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Reservation Policy In India

Reservation Policy in India is a process of reserving certain percentage of seats (maximum 50%) for a certain class such as Scheduled Castes, Scheduled Tribes, Backward classes, etc. in Government educational institutions, government jobs, etc.

The reservation policy is an age old policy being practiced in India. Its origin has its roots scattered from the ancient times when the practice of ‘untouchability’, caste system and Varna system was dominant in the society. In ancient times, the Hindu society was divided on the basis of Varna, Jatis or classes and they were as follows in the descending order of their social hierarchy- the Brahmans, the Kshatriyas, the Vaisyas and the Shudras. There was another class of people or rather no class people known as “untouchables” or “avarna” that is who has no class. These untouchables were considered to be impure for the society and were excluded from the social system. They had to reside outside the village and had no social rights. In some parts of the country such as Southern India, if even their shadow was casted on the upper-class people then it was considered that the person has got impure. There were strict restrictions on them for social gatherings and social life and if they violated any social norm, they were severely punished and in some cases were even killed. The division of society on the norms of purity and impurity was a very cruel system, and it had adverse effects on the development and growth of these lower class people where the skill and labor of an individual were recognized merely on the ground of him being a member of a lower caste. The epics like Mahabharata also quote of many instances wherein a warrior like Karna was not allowed to showcase his talent merely on the ground of him being a Shudra. He was often referred to as ‘Shudra Putra’ and humiliated because of his caste. The then prevalent caste system was a major reason for the advent and advancement of the Reservation Policy in India. The idea of giving reservations to a certain class of people originated because of the prevalent atrocities being done on the certain class of people. To give them an equal opportunity, an equal status in society, to uplift them socially, to bring them at par with other sections of society and moreover to bring development in the lower strata of society, were the reasons for the adoption of Reservation Policy in India.

Reservation Policy in Pre- Independence Era

The legal origin of Reservation Policy in India began with lying down of the Government of India Act, 1919 which came during the turbulent period of World War I. During this period, the British were more focussed on Europe rather than on India yet they passed much important and significant legislation that aimed at the development of the Indian Territory. This Act of 1919 not only introduced several reforms for the Indian Governmental institutions but also addressed many issues of minorities including the formation of communal electorates. Though the system was criticized firmly by Montague-Chelmsford as a system that could be a hindrance to the self-development policy but because Muslims already had a communal electorate through the Minto- Morley reform of 1909 and, therefore, they found it unfeasible to take away the separate electorates of Muslims.

After the Act of 1919, the controversial Simon Commission came up in 1927 to scrutinize the Montague- Chelmsford reforms. After touring the entire Indian provinces, their representatives proposed for combining separate electorates and reserving seats for depressed classes and demand for the wider franchise was there as the economic, educational and social position of these depressed classes did not allow them to vote properly. To stamp and scrutinize the report of Simon Commission and the reforms proposed by them and how to incorporate them into new Constitution, a Round Table Conference was convened in London in 1931. There were many Indian delegates from various interests groups. The conference was chaired by Prime Minister Ramsay Macdonald. There were appeals for separate electorate from B.R Ambedkar but Mahatma Gandhi strongly opposed the appeal for separate electorate for depressed classes and because of this strong opposition from Mahatma Gandhi and Congress the issue of minority remained unresolved in the Conference.

After this the Communal Award and the Poona Pact of 1932 came into force wherein the Prime Minister Macdonald announced the communal award where the separate representations were to be provided to Muslims, Sikhs, Indian Christians, Anglo- Indians, Europeans and Dalits Depressed classes’ were assigned a number of seats that were to be filled by election from special constituencies in which voters belonging to the depressed classes could only vote

The award brought in criticism from Mahatma Gandhi but was strongly supported by Dr. BR Ambedkar and other minority groups. As a result, of the hunger strike by Mahatma Gandhi and widespread revolt against the award, the Poona Pact of 1932 came into being which brought in a single general electorate for each of the seats of British India and new Central Legislatures. The stamping of the provisions of Poona Pact, 1932 were done in The Government of India Act of 1935 where reservation of seats for depressed classes was allotted. This was the scenario before the independence of India.

