EASEMENTS ACT, 1882:

Easement: An easement is a right which the owner or occupier of a certain land possess as such for the benfecial enjoyment of that land, to do and continue to do something or to prevent and continue to prevent something being done, in or upon or do in respect of certain other land not of his own.  Essence of easment is that it should be a right over property belonging not to owner but to some one else.

Easement by way of Law: (a) Easement by necessity (b) easement by prescription.

Easement by necessity: In order to claim easement by necessity the following elements must be fulfilled:

1. As a result of division of land into two pieces and their connection with each other is in such a way that one cannot be enjoyed without other having privilege over another’s land . To put straight the beneficial enjoyment of one’s land is possible only, if there is a limitation or restraint on the absolute enjoyment of right of ownership in the land of another. Generally this arises for purpose of right of way.
2. It must be noted that, if there is any other way or means through which the property can be enjoyed beneficially though it may be in convenient it’s not a ground to seek easement by way of necessity, to put straight, claiming right under this category depends upon absolute necessity.
3. Easement right under this category can be claimed as long as necessity is existed, the movement it is seized the right ceases.

 
Easement by way of prescription:(a) If the enjoyment of easement would result destruction of right or property in which easement if claimed.

(b) If the right is for free passage of light or air through a open space or ground.

(c)  Water not flowing in a stream and not permanently collected in pool or tank or otherwise.

(d) Similarly one cannot claim right under this category if the water in underground not flowing in defined channel.

Kinds of Easements:

 classifies easements into: a) continuous         b) discontinuous       (c) apparent       (d) non-apparent

(a) A continuous easement is one whose enjoyment is or may be continual without the act of man. Ex: A right annexed to A’s house to receive lght by the windows without obstruction by his neighbour.

(b) A discontinuous easement is one that needs the act of man for its enjoyment.Ex: A right of way annexed to A’s house over B’s land; because, to be enjoyed A must use it.

(c) An apparent easement is one the existence of which is shown by some permanet sign, which upon careful inspection by a competent person would be visible.Ex: A right is annexed to A’s land to lead water to it by an aqueduct across B’s land and from there, draw it off by a drain.

(d) A non-apparent easement is one, which has no such sign.Ex: A right annexed to A’s land to prevent from bilding on his own land.

Rights and liabilities of dominant owner (S.20 to 31):

1. E must be used only for the enjoyment of the dominant heritage.
2. Dominant owner must exercise his right in the mode which is least onerous to the serviernt owner.
3.  Dominat owner without imposing any addittional burden on the servient heritage, may, from time to time, alter the mode and place of enjoyment of E. However, if it is right of way, it cannot be varied at pleasure, even though he does not thereby impose any addittional burden on the servient heritage.
4.  Dominat owner is entitled to do all acts necessary to secure the full enjoyment of the E without determinent to the servient owner and servient hertiage.
5.  The expensees incurred for the acts done so as to use or preservation of an easemnet, must be defrayed by he dominat owner..
6. If E is enjoyed by means of an artificial work, the dominat owner is liable to make compensation for any damage to the serviernt heritage arising from the want of repair of such work.(S.26).
7.  The servient owner is not bound to do any thing for the benefit of the dominat heritage. However, he must not do any act tending to restrict the E, or to render its exercise less convenient (S.27).
8. The dominat owner cannot by merely altering or adding to the dominant heritage, subsantially incease an E. (S.29)
9. If the dominat heritage is divided between two or more persons, the E, becomes annexed to each of the shares, but not so as to increase substantially the burden on the servient heritage: Provided that such annexation is consistent with terms of the instrument, decree or revenue proceeding under which the division was made, and, in the case of prescriptive rights, with the user during the prescriptive period.(S.30).
10. In the case of excessive user of an E the servient owner may, without prejudice to any other remedies to which he may be entitled, obstruct the user, but only on the servient heritage: Provided that such user cannot be obstructed when the obstruction would interefere with the lawful enjoyment of the E.(S.31).
11. With respect to the extent of Es and mode of their enjoyment, the following provisions shall take effect.

How the Easement rights lost?

An easement extinguishes u/s 45 revives due to following circumstances:

(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and

(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.

An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category.

How the Easementary rights are revived?

An easement extinguishes u/s 45 revives due to following circumstances:

(a) If the destroyed heritage before the expiry of twenty years restored by the deposit of alluvion.
(b) If the destroyed heritage is a servient building and before twenty years have expired such building is rebuilt upon the same site; and

(c) If the destroyed heritage is a building and before the expiry of twenty years, if it is rebuilt upon the same site provided it doesn’t impose greater burden on the servient heritage.

An easement extinguised u/s 46 revives when grant or bequest by which the unity of ownership was produced is setaside by the decree of a competent court. Easemnet of necessity extinguishes under the same section revives when the unity of ownership ceases from any other cause.

A suspended easement revives if the cause of suspension is removed before the right is extinguished under section 47.

Remedy: A person who has fulfilled the above elements can claim either Easement by prescription or necessity as a matter of right can enjoy them and in the event of challenge made by any person can ask the court to declare them categorically by stating that they have acquired easementary right under the above said category

SPECIFIC RELIEF ACT, 1963

Specific Relief Act is a window of reliefs. Remedies provided under this law are:  Recovery of possession, Suit for specific performance, Suit for injunction, Suit for declaration and Suit for injunction, Suit for declaration, recovery of possession and injunction and damages, suit for cancellation, Suit for rectification. These are some remedies parties can also seek apart from other remedies provided under any contract or law. This Act is a bridge between substantive civil law and procedural civil law.  Substantive civil only talks about right and duties but it didn’t specify mode of redressing the grievance and whereas procedural law tells about adjudication of civil rights with the aid of CPC and Civil rules of practice but it didn’t specify with what remedies they must be solved. But it is the Specific relief act talks about various remedies to resolve civil disputes and principles court shall apply in resolving those disputes with the aid of these remedies.  Therefore, Specific Relief Act is called window of reliefs. It must be noted that Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

 

S.2. Definitions: (a) “Obligation” includes every duty enforce by law.

(b) “Settlement” means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925) whereby the destination or devolution of successive interests movable or immovable property is disposed of or is agreed to be disposed of.

(d) “Trustee” includes every person holding property in trust.

(e) All other words and expressions used herein, but not defined, and defined in the Indian Contract Act, 1872, have the meanings respectively assigned to them in that Act.

S.3. Savings: Nothing in this Act shall be deemed. –

(a) To deprive any person of any right to relief, other than specific performance, which he may have under any contract.

(b) To affect the operation of the Indian Registration Act, 1908, on documents.

S.4.: It says Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law.

Recovery of Possession: It can be studied under two heads. They are: General remedy and summary remedy. Under General Remedy a person who is entitled to legal possession of property can in the event of dispossession, file a suit for recovery of its possession. The rules relating to General Remedy are governed by Code of Civil Procedure 1908 (S.5 &7). Under summary remedy (S.6 of the Act) a person who is in settled possession of immovable property is dispossessed though he is having or not having legal title to property, he can file a suit for recovery of its possession. However, such person shall file suit within six months from the date of dispossession. If such dispossession is caused by government this remedy can’t be invoked. There shall be no appeal from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed. It must also be noted that invoking of this remedy is not from suing to establish his title to such property and to recover possession thereof. The philosophy behind this section is that law discourages forcible dispossession from immovable property even by owner and thereby prevent private people to take law into their hands.

Specific Performance (S.10): Conditions: There exists no standard to ascertain the actual damage caused by the non-performance of the act agreed to be done or That the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.

Explanation: If the breach is relating to transfer of immovable property court shall presume that compensation in money is not adequate relief and contra is the presumption in case of movable property. However if the movable property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market. Further, if the property is held by the defendant as the agent or trustee of the plaintiff.

S.11 says that specific performance can be enforced when the act agreed to be done is wholly or partly is in the performance of a trust. An exception is that the contract must not be in excess of the power of a trustee.

