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    6Jan, 2024
    Delhi High Court prescribes timelines for completing various steps in organ transplantation process while saying that there is a sense of urgency in organ donation and the absence of fixed timelines is defeating the purpose of statutes.

     HIGH COURT OF DELHI AT NEW DELHI
    Date of decision: 4th January, 2024.
    + W.P.(C) 3590/2020 & CM APPL. 12775/2020
    AMAR SINGH BHATIA & ANR. versus
    SIR GANGA RAM HOSPITAL & ORS. ….. 

    Delhi High Court prescribes timelines for completing various steps in organ transplantation process while saying that there is a sense of urgency in organ donation and the absence of fixed timelines is defeating the purpose of statutes

    The Delhi High Court on 04th January, 2024 gave a landmark judgment concerning human organ transplant benefitting lacs of patients across the country who are awaiting their organ transplant. The judgment authored by Hon’ble Ms. Justice Prathiba M Singh while analyzing the provisions of the Transplantation of Human Organs & Tissues Act, 1994 alongwith its Rules of 2014 takes cognizance of the long delays in the decision for transplantation by the Authorities thus noticing the absence of necessary timelines in this regard in the Act & Rules. The petitioner, an ex-Airforce employee, was represented by Counsel Ms. Charu Aneja Advocate. Unfortunately, the petitioner died during the pendency of the petition while he had applied for a kidney transplant at Sir Ganga Ram Hospital, Delhi. Advocate Ms. Aneja argued that the timelines within which the Authorisation Committee constituted under Section 9(4) of the 1994 Act is to conduct interviews, make decisions therein, and handle the appeal procedure are not prescribed which is the reason for delays in organ transplant.

    The Hon’ble Court emphasized the need to lay down timelines at every step right after any application for organ transplantation is filed till its decision by the Authorisation Committee which will ensure a quick decision thus reinforcing the right to health being fundamental to the right to life under Article 21 of the Constitution of India. The Court thus laid down a 6-8 week timeline within which the entire process has to be completed and directed that the judgment be placed before the Secretary, Ministry of Health & Family Welfare to ensure prescription of the timelines. [W.P. (C ) No. 3590/2020]

     

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    Amar_Singh_Bhatia___Anr_v_Sir_Ganga_Ram_Hospital___Ors The Law Literates

    All rights Reserved (𝔸𝕕𝕧 Nandan Kumar)

    4Jan, 2024
    Mere fact that application for approval of Resolution Plan is pending for consideration by NCLT does not entitle to file an IA for acceptance of claim after more than one and a half year of the approval of Resolution Plan by CoC

    IN THE MATTER OF:
    D S Kulkarni & Associates Vs Manoj Kumar Aggarwal

    NCLAT New Delhi
    Mere fact that application for approval of Resolution Plan is pending for consideration by NCLT does not entitle to file an IA for acceptance of claim after more than one and a half year of the approval of Resolution Plan by CoC

    Coram: Mr. Justice Ashok Bhushan (Chairperson) and Mr. Arun Baroka (Technical Member)

     

    In this case, Resolution Plan was approved by CoC on 13.08.2021 and the Applications were filed by the Appellant(s) in February 2023, i.e., more than one and a half year after approval of the Resolution Plan.

    Hon’ble NCLAT holds that:

    (i) The MoU, which is the basic document submitted by the Appellant to prove financial debt, does not indicate that transactions are covered by Section 5, sub-section (8) of the Code.

    (ii) The mere fact that Application for approval of Resolution Plan is pending for consideration by the Adjudicating Authority does not entitle the Appellant(s) to file an Application for acceptance of their Claim after more than one and a half year of the approval of the Resolution Plan by the CoC.