Post- Independence Era 

Post- Independence the scenario changed and the reservation policy gained even more momentum than the pre-independence era. The Constituent assembly chaired by Dr. B.R Ambedkar framed the reservation policy and many Articles in the Indian Constitution were dedicated for the same.

Article 15(4) – Special Provision for Advancement of Backward Classes-

Article 15(4) is an exception to clauses 1 and 2 of Article 15, and it was added by the Constitution (1st Amendment) Act, 1951, as a result of the decision in State of Madras v. Champakam Dorairajan[1]. In this case, the Madras Government had reserved seats in State Medical and Engineering colleges for different communities in various proportions on the basis of religion, caste and race. The state defended the law on the ground that it was enacted with a view to promote the social justice for all the sections of the people as required by Article 46 of the Directive Principles of State Policy. The Supreme Court held the law void because it classified students on the basis of caste and religion irrespective of merit. To modify the effect of the decisions, Article 15 was amended by the Constitution (1stAmendment) Act, 1951. Under this clause, the state is empowered to make provisions for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and Scheduled Tribes. After the amendment, it became possible for the state to put up a Harijan Colony in order to advance the interest of the backward classes.

Constitution (93rd amendment) Act, 2006: Provision for Reservation of Backward, SC and ST classes in private educational institutions (article 15(5))

The new clause 5 provides that nothing in Article 15 or in sub- clause (g) of Clause 1 of Article 19 shall prevent the state from making any special provisions, by law, for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes or the Scheduled Tribes in so far as such special provisions relate to admission to educational institutions including private educational institutions, whether aided or unaided by the State, other than the minority educational institutions referred to in Clause (1) of Article 30..

The above-mentioned amendment has been enacted to nullify the effect of three decisions of the Supreme Court in TM Pai Foundation v. State of Karnataka[2], Islamic Academy v. State of Karnataka[3] and P.A Inamdar v. State of Maharashtra[4].  In T.M Pai and P.A. Inamdar case, it had been held that the state cannot make reservations of seats in admissions in privately run educational institutions. In Islamic Academy case, it had been held that the state can fix quota for admissions to these educational institutions but it cannot fix fee, and also admission can be done on the basis of common admission test and on the basis of merit. This Amendment enables the state to make provisions for reservation for the above categories of classes in admission to private educational institutions. The Amendment, however, keeps the minority educational institutions out of its purview. Article 15 prohibits discrimination on the ground of religion. The evil effect of reservation is well known. The politicians who claim to take the country to the 21st century for which higher education is based on merit is essential, is taking a retroactive step in providing reservation to less meritorious students to private educational institutions. This appeasement policy of the government may get them some benefit in elections, but it would be harmful to the Nation.[5]

Reservation of posts in public employment on the basis of residence (Article 16(3))[6]

Article 16(3) is an exception to clause 2 of Article 16 which forbids discrimination on the ground of residence. However, there may be good reasons for reserving certain posts in State for residents only. This article empowers Parliament to regulate by law the extent to which it would be permissible for a state to depart from the above principle.

Reservation for backward classes in public employment (Article 16(4))[7]

Article 16(4) is the second exception to the general rule embodied in Articles 16(1) and (2). It empowers the state to make special provision for the reservation in appointments of posts in favor of any backward class of citizens which in the opinion of the State are not adequately represented in the services under the State.

Indra Sawhney V. Union of India [8]– The Mandal Case

The 9 Judge Constitution Bench of the Supreme Court by 6:3 majority held that the decision of the Union Government to reserve 27% Government jobs for backward classes provided socially advanced persons- Creamy Layer among them are eliminated, is constitutionally valid. The reservation of seats shall only confine to initial appointments and not to promotions, and the total reservations shall not exceed 50 percent. The court accordingly partially held the two impugned notifications (OM) dated August 13, 1990, and September 25, 1991, as valid and enforceable but subject to the conditions indicated in the decision that socially advanced persons- Creamy layer among Backward Classes are excluded. However, the court struck down the Congress Governments OM reserving 10% Government jobs for economically backward classes among higher classes.