S.12 says that if, in the discretion of the court, only a small part of a contract cannot be specifically performed and if such part can be alternatively compensated, the rest of the part can be specifically enforced.

Personal Bars to relief:  Sec. 16 refers to the personal bars to relief, namely:

(i) the person who is not entitled to recover compensation for breach of its contract,

(ii) who has become incapable for performing, or violates any essential term of the contract that on his art remains to be performed or acts in fraud of the contract, or willfully acts of variance with, or in subversion of, the relation intended to be established by the contract; or

(iii)  That the party who fails to aver and prove that he has 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 terms, the performance of which has been prevented or waived by the defendant.  Sec. 16 (c explanation, denotes that where the contract involved payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so ordered by the court.

Readiness and Willingness:  Regarding explanation (ii) of Cl.(c) of section 16, the position is settled that the plaintiff should not only aver but also to prove his continuous readiness and willingness to perform his part of contract at all material times, right from date of contract till the date  of decree/execution of sale deed.  Some courts are of the opinion that this should be specifically pleaded in the plaint.

S.20. Discretion as to decreeing specific performance:

(1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

(2) The following are cases in which the court may property exercise discretion not to decree specific performance:-

(a) Where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the -contract was entered into are such that the contract, though not void able, gives the plaintiff an unfair advantage over the defendant; or 

(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff, or

(c) Where the defendant entered into the contract under circumstances, which though not rendering the contract void able, makes it inequitable to enforce specific performance.

Explanation 1:-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause

(a) or hardship within the meaning of clause (b).

Explanation 2:-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.

(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.

(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the party.

Suit for Rectification (S.26):Conditions: If through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956, applies) does not express their real intention, then- either party or his representative in interest may institute a suit to have the instrument rectified; or

Suit for Cancellation (S.31): Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument. if left outstanding may cause him serious injury, may sue to have it adjudged void or void able; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.

Suit for Rescission(S.27): If any person interested in a contract may sue to have contract rescinded in any of the following cases namely:-

(a) Where the contract is voidable or terminable by the plaintiff,

(b) Where the contract is unlawful for causes not, apparent on its face and the defendant is more to blame than the plaintiff.

(2) Notwithstanding anything contained in subsection (1), the court may refuse to rescind the contract-

(a) Where the plaintiff has expressly or impliedly ratified the contract; or

(b) If owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or

(c) If third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or

(d) If only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.

Suit for declaration(S.34):Conditions: 1) That the plaintiff is entitled to a legal character at the time of the suit or any right as to any property.

2) Defendant has denied or he is interested to denying that character or right of the plaintiff.

3) The plaintiff is not in a position to ask for relief consequential upon the declaration. IF these conditions are satisfied, the plaintiff need not ask for any further relief than mere declaration. But the court shall not make any such declaration if he, being able to seek further relief than a mere declaration of title, omits to do so. (For details see under heading further relief)

Injunction(S.38): Conditions: Injunction is granted to prevent the breach of obligation existing in favour of the plaintiff and against the defendant. The term obligation means a duty enforceable by law.

Additional conditions: 1) There  exists no standard to ascertain the actual damage caused, or likely to be caused, by the invasion;

2) If  the invasion is such that compensation in money would not be affordable relief; c) Injunction is necessary to prevent multiplicity of proceedings.S.41 says when Injunction shall not be granted.

S.41. Injunction when refused: An injunction cannot be granted. –

(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restrain is necessary to prevent a multiplicity of proceedings;

(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;

(c) To restrain any person from applying to any legislative body.

(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;

(e) To prevent the breach of a contract the performance of which would not be specifically enforced;

(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will  be a nuisance;

(g) To prevent a continuing breach in which the plaintiff has acquiesced;

(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;

(j) When the plaintiff has a no personals interest in the matter. S.42: If the contract consists of positive agreement and negative agreement, merely because court enforce positive agreement it doesn’t bar the court to enforce the specific performance of negative agreement.  However, plaintiff has to perform his part of contract so far as it is binding on him.

LIMITATION ACT, 1963:

Right is not extinguished but right to agitate it is barred. However, adverse possession and Easement by prescription are exceptions to this rule.

The following are the kind of Files we see in Courts: Suit, application or Petition, Appeal, Revision, Execution Petition. If presentation of file is after expiry of time period, such file shall be dismissed even if such defense is not taken by the defendant. This is the duty of the court. In case of pauper the date on the application to permit him to treat as pauper is the date of institution of suit.  IN case of set-off the date on which it is claimed in the written statement. In counter-claim the date on which it is claimed.

Extension Time period for various kinds of files:

Sufficient Cause: As per S.5 the court can entertain filing of an appeal or an application if sufficient cause is shown for fling them after the expiry of prescribed period of limitation. This rule of sufficient cause is not applicable to suits and execution proceedings under O21 of C.P.C. However, O.21 Rule 105 CPC, 1908 permits to file execution application on this ground.

 Closure of Court:  If the court is closed on last day on which suit, appeal or application has to be filed, the same can be filed on the next working day. If the court is closed during any part of its normal working hours it remains closed on that day.

 Legal disability: Person in whose favour right to sue arises is suffering from any of the following disabilities, he can file the proceeding upon the cessation of disability. There are three kinds of legal disabilities:

  1) minority      2) insanity     3) idiocy.

  (a) If a person suffering from one disabilty is affected again by another disability, such person can file suit after     cessaton of both disabilities.

   (b) If the legal disability continues tilll death of his legal representative can file within same period after the death of the disabled person.

   (c) If legal representantives also affected by any above said liability.The application of limitation starts after recovery from such liabilty.

   (d) Where disability is ceased then the person died, within the allowed period to him, his legal representatives can file within remaining period. No fresh period available.

This section doesnot apply to following proceediungs:

1. Applicaion for final decree in mortgages.

2. For leave of appeal

3. Application to setaside expartee decree.

4. Application for pre-emption.

5. For the purpose of this section minor includes a child in the womb.

S.7 Disability of one of several persons : If one of the several persons jointly entitled to insitute a suit or make an application for the execution of decree is under disability, time will run against them if the discharge can be given without the concurrence of such person.

Time will not run against them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.

S.8: In no case, after ceasition of disability or death, time will not run for more than three years for any suit or application. S.6&7 also donot have application to enforce rights of pre-emption.

 S.9: Once time has begun to run, no subsequent disability or inability to institute a suit or make an application stop it.

 S.10: The above rules in this Act of limitation are not applicable in a suit against a person in whom the property has become vested in trust for specific purpose.

Section 12: The starting day is excluded from counting limitation. The time taken for obtaining certified copies shall be excluded.

Section 13: The time spent for obtaining leave, so as to file suit as an indigent is excluded.

Section 14: If suit is filed in a court which has no jurisdiction is excluded, provided it is done with good faith after exercising due diligence.

Section 15: If any suit or application for the execution of a decree has been stayed by an injunction order, such time period shall be excluded. If notice or sanction is required to file proceedings before court shall be excluded. Person in whose favor or against cause of action exists is died and there is no legal representative to such the time period during which legal representative comes into existence time shall be excluded. If any person purchased the property in the execution of court decree but one of the interested party sought for seaside of sale and same is pending but was dismissed ultimately, this period is excluded from in calculating the suit for possession filed by such auction purchaser. The time during which the defendant is absent from India or from.

Person died or non-existence of legal representative: If a person in whose favor or against whom cause of action exists is died and there is no legal representative to sue or to be sued, till the arrival of  legal representative of such deceased, time shall be excluded(S.16).

 S.17:  Effect of fraud or mistake : If due to fraud or mistake on part of the defendant or respondent plaintiff could get the knowledge of his right or title, the period during such fraud or  mistake occurred is excluded from period of limitation. The application must be filed within one year from the date of knowledge of fraud or mistake.