    Relevant Paras:

    13. The MoU stated that the Appellant approached the Corporate Debtor for purchasing and or jointly developing the properties. Further, Clause 11 indicates that parties may chose to execute the joint venture and the said consideration amount shall be considered as share/ investment brought by the party of the Second Part. The MoU, which is the basic document submitted by the Appellant to prove financial debt, does not indicate that transactions are covered by Section 5, sub-section (8) of the Code. The consideration according to the MoU was paid either for purchasing the property or for entering into joint venture, where the consideration was to be treated as investment. Joint venture profit has also been captured in Clause 11. The Ledger extract, which has been filed also cannot make the transaction as financial debt.
    14. We have looked into the aforesaid MoU and claim of Ledger extract to satisfy ourselves as to whether RP was obliged to admit the claim asfinancial debt on the basis of said documents. We are of the view that RP has rightly communicated to the Appellant that documents submitted are insufficient to accept their claim as financial debt and no error has been committed.

    15. Now, we also look into the MoU dated 13.04.2013, which is relied in Company Appeal (AT) (Ins.) No.924 of 2023 by D.S. Kulkarni & Company. In the aforesaid case, claim was also filed in Form-CA, i.e., Claim by Financial Creditor. The Claim Form refers to MoU and the Ledger extract. MoU has been filed as Annexure-A2. MoU was entered between the Corporate Debtor and D.S. Kulkarni & Company. In Clauses D, E and F, following have been stated:
    “D. The party of the second Part had came to know that the Party of the First Part is developing and constructing large Township at Fursungi Ie. Property described in Schedule – I written hereunder, therefore Party of the Second Part was desirous to purchase various units/ commercial complex in proposed township to be developed by Party of the First Part.
    E. Thus, Party of the Second part approached to party of the First with intention to purchase proposed units in township at Fursungi, to be constructed in DSKDI. i.e. Party of the First Part.
    F. The parties after negotiations agreed that, Party of the First Part will allot various Units to be constructed in the township Adm. About 5,00,000/- Sq. ft. built up rate of Rs.6,000/- per sq. ft. thus, the final consideration will be Rs.300,00,00,000/- (Rupees Three Hundred Crores only).”

    20. Insofar as documents which have been brought on record by the Appellant(s) before the Adjudicating Authority by filing additional affidavit, suffice it to say that the basic documents relied by the Appellant(s) were MoU and Ledger extract. The MoU, which is a basic document evidencing the transaction does not qualify as a financial debt and the RP has rightly taken the view that the documents filed, i.e. MoU and Ledger statement are insufficient to accept the Claim as financial debt.

    21. In view of the foregoing discussions and conclusions, we are of the view that no grounds have been made out to interfere with the order dated 31.03.2023 passed by the Adjudicating Authority, rejecting IA Nos 721 and 722 of 2023. Both the Appeals are dismissed. No order as to costs.


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    S Kulkarni & Associate Vs Manoj Kumar Aggarwal NCLAT The Law Literates Judgment

    All Rights Reserved (𝔸𝕕𝕧 Aashna Suri)

     

    4Jan, 2024
    Hindu Marriage Act Sections 11 and 16(1) Children of void marriage Dismissal of suit seeking partition of the suit schedule properties and for allotment of 1/3rd share in her favour Suit involves ancestral properties Agricultural land and houses Inherited

    AS 3604/04 22/08/23 [THE HON’BLE JUSTICE M.G. PRIYADARSINI
     [ TELANGANA HIGH COURT ]

     

    _*• Hindu Marriage Act Sections 11 and 16(1) Children of void marriage Dismissal of suit seeking partition of the suit schedule properties and for allotment of 1/3rd share in her favour Suit involves ancestral properties Agricultural land and houses Inherited by defendant No. 1. The plaintiff claims a 1/3rd share in these properties as a coparcener of the joint Hindu family Primary contention revolves around the plaintiff’s legitimacy and her entitlement to a share in the ancestral properties Plaintiff’s legitimacy and rights as a coparcener in the joint family properties are the focal points of the legal dispute As rightly observed by the Trial Court, the plaintiff being the daughter of defendant No. 1 through the second wife, P-W.2, whose marriage is null and void, could not claim any inheritance in the joint family property, that too while the father was alive Such illegitimate would only be entitled to a share in the self-acquired property of the parents Trial Court was absolutely right in holding that the plaintiff, who born out of a void marriage between defendant No. 1 and PW.2, cannot claim partition of the joint family properties during the lifetime of defendant No. 1 Appeal dismissed confirming the judgment of the District Judge in dismissing the suit of the appellant-plaintiff. [Paras 17, 18 and 19]*_