After the landmark Mandal case, Article 16(4-A) (through 77th Amendment) and 16(4-B) (through 81st Amendment) were added. According to clause 4-A, nothing in this Article shall prevent the state from making any provision for reservation in matters of promotion to any class or classes of posts in the service of state in favour of the Scheduled Castes and Scheduled Tribes which in the opinion of the State, are not adequately represented in the services under the State.”

Clause 4-B seeks to end the 50% ceiling on the reservation for SCs/STs and BCs in backlog vacancies which could not be filled up in the previous years due to the non- availability of eligible candidates.

85th Amendment Act replaces the words “in matters of promotion to any class” in clause 4- A of Article 16 with words “in matters of promotion, with consequential seniority, to any class.”

Other Articles of Indian Constitution covering the Reservation Policy

Article 17 talks about the abolition of untouchability and declares its practice in any form to be an offense punishable under law.

The Social Security Charter of Directive Principles of State Policy under Article 39-Adirects the State to ensure equal justice and free legal aid to Economically Backward Classes and under Article 45 imposes a duty on the state to raise the standards of living and health of backward classes.

Articles 330-342 talk about the special provisions for the certain class of people such as Scheduled Castes, Scheduled Tribes, Anglo –Indians, Linguistic minorities and OBC.

Conclusion

The reservation policy in India was adopted with a reason to uplift certain castes who were subjugated to atrocities, social and economic backwardness due to the prevalent dominance of caste system in Hindu Society.

This reason has somewhere lost its essence in the modern era, and the castes that should be actually benefitted are not being benefitted, and the others are reaping the benefits of the reservation system that are actually not meant for it. Today, the reservation system has just become a tool for politicians to gain vote banks. The recent agitation from the Patels of Gujarat to include them in the category of OBC was shocking for the entire nation, as the people who were agitating to get reservations in the state of Gujarat were in no ways socially and economically backward.

In the State of Tamil Nadu, the reservation system proved to be a havoc for the society wherein the Brahmans had very cleverly churned themselves down in the league of the backward bandwagon and had gained enormously from the reservation system.

For these possible reasons, the Creamy Layer has been excluded from the list of Scheduled Castes, Scheduled Tribes and OBC after the landmark Mandal Case.

In one of the landmark decisions of Ashok Kumar Thakur v. Union of India, Justice Ravindran smelling the dangers from the present trend on the reservation had rightly opined that when more people aspire for backwardness instead of forwardness, the Country itself stagnates.

It is quite impossible to declare Reservation policy as good or bad as those benefitting from it would always support it and declare it to be good while those who are being at a loss because of the system would always curse it and declare it to be bad. But what matters the most is not that whether the reservation policy is good or bad instead what matters is the idea and the reason behind its adoption. If that reason is losing its essence, then, of course, the reservation policy would gradually turn out to be bad.

The political indulgence in the process of reservation has merely reduced from a noble idea to a strategy to increase the vote bank. Moreover, a lot of criticism has been made on the criteria of reservations. The socially and economically backward classes are not actually in practical and real sense socially and economically backward, the only stamp of being from a backward caste is enough to gain profits in the name of reservations.

The reservation policy is good till the point some deserving candidate is not missing upon his opportunity because of the prevalent reservation system. I find no reason for giving admissions to undeserving students over deserving students. If these classes of people have been denied opportunities in past, then the scenario is being repeated with the general class in the present. The undeserving should not reap the fruits of the labor of the deserving.

We also need to understand that when we talk about development then simultaneously we cannot talk about backwardness. If we would demand more and more backwardness, then it is obvious we cannot move forward, and we will not be able to move forward, our progress would ultimately get stagnant.

It is also important that the essence of the idea of the adoption of reservation policy should be maintained, and the actual backward classes who are in real and not fiction denied access to education, job opportunities etc be benefitted.