 

Days Excluded From time period due to Technical Reasons:

1. The day on which court is closed.
2. The day from which such period is to be Counted for any suit, appeal or appliaction.
3. Time between date on which Judgment pronounced and the time requisite for obtaining a copy of the decree (Appeal or an application for leave to appeal or for revision or for review of a judgement).
4. The time during wihich the application to sue or appeal as a pauper has been prosecuting for such leave shall be exculded.
5. The time which the plaintiff has been prosecuting with due diligence another civil proceeding against the defendant provided the procedding relates to the same matter in issue: (a)It must be prosecuted in good faith  (b)Defect of jurisdiction or cause of like nature, court unable to entertain it.  Order 23 R 2 of C.P.C shall not override S.S(1).

6. If any suit or application for the execution of a decree has been stayed by injunction or order.
7. If notice or sanction is required such time shall be excluded.
8. For any suit or application for execution of a decree by any receiver appointed in proceedings for the adjudication of a person as an insolvent, the period beginning with the date institution of such proceeding and ending with the expiry of three months from the day of appointment of such receiver or liquidator, as the case may be, shall be excluded. This provision applies for an application for execution of a decree by any receiver. Similarly, this provision is applicable to any liquidator appointed for winding up of a company.
9. IF any person purchased the property in the execution of court decree but one of the interested party sought for setaside of sale and same is pending but was dismissed ultimately, this period is excluded from in calculating the suit for possession filed by such auction purchaser.
10. The time during which the defendant is absent from India or from the territories outside India are excluded for period of limitation for any suit.

Acknowledgement by person under liability:  Acknowledgement by person under liability means an admission of the truth of one‘s own liability. If before the expiry of time for any application or suit in respect of any property, the acknowledgement of liability in respect of such property or right is made in writing signed by the party against whom such property or right is claimed a fresh period of limitation is computed from the time when the acknowledgement was so signed (S.18)

Part Payment by person under liability: If there is a part payment of debt or of interest on a legacy before the expiry of limitation period fresh period of limitation shall be computed from the time when the payment was made. Further, person making part payment should indorse the same and should sign(S.19).

 Time Period for Certain Important Suits:  Period of limitation means the period of limitation prescribed for any suit, appeal, or application by the schedule and prescribed period means the  period of limitation computed in accordance with the provisions o f the Act.

There are 137 clauses, spread over three divisions.

Ist division speaks about suits (1 to 113).  IInd division speaks about suits (114 to 117)

IIIrd division speaks about suits ( 118 to 137).

In the first division there are 10 parts.

1. Suits relating to Accounts – 1 to 5 (three years limitation)
2. Suits relating to contracts – 6 to55 (three years limitation)

III. Suits relating to declarations – 56 to 58 (three years limitation)

1. Suits relating to Decres and instruments– 59 to 60 (three years limitation)
2. Suits relating to immovable property:61 to 67 (12 yrs limitation except 61 (a)(c)) A.61 (a) By a Mortagor to redeem or recover the possession of immovable property mortgaged- Thirty years A.61 (c) To recover surplus collection received by the mortgage after he mortgage has been satisfied – Three years. A.63(a) By a mortgagor for foreclousre: thirty years. VI. Suits relating to moveable property– 68 to 71 (three years limitation ) Suits for which there is no prescribed period – 113 (three years limitation ) In the second divison there is ony one part. This dividion is named as Appeals(114 to 117).                                                                                                                                                                                                                                                                                                                        Time Period for Certain Important applications:                                                                                                   1. Leave to appear and defend in a summary suit: 10 days (118).                                                                                    2. To bring L.R‘s on abatement : 90 days(120).                                                                                                                       3. To setaside an abatement : 60 days(121).                                                                                                                        4. To setaside a sale in execution of decree, including any such application by a Judgeemnt Debtor : 60 days(127).                                                                                                                                                                                           5. For leave to appeal as a pauper to High court: 60 days(130).                                                                                      6. To any court for exercise of its powers of revision u/ cpc or cr.pc: 90 days(131).                                                      7. To the High court for a certificate of fitness to appeal to supreme court u/cl(1) of 132A or 133 or 134 (c) of the constution : 60 days(132).                                                                                                                                                     8.To the supreme court for SLP —- in case of death sentence if leave to appeal is refused : 60 days —In any other case : 90 days (133).                                                                                                                                                  9.For delivery of possession by a purchaser of immovable property at a sale in execution of decree ——- one year(134).                                                                                                                                                                                          10. Execution of decree of granting Mandatory injunction : three years(135).                                                                11. Execution of decree other than Mandatory injunction : 12 years(136).                                                                   12. Any other application for which no period is prescribed elsewhere in this division: three years(137).

THE PROTECTION OF WOMEN FROM DOMESTIC VIOLENCE ACT, 2005:

 Who is an aggrieved?                                                                                                                                                      Ans: As per S.2 the term aggrieved person means any woman who is, or has been, in a domestic relationship with the respondent and who alleges to have been subjected to any act of domestic violence by the respondent.

Who is a Child?                                                                                                                                                                            Ans: As per S.2 the term Child means any person below the age of eighteen years and includes any adopted, step or foster child.

Whether Minor male is entitled for reliefs under this Act?                                                                              Ans: Yes, as the term “child”is defined under the law, minors will also be within the ambit of the definition of domestic relationship. Section 2(b) DV Act defines Child.

The mother can make an application on behalf of her minor child (whether male or female). In cases where the mother makes an application to the court for herself, the children can also be added as co-applicants for a relief under the DV Act. The Court can also, whenever appropriate, appoint a guardian or next friend to represent the child.

The female who is in “live-in relationship” or “relationships in the nature of marriage” is entitled for relief under the Said Act?                                                                                                                                               Ans: Yes, Sec 2(f)of the DV Act defines the expression “Domestic Relationship” or “Relatiosnships in the nature of marriage” includes those relationships where there is no marriage between the parties in the sense of solemnization of a marriage under any law. Yet the parties represent to the world that they are a couple and there is stability and continuity in the relationships. Such relationships also known as “live-in relationship”

Different court judgments have discussed on different disputes pertaining to live-in relationships. Live-in relationships are now considered on par with marriage under a new Indian law pertaining to domestic violence. The provisions of the Domestic Violence Act, 2005 are now extended to those who are in live-in relationships as well. The amendments intend to protect the victims of domestic abuse in live-in relationships. Section 2 (g) of the aforementioned Act provides that a relationship between two individuals who live together or have lived together in the past is considered as a domestic relationship. A woman who is in a live-in relationship can seek legal relief against her partner in case of abuse and harassment.

What are the features of the live-in relationships?                                                                                              Ans: In Velusamy v/s Patchaiammal (2010) The Supreme Court stated that a ‘relationship in the nature of marriage’ is akin to a common law marriage. For the purposes of claiming benefits under the domestic violence law, the claimant must satisfy four requirements i.e. (a) the couple must hold themselves out to society as being akin to spouses; (b) they must be of legal age to marry; (c) they must be otherwise qualified to enter into a legal marriage, including being unmarried and (d) they must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.

Does the use of term domestic relationship bring “relationships in the nature of marriage” on par with marriages?                                                                                                                                                          Ans: The law simply provides protection from violence to all women whether they are sisters, mothers, wives or partners living together in a shared household. The law however, does not state anywhere that an invalid marriage is valid. It provides protection from violence, the right to reside in the shared household, temporary custody of children ,etc. However, for succession to the property of a male partner or in deciding the legitimacy of children, the general law of the land or the personal laws of parties will have to be relied upon.

 

Against whom the complaint can file?                                                                                                                       Ans: A women can file a complaint against any adult male perpetrator (S.2 (q)) of an act of violence. In cases where the woman is married, or lives in a relationship that is in the nature of marriage, she can also file a complaint against the male or female relatives of the husband /male partner who have committed the violence.