    Relevant Paras

    17. A plain reading of Section 16 of the Act would make itabundantly clear that the right conferred upon the illegitimate children is, only as regards the property left by their parents and nothing more. Section 16 of the Act, while engrafting a
    rule of fiction in ordaining the children, through illegitimate, to be treated as legitimate, notwithstanding that the marriage was
    void or voidable, chose also to confine its application, so far as succession or inheritance by such children is concerned, to the properties of the parents only. In this view, as rightly observed by the Trial Court, the plaintiff being the daughter of defendant
    No. 1, through the second wife, P.W.2, whose marriage is null and void, could not claim any inheritance in the joint family property, that too while the father was alive. The Apex Court in the decision rendered in Neelamma and Ors. v. Sarojamma
    and Ors.3 while dealing with the point as to whether an illegitimate child can acquire/claim as of right a share in the joint Hindu family property, referring to its earlier decision rendered in Jinia Keotin v. Kumar Sitaram manjhi4 has categorically
    held that an illegitimate child cannot succeed/claim a share in the joint Hindu Family property. Such illegitimate child would only be entitled to a share in the self-acquired property of the parents. Further, the Apex Court in Bharatha Matha and Anr. V. R. Vijaya Renganathan and Ors.5 referring to its earlier
    decisions in Neelamma (supra) and Jinia Keotin (supra) and analyzing Section 16 of the Act, has held that a child born of void or voidable marriage is not entitled to claim inheritance in ancestral coparcenery property but is entitled only to claim share in self acquired properties, if any.

    18. It must be noted that the Apex Court in the case of
    Revannasiddappa and Another v. Mallikarjun and Others6 had took note of Section 16(3) of the Hindu Marriage Act and has observed at para-45 as follows:-
    “45. In the instant case, Section 16(3) as amended, does not impose any restriction on the property right of such children except limiting it to the property of their parents. Therefore, such children will
    have a right to whatever becomes the property of their parents whether self-acquired or ancestral.”
    Thus, the Two-Judge Bench, opining that such children will have a right to whatever becomes the property of their parents, whether self-acquired or ancestral, differed with the view taken by coordinate Benches in the earlier decisions quoted supra and referred the matter for reconsideration by a
    Larger Bench. Be that as it may, the reference by itself will not tie the hands of the Court in deciding the matters on the basis of the enunciation of law prevailing as on date.
    19. In light of the above, the Trial Court was absolutely right in holding that the plaintiff, who born out of a void marriage between defendant No. 1 and P.W.2, cannot claim partition of the joint family properties during the lifetime of defendant No. 1
    6 (2011) 11 SCC 1 but she may be entitled to share in the self-acquired properties of defendant No. 1 after his death. Therefore, the said findings need no interference by this Court and the appeal is liable to be dismissed.

     

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    Kumari Krishna Veni @ Sadhu Gyni Krishna Veni Vs. Gyni Venkati @ Sadhu Venkati & Ors.

    All rights Reserved (𝔸𝕕𝕧 Vaibhav Tomar )

    28Dec, 2023
    वकालत का लाइसेंस देने से पहले पुलिस रिपोर्ट की जांच की जाए।इलाहाबाद हाईकोर्ट ने बार काउंसिल को निर्देश दिया है!