This reservation policy should not become a ladder to climb on the stairs of profit, money and other related interests for those who are just roaming with the stamp of being a backward class and are actually socially and economically much more stable than the general class.

“The urge to be one among the backward will gradually lead towards the stagnation in the development of the country.

[1] AIR 1951 SC 226

[2] AIR 2003 SC 355

[3] AIR 2003 SC 3724

[4] Air 2005 SC 3226

[5] The Constitutional Law of India by Dr. JN Pandey, Central Law Agency, page 132.

[6] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155.

[7] THE CONSTITUTION OF INDIA BY JN PANDEY, PAGE 155- 156

[8]  AIR 1993 SC 477

10 major judgments by Supreme Court in 2018

In his final week as chief justice, Dipak Misra has passed various judgments on important cases, ranging from the one on the constitutionality of Aadhaar to the case on the entry of women into the Ayyappa temple at Sabarimala.

Some of the judgments have been unanimously hailed.Others have been welcomed by some and criticised by others. Interestingly, those welcoming some judgements are the very people criticising some others. This is a clear indication that the court has not taken sides or played favourites.

Misra’s last working day will be 1 October as the court will not be functioning the following day on the occasion of Gandhi Jayanti.

Here are the top 10 judgements by Supreme Court

Decriminalisation of section 377

In a landmark judgment, the Supreme Court on 6 September 2018 decriminalised homosexuality.The five-judge SC bench’s decision to make gay sex legal has restored the LGBTIQ community members’ faith in the Indian judicial system. While many take a sigh of relief that “they would not be seen as a criminal”, Shashi Tharoor feels we all should “savour this victory”.

The Supreme Court decriminalised homosexuality between consenting adults by declaring Section 377, the penal provision which criminalised gay sex, as “manifestly arbitrary”.

Reservation in promotion for SC/ST government employees

The Supreme Court turned down an appeal to reconsider its own earlier order that had rejected the idea of reservations for Scheduled Castes (SCs) or Scheduled Tribes (STs) in government job promotions on September 26.

Validity of Aadhaar

The Supreme Court upheld the validity of Aadhaar on September 26, 2018 and struck down Section 57 of Aadhaar Act. It said, private companies cannot ask for Aadhaar. It won’t be mandatory for opening of bank accounts, mobile connections.

Ram Janmabhoomi-Babri Masjid

The Supreme Court turned down two pleas in the Ayodhya case on September 27, 2018. One that directly deals with the way the disputed land was split according to the 2010 Allahabad High Court ruling, and another that would have had a direct impact on the Supreme Court’s final verdict in the case.

Adultery

In a historic judgement, the Supreme Court quashed adultery as a criminal offence in India. The court underlined that Section 497 treats women as properties of their husbands and is hence manifestly discriminatory. It trashed the central government’s defence of Section 497 that it protects the sanctity of marriages.

Sabarimala verdict

The Supreme Court lifted centuries’ old prohibition of women between ages 10 and 50 from entering Sabarimala temple in Kerala on Friday. “The practice in Sabarimala temple violates the rights of Hindu women. It has to be in harmony with the Constitution” said Chief Justice of India Dipak Misra.

Bhima Koregaon arrest

In a setback for activists, the Supreme Court ordered an extension of the house arrest of activists for four more weeks on September 28, 2018.

Live streaming of court hearing

The Supreme Court on Wednesday decided to bring its courtroom proceedings under public glare by agreeing to live-streaming of court functioning, paving the way for people to watch the courtroom drama live as it unfolds on September 26, 2018.

Politicians with criminal antecedents

In its unanimous verdict, a five-judge bench led by Chief Justice Misra on Tuesday left it to Parliament to bar lawmakers facing trial for heinous and grievous offences from contesting elections by enacting a “strong law”, while it observed that the criminalisation of politics is a bitter manifest truth and a “termite” to the citadel of democracy.

Refusing to put a ban on candidates with criminal antecedents from entering the poll fray, the court said the law should also make it mandatory for political parties to revoke the membership of candidates facing serious criminal cases.