Who fall within the meaning of” relatives” under Section 2(q)?                                                                    Ans: The word “relative “has not been defined in the DV Act. Hence the ordinary meaning will have to be assigned i.e., father, mother, sister, uncle, brother of the respondent who may included in the word “relative in section 2(q). It also include female relatives.

Can a complaint filed against husbands’ female relatives?                                                                                Ans: Yes, orders can be passed against the female relatives of the husband except the relief of dispossession against the female relative under sec.19 (1) of the Act.

Can mother in law file an application for reliefs against the daughter-in- law?                                        Ans: No, a mother –in –law cannot file an application against her daughter-in –law(Section 2(q))However in cases where a mother-in-law is facing violence at the hands of her son and daughter-in –law as abetting the acts of violence committed by the son.

How long does an interim order remain in force for?                                                                                           Ans: Interim orders shall remain in force till such time either of the parties applies for its alteration, modification or revocation. In order to get such an order, a change in circumstances has to be shown (section 25(2)).Interim orders are also vacated on the granting of the final order by the Court.

Will a divorced wife have a right to claim relief under this DV Act from her Ex-husband?                 Ans: The answer to this question depends on the facts of the case. In cases where, at the time of divorce, she has in express terms waived such a right, she cannot claim it in the future.

Can there be any appeals from an interim orders?                                                                                              Ans: Section 29 of the DV Act allows appeals to session courts from any orders passed by magistrate. No appeal should lie from an order which have not affected the rights of the parties or is procedural.

Only married men are in danger?                            .                                                                                                  Ans: No. Domestic Violence Bill extends to live-in relationships too.

 What is the meaning of Domestic relationship?                                                                                                    Ans: Domestic relationship means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family.

Who is a respondent?                                                                                                                                                       Ans: As per S.2(q) “respondent” means any adult male person who is, or has been, in a domestic relationship with the aggrieved person and against whom the aggrieved person has sought any relief under this Act:   Provided that an aggrieved wife or female living in a relationship in the nature of a marriage may also file a complaint against a relative of the husband or the male partner.

What is meant by Shared house hold?                                                                                                                       Ans: As per S.2(s) the term  “shared household” means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person

and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household;

What is the meaning of the term domestic violence?                                                                                          Ans: As per S.3(g) of the Act, the term “domestic violence” has the same meaning as assigned to it in section 3; S.3 defines it as follows:

Definition of domestic violence.-For the purposes of this Act, any act, omission or commission or conduct of the respondent shall constitute domestic violence in case it –

(a) harms or injures or endangers the health, safety, life, limb or well-being, whether mental or physical, of the aggrieved person or tends to do so and includes causing physical abuse, sexual abuse, verbal and emotional abuse and economic abuse; or

(b) harasses, harms, injures or endangers the aggrieved person with a view to coerce her or any other person related to her to meet any unlawful demand for any dowry or other property or valuable security; or

(c) has the effect of threatening the aggrieved person or any person related to her by any conduct mentioned in clause (a) or clause (b); or

(d) otherwise injures or causes harm, whether physical or mental, to the aggrieved person.

Explanation I.-For the purposes of this section,-

(i) “physical abuse” means any act or conduct which is of such a nature as to cause bodily pain, harm, or danger to life, limb, or health or impair the health or development of the aggrieved person and includes assault, criminal intimidation and criminal force;

(ii) “sexual abuse” includes any conduct of a sexual nature that abuses, humiliates, degrades or otherwise violates the dignity of woman;

(iii) “verbal and emotional abuse” includes-

(a) insults, ridicule, humiliation, name calling and insults or ridicule specially with regard to not having a child or a male child; and

(b) repeated threats to cause physical pain to any person in whom the aggrieved person is interested.

(iv) “economic abuse” includes- (a) deprivation of all or any economic or financial resources to which the aggrieved person is entitled under any law or custom whether payable under an order of a court or otherwise or which the aggrieved person requires out of necessity including, but not limited to, household necessities for the aggrieved person and her children, if any, stridhan, property, jointly or separately owned by the aggrieved person, payment of rental related to the shared household and maintenance;

(b) disposal of household effects, any alienation of assets whether movable or immovable, valuables, shares, securities, bonds and the like or other property in which the aggrieved person has an interest or is entitled to use by virtue of the domestic relationship or which may be reasonably required by the aggrieved person or her children or her stridhan or any other property jointly or separately held by the aggrieved person; and

(c) prohibition or restriction to continued access to resources or facilities which the aggrieved person is entitled to use or enjoy by virtue of the domestic relationship including access to the shared household.

Explanation II.-For the purpose of determining whether any act, omission, commission or conduct of the respondent constitutes “domestic violence” under this section, the overall facts and circumstances of the case shall be taken into consideration.

Who has power to inform the protection officer or Magistrate about the occurrence of Domestic violence?                                                                                                                                                                                    ANs: As per S.4 any person who has a reason to believe that  an act of domestic violence has been, or is being, or is likely to be committed, may give information about it to the concerned Protection Officer or magistrate. And there is no liability, civil or criminal, shall be incurred by any person for giving in good faith of information given

What is the procedure for obtaining orders under this Act from the court?                                             Ans: The relevant procedure can be known from S.12 to 17.

1)  Any aggrieved person or a protection officer or any person on behalf of the aggrieved person may present an application to the magistrate seeking one or more reliefs under this Act.

2) The relief sought in the application may include payment of compensation without prejudice to the right to institute a suit for damages and compensations for injuries caused due to domestic violence.

3) On registration of application, the Magistrate shall fix the first date of hearing, which shall not be beyond three days from the date of receipt of application.

4) Every application shall be disposed off within sixty days from the date of its first hearing as far as possible.

5) The notice of summons to the respondent or any other person will be entrusted to the protection officer who shall serve on the respondent within maximum of two days.

6) During the stage of the proceedings the magistrate may direct the respondent or aggrieved person singly or jointly to undergo counseling with any member of a service provided who is qualified in that respect.

7) When such a directions are give he shall fix the next date of hearing within a period not exceeding two months.

8) The magistrate may secure the service of such person preferably a woman, whether related to the aggrieved person or not to assist him in discharge of his functions.

9) The Magistrate may conduct the proceedings in camera if the situation so warrants

10) Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household whether she has any right or beneficial interest in the same.

What are the orders that can be passed by the Magistrate?                                                                              Ans: The relevant procedure can be known from S.18 to 25.

The magistrate may after giving the aggrieved person and the respondent an opportunity of being heard and on being prima facie satisfied that domestic violence has taken place or is likely to take place may pass a protection order in favour of the aggrieved person:-

Protection orders: S.18: A protection order may contain an order prohibiting the respondent:

1) from committing any act of domestic violence.

2) aiding or abetting in the commission of acts of domestic violence.

3) violence entering the place of employment of the aggrieved person or if child, its school or any other palace frequented by the aggrieve person.

4) attempting to communicate with aggrieved person with the aggrieved person without the leave of the magistrate.

5)  alienating the assets, operating bank lockers or bank accounts used or held or enjoyed by both the parties.

6) Causing violence to the dependents other relatives or any person giving assistance to the aggrieved person.

7) Or committing any other act provided in the protection order.

Residence orders: (S.19)): 1) The magistrate while disposing of the application may also pass a residence order:-

(a) restraining the respondent from dispossessing or disturbing the possession of the aggrieved person from the shared household.

b) restraining the respondent or his relatives from entering the shared house hold

c) restraining the respondent from alienating or disposing off or encumbering the shared house hold

d) restraining the respondent from renouncing his rights in the shared household except with the leave of the court

e) irecting the respondent to secure alternate accommodation to the aggrieved person of the same level enjoyed by her in the shared house hold or to pay rent for the same:

Provided that no order directing the respondent to remove herself from the shared household shall be passed against any person who is woman.