    वाकई, वकालत के लाइसेंस पहले पुलिस रिपोर्ट की जांच के बिना नहीं देना चाहिए। इससे न्यायिक प्रक्रिया को सुरक्षित बनाए रखने का महत्वपूर्ण साधन है, और इस दिशा में इलाहाबाद हाईकोर्ट ने बार काउंसिल को निर्देशित किया है।

    इलाहाबाद हाईकोर्ट ने वाकीलों के लाइसेंस के लिए पुलिस सत्यापन की प्रक्रिया तय की है। यह वाकई महत्वपूर्ण है!  आपराधिक इतिहास वाले वकीलों को वकालत करने के लिए आसानी से लाइसेंस नहीं मिल पाएगा, क्योंकि इलाहाबाद हाईकोर्ट ने बार काउंसिल को यह सुनिश्चित करने के लिए एक प्रक्रिया विकसित करने का निर्देश दिया है कि लाइसेंस देने के लिए प्राप्त सभी नए आवेदन पुलिस सत्यापन के अधीन हो। यह महत्वपूर्ण निर्देश न्यायमूर्ति सौमित्र दयाल सिंह और न्यायमूर्ति विनोद दिवाकर की खंडपीठ ने पवन कुमार दुबे द्वारा दायर एक याचिका पर सुनवाई करते हुए हुए पारित किया है। इस मामले में याचिकाकर्ता ने चौदह आपराधिक मामलों की लंबितता के संबंध में महत्वपूर्ण जानकारी छिपाने के संबंध में निजी-प्रतिवादी के खिलाफ शिकायत की थी, जिनमें से चार मामलों में उसे दोषी ठहराया गया है। उस जानकारी को छिपाकर, प्रतिवादी ने कानून का अभ्यास करने का का लाइसेंस प्राप्त कर लिया था, हालांकि याचिकाकर्ता के वकील के अनुसार, प्रतिवादी वकालत से काफी दूर है।

    इस निर्देश के अनुसार, आपराधिक इतिहास वाले वकीलों को लाइसेंस प्राप्त करने के लिए पुलिस सत्यापन अब अनिवार्य है, जैसा कि इलाहाबाद हाईकोर्ट ने निर्देशित किया है। यह एक महत्वपूर्ण कदम है जो न्यायिक प्रक्रिया को सुरक्षित और विश्वसनीय बनाए रखने का उदाहरण है।

    न्यायमूर्ति सौमित्र दयाल सिंह और न्यायमूर्ति विनोद दिवाकर की खंडपीठ ने पवन कुमार दुबे की एक याचिका पर सुनवाई करते हुए चौदह आपराधिक मामलों की लंबितता के संबंध में महत्वपूर्ण निर्देश जारी किए हैं। याचिकाकर्ता ने चार मामलों में दोषी ठहराया है, जबकि प्रतिवादी ने कानून का अभ्यास करने का लाइसेंस प्राप्त किया है, लेकिन उसे दूरी से वकालत की बताई जा रही है।

    तदनुसार, तत्काल याचिका का निपटारा प्रतिवादी नंबर 3 को यह निर्देश दिया गया है कि याचिकाकर्ता द्वारा लाई गई अनुशासनात्मक कार्यवाही को कानून के अनुसार यथासंभव शीघ्रता से, अधिमानतः तीन महीने की अवधि के भीतर पूरा करना होगा।

    मामले को ख़त्म करने से पहले न्यायालय ने चिंताजनक स्थिति पर ध्यान देते हुए कहा:

    चौंकाने वाली बात है कि चौदह मामलों का आपराधिक इतिहास रखने वाले व्यक्ति, जिनमें से चार मामलों में उसे पहले ही दोषी ठहराया गया है, ने कानून का अभ्यास करने का लाइसेंस प्राप्त किया है। यदि ऐसे लाइसेंस को उत्पन्न होने और/या जारी रखने की अनुमति दी जाती है, तो इससे सामान्य रूप से समाज और विशेष रूप से कानूनी बिरादरी को नुकसान हो सकता है। अधिवक्ता अधिनियम ऐसे व्यक्ति को प्रैक्टिस के लिए प्रवेश पर रोक लगाता है।