Triple Talaq

The Supreme Court on August 22, 2017 banned a controversial Islamic practice of instant divorce as arbitrary and unconstitutional, in a landmark verdict for gender justice that will stop Muslim men calling off a marriage on a whim.

The top court said Triple Talaq violates the fundamental rights of Muslim women as it irrevocably ends marriage without any chance of reconciliation.

Marriage of Hindu woman and Muslim man irregular, not valid; child born is legitimate: Supreme Court

The court held that the child born in an irregular marriage is legitimate just like in the case of a valid marriage and is entitled to inherit the property of the father.

 A marriage of a Hindu woman with a Muslim man is not a “regular or valid” but the child born out of such wedlock is legitimate, the Supreme Court on Tuesday held.

It also said that the legal effect of such an irregular marriage is that a wife is entitled to get dower but cannot inherit the husband’s property.

The court held that the child born in an irregular marriage is legitimate just like in the case of a valid marriage and is entitled to inherit the property of the father.

A bench of justices N V Ramana and M M Shantanagoudar upheld the order of the Kerala High Court by which it was ruled that the son of a couple – Mohammed Ilias and Valliamma (who was Hindu at the time of marriage) – was legitimate and was entitled for share in his father’s property according to law.

“We conclude that the marriage of a Muslim man with an idolater or fire­worshipper is neither a valid nor a void marriage, but is merely an irregular marriage. Any child born out of such wedlock is entitled to claim a share in his father’s property,” the bench said.

The top court while dismissing the appeal against the high court order said that since Hindus are idol worshippers, which includes worship of physical images or statues through offering of flowers and adornment, it is clear that the marriage of a Hindu woman with a Muslim man is merely an irregular one.

It was hearing a property dispute matter in which Shamsuddin, son of Ilias and Valliamma, claimed share in the ancestral property through inheritance after the death of his father.

It said “the legal effect of a irregular marriage is that in case of consummation, though the wife is entitled to get dower, she is not entitled to inherit the properties of the husband.

But the child born in that marriage is legitimate just like in the case of a valid marriage, and is entitled to inherit the property of the father.

” The court said that on other hand the effect of a void marriage is that it does not create any civil right or obligations between the parties and the children born out of such wedlock are illegitimate.

The bench said that under Muslim law, a marriage is not a sacrament but a civil contract and there are three types of marriage – valid, irregular and void.

The court said that high court relied on principles of Islamic law to conclude that such rules do not treat the marriage of a Muslim with a Hindu woman as void, and confers legitimacy upon children born out of such wedlock.

Referring to this law, the bench said that a marriage which is not valid may be either void or invalid.

“A void marriage is one which is unlawful in itself, the prohibition against such a marriage being perpetual and absolute. An invalid marriage is described as one which is not unlawful in itself, but unlawful for something else (like absence of witnesses),” the bench said.

Shamsuddin’s claim over property was opposed by his cousins who alleged that his mother was not the legally wedded wife of Ilias and she was a Hindu by religion at the time of marriage.

They claimed that she had not converted to Islam at the time of her marriage, and thus Shamshuddin being the son of Valliamma, is not entitled to any share in Ilias’s property.

The top court said that it was not disputed that Valliamma was the wife of Ilias and contrary to the claims, birth register records maintained by statutory authorities indicate that Shamshuddin was their son.

“On the contrary, he is the legitimate son of Mohammed Ilias, and consequently is entitled to inherit the shares claimed in the estate of his father,” it said.

It said that it was also not denied that Ilias and Valliamma were living together as husband and wife at Thiruvananthapuram.

“Under these circumstances, in our considered opinion, the trial court and the high court were justified in concluding, based on the preponderance of probabilities, that Valliamma was the legally wedded wife of Mohammed Ilias, and the plaintiff (Shamshuddin) was the child born out of the said wedlock,” it held.

The bench also upheld the finding of the high court that though Shamshuddin was born out of a ‘fasid’ (irregular) marriage, he cannot be termed as an illegitimate son of Ilias.

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.”