2)  The magistrate may impose additional conditions or pass any other directions in order to protect the safety of the aggrieved person or her child

3)  he magistrate also order for execution of a bond by the respondent for prevention of domestic violence

4)  An order also may be passed directing the police to give protection to the aggrieved or to assist in the implementation of the orders.

5)  An order may also be made to pay the rents and also to return the stridhan property or valuable security to which she is entitled

What orders can be passed by Magistrate w.r.t monetary reliefs?                                                               Ans:  S.20  1) The  Magistrate while disposing an application under sub-section (1) of section 12, the Magistrate may direct the respondent to pay monetary relief to meet the expenses incurred and losses suffered by the aggrieved person and any child of the aggrieved person as a result of the domestic violence and such relief may include, but not limited to:-

(a) the loss of earnings;     (b) the medical expenses;          (c) the loss caused due to the destruction, damage or removal of any property from the control of the aggrieved person; and

(d) the maintenance for the aggrieved person as well as her children, if any, including an order  under or in addition to an order of maintenance under section 125 of the Code of Criminal  procedure, 1973 or any other law for the time being in force.

(2) The monetary relief granted under this section shall be adequate, fair and reasonable and consistent with the standard of living to which the aggrieved person is accustomed.

(3) The Magistrate shall have the power to order an appropriate lump sum payment or monthly payments of maintenance, as the nature and circumstances of the case may require.

4) The Magistrate may also order the employer or debtor of the respondent to make payment direct to the aggrieved person or deposit with the court a portion of the wages or salaries or debt due to or accrued to the respondent

Whether Magistrate can pass custody orders?                                                                                                      Ans: Pending the proceedings the magistrate may grant temporary custody of any child to the aggrieved peon or to any one on her behalf and specify the arrangements for the visit of such child by the respondent.

Whether Magistrate can pass Compensation orders?                                                                                        Ans: The magistrate can pass an order directing the respondent to pay compensation and damages for the injury, mental torture and emotional distress caused by the acts of domestic violence committed by the respondent.

Which court has Jurisdiction to entertain applications under this Act?                                                     Ans: S.27 of the Act talks about Jurisdiction. It says the Judicial Magistrate of First class can entertain applications under this Act in any of one of the following conditions are satisfied: a)  the person aggrieved permanently or temporarily resides or carries on business or is employed; or  (b) the respondent resides or carries on business or is employed; or

(c) the cause of action has arisen, shall be the competent court to grant a protection order and other orders under this Act and to try offences under this Act.

(2) Any order made under this Act shall be enforceable throughout India.

26. Whether violation of protection order is an offence under this Act?

Ans: yes as per S.31(1) ,the violation of protection order or interim protection order by the respondent is an offence under this Act and shall be punishable with imprisonment of either description for a term which may extend to one year, or with fine which may extend to twenty thousand rupees, or with both. As per S.32, the offence is cognizable and non-bailable. The sole testimony of the aggrieved person is adequate for the court to conclude that an offence under sub-section (1) of section 31 has been committed by the accused.

If protection officer fails discharge his duties he shall be liable to imprisonment which may extend to one year or with fine which may extend to twenty thousand rupees or with both.   This Act is in addition to existing laws. Appeal lies to Court of Session from any order passed by Magistrate. The time limitation to file appeal is thirty days on receipt of order by aggrieved person aggrieved by the order. (S.29). The Protection officers are public servants as per S.21 of the IPC. The applications under this Act shall be disposed as per Cr.P.C. The copies of orders shall be given to the parties to the application free of cost.

HINDU MARRIAGE ACT,1955:

Who is Hindu?                                                                                                                                                                                      Ans: This Act applies to Hindus (including converted), Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.

What are the conditions for marriage?

1) Capacity to marry   2) Formalities of marriage.

Capacity to marry: This Capacity constitutes several aspects: i) not already married, ii) Age of marriage, iii) Mental capacity iv) Prohibition on account of relationship by blood or affinity (Sapinda relationship and Degrees of prohibited relationship).

Age of marriage: Bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; It is void under SMA but not under any other personal laws. If a minor Hindu marries, it shall be neither void nor voidable but valid.

Mental capacity-Soundness of Mind: Under Hindu law, a marriage on account of lack of mental capacity is voidable at the instance of the other party, but under the SMA, it is void. Prohibition on account of relationship by blood or affinity is void.

a)Sapinda Relationship. b) Prohibited relationship.

A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken.

What are the legal consequences of violating conditions of marriage?                                                                            Ans: Basing kind of violation of condition of marriage, civil legal consequences are of two kinds:

Void marriage (S.11): a) Bigamy,    b) Prohibited degree of relationship   c) Sapinda relation.

Voidable marriage (S.12):  (a) Not consummated due to impotency of respondent

(b) Unsound mind or suffering from mental disorder to such an extent for unfit for marriage and for procreation of children or recurrent attacks of insanity or epilepsy (S.5 (ii))

(c)  Consent is obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

The remedy to petitioner for occurrence of marriage contrary to conditions laid down under S.5, or 11 or 12 is to obtain decree of nullity.

What are rights of parties to marriage?

Ans: 1)Restitution of conjugal rights (S.9)       2) Judicial separation(S.10)

3) Right to divorce( S.13,13B)                    4) Custody of child(S.26)

5) Right of maintenance (24 & 25)            6) Right to seek return of property (S.27).

What are the rights of off-springs born out of voidable or void marriage?

Ans: The children born out of whether valid or void or voidable marriage are legitimate.   However, they can’t acquire rights in the property other than the parents.

What are the grounds for Divorce?

Ans: S.13 list out grounds for Divorce:   a) Adultery          b) renunciation of the world Desertion       c) Cruelty         d) Insanity      e) Leprosy     f) Venereal diseases      g) Conversion                                                                                             h) Presumption of death: unheard for seven years                                                                                                                      i) has not complied with a decree of RCS for one year or more after the passing of decree                                                 j) has not resumed cohabitation for one year or upwards after the passing of a decree for judicial separation. 

A wife has the following additional grounds for divorce:                                                                                            1) that the husband is guilty of Rape, Sodomy and Bestiality.                                                                                                      2) that she has repudiated before attaining 18 years of age her marriage solemnized before she attained 15 years age.  3) That a maintenance order has been passed against the husband and there is no cohabitation thereafter for one year or upwards.

Which court has jurisdiction claims under this Act?

Ans: The Sub-ordinate civil judge.  The appeal lies to district court.  It shall be filed within thirty days. Decree can be enforced as per O.21 CPC

Sapinda relationship:  For any person it extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Similarly, two persons are said to be “sapinda” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

 Degrees of prohibited relationship: If  two persons are said to be within the “degrees of prohibited relationship”:-

(i) if one is a lineal ascendant of the other; or       (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Explanation.- for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;   (ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

Rights of Parties to Marriage:

Restitution of Conjugal rights (s.9): If one of the party to the marriage without any reasonable excuse, withdrawn from the conjugal society the other can seek this relief. The court on proof of the same may decree restitution of conjugal rights accordingly. The burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Judicial separation (s.10): It says either party to the marriage can file a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13. Once the decree for JS is passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court, may on the application by petition of either party and by considering the truthfulness in it, rescind the decree of JS.

Right of Divorce: 13-A. The court in a petition four seeking divorce can also grant a decree for judicial separation having regard to circumstances  but in case of the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13.

Divorce by mutual consent: 13-B:

Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together.  If same is found it to be true, court can pass a decree six months after receipt of divorce application.

If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).

Right of Maintenance (S.24 & 25)

Any party pending petition for divorce can grant maintenance to either of the party. Such order shall be made basing on the income of either of the parties.

The court upon the disposal of the divorce petition can order the respondent to pay to the applicant for her or his maintenance and support such gross sum for a term not exceeding the life of the applicant.   The court while passing such order shall take into consideration following facts: a) Income of the parties b) Conduct of the parties c) Other circumstances.

The court can grant such maintenance either on monthly or periodical basis.

This order can be varied or modified or rescinded subsequently basing on changed circumstances.