    कोर्ट ने कहा: “प्रतिवादी नंबर 2 को यह सुनिश्चित करने के लिए एक प्रक्रिया विकसित करनी चाहिए थी कि लाइसेंस देने के लिए प्राप्त सभी नए आवेदन समयबद्ध तरीके से पुलिस सत्यापन प्रक्रिया के अधीन हैं। सभी आवेदक, जो आपराधिक आरोपों का सामना कर रहे हैं और/या दोषी ठहराए गए हैं, अपने आवेदन करने के चरण में बार काउंसिल को ऐसे मामलों की लंबितता और/या सजा के किसी भी आदेश के अस्तित्व के बारे में सूचित करने के लिए बाध्य हैं। यदि किसी आवेदक द्वारा ऐसे महत्वपूर्ण विवरणों का खुलासा नहीं किया जाता है, तो उसका आवेदन शुरुआत में ही खारिज कर दिया जा सकता है। इस प्रकार, बार काउंसिल ने अभी तक अपने स्वयं के कानून को लागू करने के लिए कोई प्रक्रिया विकसित नहीं की है, जो आश्चर्यजनक है।”

    आदेश:

    हम प्रतिवादी क्रमांक 1 और 2 को तत्काल आवश्यक दिशा-निर्देश जारी करने और यह सुनिश्चित करने के लिए निर्देशित करते हैं कि लाइसेंस जारी करने के लिए सभी लंबित और नए आवेदनों के संबंध में संबंधित पुलिस स्टेशनों से उचित पुलिस रिपोर्ट मांगी जाए, जैसा कि पासपोर्ट जारी करने के लिए किया जा रहा है। इस तरह की उचित परिश्रम प्रक्रिया यह सुनिश्चित करेगी कि जिस व्यक्ति का आपराधिक इतिहास हो सकता है, उसे लाइसेंस प्राप्त करने में बार काउंसिल को गुमराह करने से रोका जा सकता है। प्रतिकूल पुलिस रिपोर्ट के लंबित रहने तक जारी किया गया अनंतिम लाइसेंस ऐसी रिपोर्ट प्रस्तुत किए जाने पर रद्द किया जा सकता है।

    27Dec, 2023
    Acquittal/Murder By the instant appeal, the appellant assails the judgment passed in SC arising out of FIR, holding the appellant guilty of commission of the offence under Section 302 of the IPC with which he was charged as well as the order awarding sentence of imprisonment for life and a fine of Rs.10,000/queshed


    HIGH COURT OF DELHI  CRL.A. No. 13/2013
    VIKAS GUPTA @ BOBBY  Vs  STATE

    CORAM
    HON’BLE MS. JUSTICE GITA MITTAL HON’BLE MS. JUSTICE ANU MALHOTRA

    • Murder By the instant appeal, the appellant assails the judgment passed in SC arising out of FIR, holding the appellant guilty of commission of the offence under Section 302 of the IPC with which he was charged as well as the order awarding sentence of imprisonment for life and a fine of Rs.10,000/and in default of payment of fine, ordering simple imprisonment for six months Even the investigating officer had informed the doctor that the “deceased had consumed an unknown substance after a quarrel with her husband at home” On a conjoint readings of the DD No.39B; the MLC; the marginal note on the post mortem report, which is corroborated by the first statement of Master ‘M’, and statement of the daughter of the deceased it has to be held that the prosecution has failed to establish beyond reasonable doubt that the appellant had duped the deceased into consuming a poisonous substance more specifically Organo – phosphorous pesticide (Dichlor VOS) leading to her death — The judgment as well as the order of sentence awarding sentence of imprisonment for life and a fine of Rs.10,000/and in default of payment of fine, ordering simple imprisonment for six months are not sustainable and are hereby set aside and quashed.

    Relevant Paras :

    39. The MLC records this very disclosure by Himanshu, son of the deceased to the doctor. The marginal note on the post mortem report Ex.PW-15/A also states that the history disclosed by the investigating officer was that the deceased had consumed some unknown substance after quarrel with her husband at home. No allegation was made that the same had been offered to her by the husband.
    40. The marginal note on the post mortem report and the MLC shows that the deceased had been rushed to hospital by her husband, the present appellant with the alleged history of ingestion of some unknown substance. The appellant alleges that all these circumstances proved on the record establish that the appellant could not have been held guilty for commission of the offence with which he was charged. We find substance in these submissions.
    41. We extract hereunder the material explanation given by the appellant when the evidence regarding the commission of the offence was put to him under Section 313 of the CrPC:


