation. Here is a fact: technological affinity is a core competence of lawyering. If you can’t effectively and efficiently use e-mail, the Internet, and mobile telephony, you might as well just stay home. And if you don’t care to learn about RSS, instant messaging, Adobe Acrobat and the like, clients and colleagues will pass you by.

  6. Time management. Virtually every lawyer I meet says the same things: “I’m just so busy. I have so much to do. I don’t have any time for myself.” And yes, law is demanding, hard work. But a substantial part of lawyers’ difficulties in this regard lie with their inability to prioritize their tasks and manage their time. Lawyers are terrible at saying “no,” they’re awful at delegating work into more efficient channels, and amazingly, many are still compensated not by the tasks they accomplish but by how long they take to do them. Lawyers who won’t or can’t learn to manage their time will continue to blame their Blackberrys for their difficulties, if they don’t burn out or get fired first.

So there you have it: six core skills that lawyers simply must possess if they want to make a living in the 21st century. Law schools need to teach them; governing bodies need to test for them; law firms need to make their lawyers expert in them. They’re not optional, there are no excused absences, and the test is starting right about now.

Universal Declaration of Human Rights

Universal Declaration of Human Rights
Article 1
Article 2
Article 3
Article 4
Article 5
Article 6
Article 7
Article 8
Article 9
Article 10
Article 11
Article 12
Article 13
Article 14
Article 15
Article 16
Article 17
Article 18
Article 19
Article 20
Article 21
Article 22
Article 23
Article 24
Article 25
Article 26
Article 27
Article 28
Article 29
Article 30
The Universal Declaration of Human Rights (UDHR) is a milestone document in the history of human rights. Drafted by representatives with different legal and cultural backgrounds from all regions of the world, the Declaration was proclaimed by the United Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 A) as a common standard of achievements for all peoples and all nations. It sets out, for the first time, fundamental human rights to be universally protected and it has been translated into over 500 languages.

Preamble
Whereas recognition of the inherent dignity and of the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world,

Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people,

Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law,

Whereas it is essential to promote the development of friendly relations between nations,

Whereas the peoples of the United Nations have in the Charter reaffirmed their faith in fundamental human rights, in the dignity and worth of the human person and in the equal rights of men and women and have determined to promote social progress and better standards of life in larger freedom,

Whereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms,

Whereas a common understanding of these rights and freedoms is of the greatest importance for the full realization of this pledge,

Now, Therefore THE GENERAL ASSEMBLY proclaims THIS UNIVERSAL DECLARATION OF HUMAN RIGHTS as a common standard of achievement for all peoples and all nations, to the end that every individual and every organ of society, keeping this Declaration constantly in mind, shall strive by teaching and education to promote respect for these rights and freedoms and by progressive measures, national and international, to secure their universal and effective recognition and observance, both among the peoples of Member States themselves and among the peoples of territories under their jurisdiction.

Article 1
All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood.

Article 2
Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.

Article 3
Everyone has the right to life, liberty and security of person.

Article 4
No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.

Article 5
No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.

Article 6
Everyone has the right to recognition everywhere as a person before the law.

Article 7
All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.

Article 8
Everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law.

Article 9
No one shall be subjected to arbitrary arrest, detention or exile.

Article 10
Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

Article 11
Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.
No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.
Article 12
No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.

Article 13
Everyone has the right to freedom of movement and residence within the borders of each state.
Everyone has the right to leave any country, including his own, and to return to his country.
Article 14
Everyone has the right to seek and to enjoy in other countries asylum from persecution.
This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.
Article 15
Everyone has the right to a nationality.
No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.
Article 16
Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution.
Marriage shall be entered into only with the free and full consent of the intending spouses.
The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.
Article 17
Everyone has the right to own property alone as well as in association with others.
No one shall be arbitrarily deprived of his property.
Article 18
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.

Article 19
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Article 20
Everyone has the right to freedom of peaceful assembly and association.
No one may be compelled to belong to an association.
Article 21
Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Everyone has the right of equal access to public service in his country.
The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.
Article 22
Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.

Article 23
Everyone has the right to work, to free choice of employment, to just and favourable conditions of work and to protection against unemployment.
Everyone, without any discrimination, has the right to equal pay for equal work.
Everyone who works has the right to just and favourable remuneration ensuring for himself and his family an existence worthy of human dignity, and supplemented, if necessary, by other means of social protection.
Everyone has the right to form and to join trade unions for the protection of his interests.
Article 24
Everyone has the right to rest and leisure, including reasonable limitation of working hours and periodic holidays with pay.

Article 25
Everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.
Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection.
Article 26
Everyone has the right to education. Education shall be free, at least in the elementary and fundamental stages. Elementary education shall be compulsory. Technical and professional education shall be made generally available and higher education shall be equally accessible to all on the basis of merit.
Education shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace.
Parents have a prior right to choose the kind of education that shall be given to their children.
Article 27
Everyone has the right freely to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits.
Everyone has the right to the protection of the moral and material interests resulting from any scientific, literary or artistic production of which he is the author.
Article 28
Everyone is entitled to a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized.

Article 29
Everyone has duties to the community in which alone the free and full development of his personality is possible.
In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society.
These rights and freedoms may in no case be exercised contrary to the purposes and principles of the United Nations.
Article 30
Nothing in this Declaration may be interpreted as implying for any State, group or person any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms set forth herein.