The above order is applicable only if other party is not re-married or, if the party is not having sexual intercourse with anyone.

Right to have Custody of children(S.26):.- The Court while conducting proceedings under this Act can pass such interim orders for the purpose of custody, maintenance and education of minor children, consistently with their wishes. The same may be made part of the decree. The Court may also from time to time revoke, suspend or vary any such orders and provisions previously made as necessary.

Right to property: As per S.27 the court while conducting proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband and the wife.

Status of child born out of void or voidable marriage: S.16 says children born out of void and voidable marriages are legitimate.

Divorce by mutual consent: 13-B:

Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together.  If same is found it to be true, court can pass a decree six months after receipt of divorce application.

If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).

HINDU SUCCESSION ACT:

Succession: It talks about passing of property to legal heirs of a Hindu, when he or she dies without making a will. The moment a Hindu dies intestate, his heirs (in order of succession) become entitled to succeed to his property.  The Act overrides all Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order or preference among them.

Application: This Act applies to Hindus (including converted), Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.

 Male Hindu: The property of an intestate Hindu male devolves on the following heirs in the order specified below:

(a) Firstly, upon his Class I heirs.

(b) Secondly, if there is no Class I heir, then upon his Class II heirs.

(c) Thirdly, if there is no Class II heir, then upon his Agnates.

(d) Fourthly, if there is no Agnate, then upon his Cognates

The order of succession is in the order specified above. Thus, Class I heirs take the property in exclusion to all others and so on and so forth. The following 12 heirs are Class I heirs –

Son, daughter, widow, mother, son/daughter of a predeceased son/daughter, widow of a predeceased son, son/daughter/widow of a predeceased son of a predeceased son. The above Class I heirs take the property in priority succession to all other heirs. Amongst themselves the distribution is as follows:

(i) The intestate’s children, mother and widow each take one equal share.

(ii) The heirs in the branch of each predeceased child take one share between them.

Class II heirs: The following heirs are Class II heirs –

I. Father             II. Son’s daughter’s children and Siblings          III. Daughter’s grandchildren          IV. Children of Siblings      V. Father’s parents,      VI. Father’s widow (step-mother), Brother’s widow,       VII. Father’s siblings, VIII. Mother’s parents       IX. Mother’s siblings

 Among the heirs specified in Class II, those in the first entry take the property simultaneously and in exclusion to those in the subsequent entries and so on and so forth.

Female Hindu:

Devolves on the following heirs in the order specified below :

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and husband; 

(b) Secondly, upon the heirs of her husband;

 (c) Thirdly, upon her parents

(d) Fourthly, upon the heirs of her father.

(e) Fifthly, upon the heirs of her mother.

The order of succession is in the order specified above. Thus, the heirs in the first entry take the property simultaneously and in exclusion to all others and so on and so forth. Thus, the children and husband of a female Hindu take the property in preference to all other heirs specified.  The order of devolution as regards her husband’s heirs would be as if it was her husband’s property and he had died intestate.  The same principle would apply as regards devolution on her father’s heirs. S.15 (2) creates an exception. It says if a Hindu female dying intestate and without any issue or any children or any predeceased children, any property inherited by her from her parents shall devolve upon the heirs of her father. Such property shall not devolve upon the other heirs specified u/s. 15(1) but not devolve upon her husband or his heirs.

Miscellaneous:

Disqualified Legal Heirs:

1. Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married(S.24).
2. Person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
3. Converts descendants.
4. If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate (27).
5. Disease, defect, etc., not to disqualify.6. Escheat

Agnates and Cognates: Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through males. Agnates could be males or females. Thus, a father‘s brother‘s daughter is an Agnate but a father‘s sister‘s son is not an Agnate because the relation is not entirely through males.

Cognates On the other hand, two people are called Cognates of each other if they are related (by blood or by adoption) but not wholly through males. Cognates could be males or females. A mother‘s brother‘s daughter or a father‘s sister‘s son is a Cognate because the relationship is not wholly through males. The relationship of Agnates and Cognates does not extend to those relationships which arise because of marriage.  Among two or more Agnates/ Cognates, the order of succession is that the heir who has fewer or no degrees of ascent is preferred. If the degrees are same then those who have fewer or no degrees of descent are preferred.

 Full blood preferred to half blood, if the nature of the relationship is the same in every other respect.If two or more heirs succeed together to the property of an intestate, they shall take the property:

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes and

(b) as tenants-in-common and not as joint tenants.

Right of child in womb. A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

Presumption in cases of simultaneous deaths: If two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

 Preferential right to acquire property in certain cases:

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

REGISTRATION ACT:

PURPOSE: Registration is about keeping a private document in public records for the purpose of information to general public by collecting fee w.r.t legal rights and obligations arising out of a particular property. Thus, its objective is conservation of evidence, assurance of title, publicity of documents and prevention of fraud. SRO maintains 5 books. They are:

B–I: Registrar of non- testamentary documents relating to immovable property

B–II: Record of reasons for refusing to register  

B–III: Register of wills and authorities to adopt

B–IV: Miscellaneous register    

B–V: Deposit of wills

Authorities under the Act:

The state government shall appoint an officer to be Inspector general of registration in the state (S.3). For the purpose of this Act, the state government shall form districts and sub-districts. The state government may appoint one registrar to the district and the sub-registrar to sub-districts. This is the hierarchy under the Act: IG—DR—-SRO.  Generally, it is the sub-registrar who registers the document. S.31 says generally, it is the sub-registrar office is the place where documents are registered or documents are deposited. However, on special cause being shown registrar can attend at residence also. Documents relating to immovable property shall be presented for registration in the office of SRO within whose sub-district the whole or portion of the property to which such document relate is situate.  Document must be presented within four months from the date of execution except will. The four months delay can be condoned.

S.32 says following Persons are competent to present documents for registration:

1) Person executing it or claiming under it.

2) Representative or assignee of such person.

3) by the agent of such person or duly authorized power of attorney holder.

 
The Sub-registrar can verify about title, possession or encumbrances in respect of property sought to be registered or consider regsitrablity of the document w.r.t the provisions under the registration act or any law at the time of registration and refuse the same. If he decides that registration has to be refused, he has to pass an order for refusal, record the same in Book No.2 and make an endorsement on the document in the words ’registration refused’. In such case, he shall, without unnecessary delay furnish the executants or any person claiming under him, on his application a copy of the reason so recorded.

Instruments required to be Registration S.17 of the Act lists document required by law to be registered

1) Sale or exchange of immovable property of the value of Rs.100/- or upwards.

2) Simple Mortgage 

3) Instruments of gift of immovable property.

4) Other mortgages (except mortgage by deposit of title deeds) when the principal money secured is Rs.100/- or upwards. 5) Lease.

5)Instruments transferring or assigning any decree or order or award of a court of any award when such decree or award purports or operate to create, declare, assign, limit or extinguish.

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Consequences and Remedies for  non-registration: According to S.49 of the Act, an unregistered document required to be registered under law can’t be received in evidence except in case of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. S.5A of ROR Act.

Thus under the proviso to Sec. 49 of the Registration Act, an unregistered document, though inadmissible to prove the main or principal transaction, can be received as evidence of any collateral transaction or matter or purpose, not required to be effected by a registered document.  Thus there is no remedy for non-registration of instrument required by law to be registered except registration itself.

Where is the place of registration of documents in case of immovable property?

Ans: S.28 says every documents relating to immovable property shall be presented for registration in the office of SRO within whose sub-district the whole or portion of the property to which such document relate is situate. In case of court decree or order also the above rules applies.

Where is the place of registration of documents in case of movable property?

Ans: Document not coming u/a.s28 can be registered, where the document was executed or in the office of any SRO at which all persons executed and claim under the documents desires the same to be registered.

Is there any requirement of time period to get document registered after its execution?