    “Q.17 It is further in evidence against you that PW-2 Himanshu Gupta, your son and PW-3 Baby Samishtha, your daughter, both have deposed that you used to drink daily and pick up quarrel with deceased Bharti Gupta. They have also stated that on 20.09.2009, their mother had gone to market to purchase vegetables and she became late and when she returned, you were under influence of liquor and started abusing her and beating her. What you have to say?
    Ans. It is incorrect.
    Q.18 ItisfurtherinevidenceagainstyouthatPW2& 3 have also stated that you continued beating Bharti till next day i.e. 21.09.09. you again started quarrel with Bharti and at around 2:15 p.m. Their mother being fed up with you uttered words that “isse acha hai ki main mar jaon” on which you gave insecticide (used for killing cockroaches) mixed in water to their mother and since said insecticide (used for killing cockroaches) mixed in water to their mother and since said insecticide after mixing with water was still transparent like water, she consumed the same as a result of which jhag started coming out of her moth and she started vomiting. What you have to say?
    Ans. It is incorrect. I never gave any insecticide to Bharti at any point of time. Rather at the time when she consumed insecticide, I was not present at home.
    I came at the spot later on and on finding Bharti in the intoxicated condition, I rushed her to hospital for her treatment. The allegations levelled against me is false and totally baseless. Deceased Bharti was fed up and used to remain tense as my daughter Kajal was not being given by my father-in-law and mother-in- law as she was very lucky to them. My wife used to make various request to them to return her to us as she might be very lucky for us but they were adamant not to return her. On 20.09.09, my wife went to her parental home to take our daughter kajal being very lucky but they flatly refused and they scolded her not to come again for this purpose. I used to work with my inlaws at their kite shop for the period from January, 2009 upto 20.09.2009 and I have also been given a sum of Rs.20,000/- by my father in law. I also used to take the payment during this period from time to time. My relation with my wife were very cordial. The demonstration with dead body was also held on 22.09.09 by my inlaws, other people including the Leaders of Political parties in the mohalla and also at the Police Station after that police came in action and a DD no. 18A was made and after that the statements were recorded and the false FIR was registered in which I have been falsely implicated by the police.
    xxx xxx xxx
    Q. 24 Do you want to say anything else?
    Ans. I am innocent and have been falsely implicated in this case. I never gave any insecticide to Bharti at any point of time. Rather at the time when she consumed insecticide, I was not present at home. I came at the spot later on and on finding Bharti in the intoxicated condition, I rushed her to hospital for her treatment. The allegations levelled against me is false and totally baseless. Deceased Bharti was fed up and
    used to remain tense as my daughter Kajal was not being given by my father-in-law and mother-in-law as she was very lucky to them. My wife used to make various request to them to return her to us as she might be very lucky for us but they were adamant not to return her. On 20.09.09, my wife went to her parental home to take our daughter kajal being very lucky but they flatly refused and they scolded her not to come again for this purpose. I used to work with my inlaws at their kite shop for the period from January, 2009 upto 20.09.2009 and I have also been given a sum of Rs.20,000/- by my father in law. I also used to take the payment during this period from time to time. My relation with my wife were very cordial. The demonstration with dead body was also held on 22.09.09 by my inlaws, other people including the Leaders of Political parties in the mohalla and also at the Police Station after that police came in action and a DD no. 18A was made and after that the statements were recorded and the false FIR was registered in which I have been falsely implicated by the police.”
    42. On a conjoint readings of the DD No.39B; the MLC No.7539/09 EX.PW-13/A; the marginal note on the post mortem report dated 22nd September, 2009, which is corroborated by the first statement dated 21st September, 2009 (Ex.PW-2/B) of Master Himanshu @ Honey, and statement dated 21st September, 2009 (EX.PW-18/C) of the daughter of the deceased, namely, Samishtha, it has to be held that the prosecution has failed to establish beyond reasonable doubt that the appellant had duped the deceased Bharti Gupta into consuming a poisonous substance more specifically
    Organo – phosphorous pesticide (Dichlor VOS) leading to her death.
    43. In view thereof, the judgment dated 17th July, 2012 as well as the order of sentence dated 20th July, 2012 awarding sentence of imprisonment for life and a fine of Rs.10,000/- and in default of payment of fine, ordering simple imprisonment for six months are not sustainable and are hereby set aside and quashed.