Ans: Yes, S.23 says a document must be presented within four months from the date of execution except will. The four months delay can be condoned u/S.25.   S.24 says where are there several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution. U/s25 registrar has power to condone delay for four months provided by imposing fine not exceeding ten times can be levied before accepting for registration.   If the document is presented after eight months of its execution, the registrar has no jurisdiction to condone the delay, under any circumstances.   A will be presented or deposited at any time.

Is there any obligation on part of the registering authority to seek the opinion of the executants at the time of executing the document? What if executants refuse to execute the document?

Ans: According to S.35, it is the duty of SRO to get satisfied that person who is executing the document, is the one and same person or the person he is claiming to represent. For this purpose, he can examine any person. If any person appears and by whom document purports to be executed, denies its execution, it shall not be registered.  Further, if the executant is lunatic, minor, idiot or it has said that documents purports to be executed is dead or denies execution, document shall not be registered. If he is a registrar followed procedure under part-12 of the Act.

What is the procedure available in case executants denies the execution of document?

Ans: Yes, According to S.74 when denial is made in respect of a document, registrar shall inquire:-Whether the document has been executed b) whether the requirements of the law for the time being in force have been complied. Order of refusal must be placed in BooK no.2.  S.78 talks about remedy against refusal to register:- In case of registration is refused, the person aggrieved may file appeal before registrar, in the event of appellate authority refusing appeal, the person aggrieved may file suit u/S77 within thirty days.

Is there any appeal from the order of refusal to register by SRO on the ground of lack or deficiency of title.

Ans: yes, as per s.73 there is an appeal to District Registrar. Appeal must be preferred within thirty days. Such application must be in writing accompanied by SRO’s refusal order. For this purpose DR can conduct an inquiry. If District registrar allows appeal registration must be done within thirty days takes effect from the date, when it was presented.  In the event District Registrar dismissing the appeal as per S.78 the person aggrieved may file civil suit u/S77 within thirty days.

Is there any appeal from the order of refusal to register by SRO on the ground that executant denies executing document? 

Ans: S.73: If refusal is on the ground other than denial of execution, any person claiming under such document, may, within thirty days affect making of the order of refusal, apply to the registrar to whom such SRO is sub-ordinate in order to establish his right to have the document registered. 2) Such applications hall be in writing and shall be accompanied.  S.74: When denial is made in respect of a document, registrar shall inquire:-Whether the document has been executed b) whether the requirements of the law for the time being in force have been complied. Order of refusal must be placed in BooK no.2.

Whether SRO has power to summon the persons?

A: As per S.36 If any person presenting any document for registration desires the appearance of any person, the registering officer in his discretion, call upon such officer by issuing summons to appear before him.  S.37 on receipt of process, summons will be issued. S.39 says CPC would apply so far as law as to summons, commissions and witness.

STAMP ACT, 1899:

 Q: What is Stamp duty?

Ans: Stamp duty is collected with a view to recognize the transaction by the state and protect the right under it. It’s a device to collect money. They are divided into impressed and adhesive. They are already explained in the introduction part. Originally, only stamps are affixed, now in case of value more than Rs.100/- money is paid. Thus stamp act lost its nominal significance. Section which creates liability to pay duty.

S.3 is the charging section. It says every instrument mentioned in the schedule of the Act shall be chargeable with the duty of the amount indicated therein.

S.4: If several instruments are employed to complete one transaction, only one of them is chargeable with duty and for remaining Rs.1/- only the fee.

Cancellation: Every stamp must be cancelled by writing over it. Cancel is by writing or across the stamp his name or initials. The object is to prevent further use. Authorities under the Act.

 As per of S.33 of Stamp Act every person having by law or consent of parties authority to receive evidence or in charge of a public office except police officer, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall if it appears that such instruments is not duly stamped, impound the same.

Impounding: It is used in the sense of ‘seziure’ of the document. A document is said to be impounded when it is ordered by a court or public officer to keep in the custody of office.

 Any person can seek the opinion of the collector(District Registrar) as to the quantum of duty be paid in respect of any instrument even on the basis of a mere draft and even before its execution. Then collector shall determine the duty. He shall certify it and endorse over the documents. Certificate is issued by collector that an instrument is duly stamped is conclusive (S.40(2))and civil court cannot go behind the certificate and decide its validity. There is no time limit to seek opinion. The time limit one month prescribed under the proviso to S.32 is only for the purpose of endorsement there under and for the purpose of adjudication under this section.

Chief Controlling revenue authority is the superior authority over Collector.

Consequences and Remedies for NON-STAMPING

Consequences are two-fold:

I) As per S.35 such instrument shall not be: a) Received in evidence       b) Acted upon           c) Registered        d) Authenticated   hall not be used for any purpose.

However, if it is an unstamped receipt, which is required to be stamped, is produced, the same cannot be received in evidence unless the penalty of three rupees is paid by the person tendering it. But the same principle is not applicable to any instrument tendered to receive in evidence in any criminal Court other than the proceedings under Chapter IX or X(D) of the Code of Criminal Procedure

II) Penal consequences: Taking proceeding or payment of penalty shall not bar to prosecute for offence under this law. However, sanction of collector is necessary and collector should opine it was done with an intention to evade payment.

NEGOTIABLE INSTRUMENT, 1881:

CROSSING OF CHEQUES:

Status of Lost or unlawfully obtained Negotiable Instrument:

Persons competent to make, draw, accept, delivery and negotiable Instrument:

Every person who is competent to contract may become a party to a NI and bind himself by making, drawing, acceptance, delivery and negotiation of a NI.  If a party is incompetent to contract, he doesn’t incur any liability as a party to NI, doesn’t in any way diminish the liability of the other competent parties.

Minor: A minor may draw, indorse, deliver, and negotiate a NI so as to bind all parties except himself. Thus, an instrument doesn’t become void merely by reason that a minor is a party to it; it remains binding upon all other parties. But a minor’s rights under an instrument are not affected. If a minor is a payee or indorsee or holder, the payment can be enforced by him or on his behalf.The same is the case with persons of unsound mind. However, such a person may bind himself to NI executed by him during a lucid interval.

Corporations – A corporation being an artificial creation of law, it possesses only those rights which are conferred upon it by the charter of incorporation or the Memorandum of Association. If it exceeds its owners and executes a bill or note, the instrument being ultravires, is void and incapable of ratification even by the unanimous consent of all its members. Such an instrument cannot be enforced even by a bona fide holder in due course.

Agents: An agent can bind his principal by acting on his behalf only in manner in which he is duly authorised to become a party to a NI. A general authority to transact business and to receive and discharge debts doesn’t confer upon an agent the power if accepting or indorsing bills of exchange so as to bind his principal. The agent has to make it clear that he is acting in representative capacity. The form of signature must show that he intends to act as agent or that he does not incur personal liability otherwise he is personally liable.

Legal Representative:  A legal representative of a deceased person is entitled to all the instruments. He can sue on them for the recovery of the amount. If the LR signs his name to an instrument, he is personally liable thereon unless he expressly limits his liability to the extent of the assets of the deceased received by him as such.

Different Kinds of Parties to a Negotiable Instrument:

Drawer: The maker of a note, bill or cheque is called the drawer.

Drawee: The person on whom a bill or cheque is drawn and who is thereby directed to pay is called the drawee. In case of a cheque, the drawee is always a banker.

Acceptor: In case of a BOE, the drawee becomes the acceptor when he signs his assent upon the bill and delivers the same or gives notice of such acceptance to the holder or to some person on his behalf. A cheque is not required to be accepted by the drawee.

Payee: The person named in the note, BOE or cheque to whom or to whose order the money is by the instrument is directed to be paid is called the payee. In a BOE or a cheque, the drawer himself may be the payee.

Indorser: The person who indorses the NI in facour of another is called the indorser.

Indorsee: the person to whom a NI is indorsed iscalled the Indorsee.

Holder: The holder of  a NI is a person, entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the NI is lost or destroyed, its holder is the person who person so entitled at the time of loss or destruction. Therefore, a person who has obtained possession of an instrument by theft, or under a forged indorsemnt, is not a holder, as he is not entitled to recover the amount of the instrument. However, the LR or the person entitled by operation of law, who can give a valid discharge to the maker or acceptor of the instrument, becomes a holder and can sue on the instrument.

Holder in due course: A holder in due course is a person who for consideration became the possessor of a Pron note, BOE or Cheque if payable to bearer or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whim he derived the title.

Thus holder of a NI becomes a holder in due course if – i) he receives the instrument for consideration ii) he receives it before its date of maturity; and iii) he takes the instrument in good faith and without notice of any defect either in the instrument or in the title of the endorser.

    NEGOTIATION  :

INDORSEMENT:

Steps to Constitute offence under Section 138 Negotiable Instrument Act, 1881:

1.  The cheque is drawn on a bank for the discharge of any legally enforceable debt or other liability.
2. The cheque should have been presented within the period of six months or within the period of its validity whichever is earlier.
3. The cheque is returned by the bank unpaid due to insufficient funds
4. The payee has given a notice to the drawer claiming the amount within 30 days of the receipt of the information by the bank.
5. The drawer has failed to pay within 15 days from the date of the receipt of notice.

The complaint should have been failed within one month from the date of expiry for the payment of amount before a Metropolitan Magistrate or a Judicial Magistrate not below the rank of a 1^st class Judicial Magistrate.

Miscellaneous:

MATERIAL ALTERNATIONS:   According to S.87:  It is not any unsubstantial alteration that becomes material alteration but only such alterations as would adversely affect the interests of the other side can be called material alterations. Filling up the interest column initially left blank in the printed promissory note form was held to be material alteration rendering it void.

ORIGIN OF STATE AND LAW:

Men desire absolute and unlimited freedom. In fact it is one of the basic instincts of human being to acquire control over men and material. However, the similar and equally powerful instinct on part of his fellow human beings is a great hindrance to enjoy freedom absolutely and without any limitations.  Furthermore, the dangers that nature offer coupled with compelling necessity of organized life by man to have minimum secured life made it imperative for him to live with his fellow human beings and establish society.

Men in order to ensure social cohesion amongst members of society on proper lines after due consideration of human instincts like sex, love, possession tied up people with certain bonds and links in the name of tribe, family, lineage, kinship etc.,. Further to ensure perfect and effective operation of these links and bonds, he attached certain values ideas and beliefs either in the name of religion or customs. In ancient times when contact with members outside the community is minimum these values and community customs used to work out well and ensured peaceful co-existence. However, the rapid advancement made in the field of science and technology greatly weakened social solidarity of societies as such custom and community values role in safeguarding rights of weak became out-dated. However, it doesn’t weakened interdependence of one person over other and rather it enhanced in geometric proportion, though in a different form and scale. The net result is organization of people under a roof called nation states from the primitive tribe. The modern states tied up relationship between state and people and inter-se in the name of law replacing values and custom. Therefore, there necessitated an organized legal system to protect the rights of man for due discharge of state’s duties. Perhaps, for this reason only Sir John Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice”.

The above referred idea about origin of society or state is called as theory of Social contract. The Prominent political thinkers who advanced this theory are: Thomas Hobbes, Rousseau, John Locke, and John Rawls. The theme of their opinion is that individuals are self-interested. However, to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony they created society. Thus, by sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. It is also widely accepted by many Nations.  The Magna Carta of British which guarantees certain rights to citizens and American Declaration of rights of man, 1789 stand as true testimonies for acceptante of this theory about origin of society and state.  In foregoing chapters we study certain core general principles of law on which legal system is constructed so as to translate the promise made by state to its citizens and persons.

OPERATIVE TOOLS OF LAW:

Rights and Duties:    Bentham who is the forerunner of Analytical School of thought states that the relationship between State and its subjects and inter-se is governed by rules of rights and duties. Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them.

The synonyms of right are: Liberty, Power, Privilege, and Immunity.

The synonyms of duty are: Liability, Disability, no right.

Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right without there being corresponding obligation one another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another.   Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa. To put straight, law is either rights or obligation or both. Infact all modern legal systems are constructed on the edifice of this principle only.

Now the question is what is the meaning of term right?  It means something that is due to a person or governmental body by law, tradition, or nature.

According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”

According to Holland: “A right means a capacity residing in one man of controlling with the assent and assistance of the state the acts of the other”

According to Ihering such of those interests that have gained legal protection can be regarded as legal rights.

In strict sense – legal rights are correlatives of legal duties – interests which law protects by imposing duties on others.

In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law.  It can also be said that to call something as right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.

In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This concept is explained through two following legal maxims:  Injuria Sine Damno and Damnum sine Injuria.

Injuria Sine Damno: Plaintiff can sustain a legal action for the infringement of his legal right even though he didn’t suffer any loss or damage. Ashby v. White (1702) 2LD Raym 938. Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intended to vote, was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.

Damnum sine Injuria: Mere sustenance of loss or damage by plaintiff doesn’t give rise to cause of action if there is no infringement of legal right. The important case law in this context is:

Gloucestor Grammar School Case: In this case, the defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant.  Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.

It is evident from above discussion one can seek the aid of court only if there is an invasion or threat to invasion of right guaranteed by law.  Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In fact under law we basically study about legal rights under substantive law.  These rights can also be classified into following heads:-

1) Fundamental rights       2) Public rights

3) Personal rights          4) Customary rights       5) Contractual rights

Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation.  The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to action of hurt, victim can’t demand removal of eye of the accused unless it is recognized by law.The following are the major remedial measures provided under various laws.

Constitution provides following kinds of remedial measures for protection or enforcement of violated fundamental rights. They are:

a) Habeas Corpus       b) Quo Warranto       c) Mandamus      d) Certiorari       (e) Prohibition.

Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights.:-

(a) Specific performance       (b) Injunction        (c) Declaration      (d) Recovery of possession                                       (e) Cancellation            (f) Recession.

The other reliefs available under Civil law are:

(a) Damages           (b) Maintenance              (c) Mesne profits,

(d) Partition              (e) Grant of succession certificate.

Indian Penal code and other penal laws provide followings kinds of remedial measures for violations duties prescribed under them. It is also known as punishment.

a) Death             b) Imprisonment for life               c) Imprisonment, which is of two descriptions, namely:—

(1) Rigorous, that is, with hard labour.        (2) Simple;

d) Forfeiture of property.                e) Fine. Court can also award compensation.

Redressal of right:

The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed.  As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important.  In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are:

(a) Constitution of India and Writ rules

(b) Civil Procedure Code and Civil rules of Practice,

(c) Criminal Procedure Code and Criminal rules of Practice

(d) Limitation Act

(e) Suit Valuation and Court Fee Law

(f) Stamp and Registration Law

(g) Indian Evidence Act

(h) Legal Services Authority

(i) Arbitration and Conciliation Act 1996

(k) Consumer Protection Act.

In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently including especially in adjudicating a claim which has large scale implications on the lives of citizens.    Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these fundamental principles on which any civilized adjudicatory forum operate. The principles are:

1) Principle of Locus standi,

2) Resjudicata, Admissions,  Estoppel,

3) Jurisdiction,

4) Law of Limitation,

5) Stamp Act and Registration Act,

6) Suit Valuation and Court Fee Law,

7) Principles of Pleadings,

8) Summons,

9) Fixing up disputed question,

10) Recording of evidence,

11) Arguments

12) Adjudicating claim or judgment,

13) Appeal, Enforcement of judgment.

The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:

1. WRIT court   
2.   Civil Court
3. Criminal Court   
4.  Legal Service Authority
5. Mediation and Arbitration forum
6.  Consumer Tribunal
7. Endowments Tribunal                 
8.  Family court
9. Administrative Tribunal 10. Arbitration