     

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    25Dec, 2023
    Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition


    (REPORTABLE )SUPREME COURT OF INDIA
    CIVIL APPEAL NOS. OF 2023 (ARISING OUT OF SLP (C) NOS.2373-2377 OF 2020)

    M/S TRINITY INFRAVENTURES LTD. & ORS. ETC. VERSUS M.S. MURTHY & ORS. ETC. …

    Order 20, Rule 18 , Section 54 CPC Appeals by non-parties to judgment, challenging only one portion of impugned judgment Preliminary decree in suit for partition merely declares shares that parties are entitled to in any of the properties included in plaint schedule and liable to partition – On basis of mere declaration of rights that take place under preliminary decree, parties cannot trade in, on specific items of properties or specific portions of suit schedule properties.

    194. Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is
    appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if
    it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.
    195. Therefore, the question of specific immovable properties or specifically identified portions of immovable properties getting allotted
    to any person merely holding a preliminary decree with respect to an undivided share does not arise. A preliminary decree in a suit for partition merely declares the shares that the parties are entitled
    to in any of the properties included in the plaint schedule and liable to partition. On the basis of a mere declaration of the rights that take place under the preliminary decree, the parties cannot trade in, on specific items of properties or specific portions of suit schedule properties. Since there are three stages in
    a partition suit, namely (i) passing of a preliminary decree in terms of Order XX Rule 18(2); (ii) appointment of a Commissioner and passing
    of a final decree in terms of Order XXVI Rule 14 (3); and (iii) taking possession in execution of such decree under Order XXI Rule 35, no party to a suit for partition, even by way of compromise, can acquire
    any title to any specific item of property or any particular portion of a specific property, if such a compromise is struck only with a few parties to the suit.
    196. In fact, Sameena Kausar and others stake claim to the land of the extent of acres 60.00 in Survey No.172 of Hydernagar, on the basis of a gift made by defendant No.52. Even admittedly, Sameena Kausar
    and others have sold half of that land way back in 1997 to M/s Jayaho Estates. Yet Sameena Kausar and others have come up with appeals.
    197. Be that as it may, a look at the Memorandum of Oral Gift dated 19.12.1978 executed by Ghousuddin Khan (defendant No.52) shows that the said document purports to be a record of the oral gift (hiba)already made on 10.10.1978. This Memorandum of Oral Gift declares that the donor have also delivered possession of the gifted property to the donee. Interestingly, this Memorandum of Oral Gift does not contain a Schedule of property, but contains very strangely, the boundaries alone. It will be useful to extract the last part of this
    Memorandum of Oral Gift dated 19.12.1978. It reads as follows:-
    “Today on 19th December 1978 I have confirmed the oral gift made on 10th October 1978 in favor of the Donee and executed this Memorandum of gift in presence of the following witnesses.
    Hence these few words are written by me as a
    MEMORANDUM OF GIFT so that it may remain as an authority and used at time of need.
    Dated : 19th December 1978.
    Boundaries:
    North: Nizampet village
    South: Bombay High way
    East: Hydernagar village,
    West: Survey No. 28 land of Jeelani Begum.
    Sd/-Donor Ghouse Mohiuddin Khan.
    Sd/- witness Sd/- witness”


    198. It is true that in the body of the Memorandum, the donor claims to be the owner in possession of the land measuring acres 60 in Survey No.172 of Hydernagar. But Survey No.172 of Hydernagar has
    land of a total extent of acres 196.20. The claim of defendant No.52 to acres 60 out of the total extent, is on the basis of an order purportedly passed first on 31.01.1976, in Application No.139 of 1971. But the
    only order passed in this application is to the effect that the parties have not been able to agree upon the allotment of shares and that therefore, the matter had to be forwarded to the Collector under Section 54 CPC. But all of a sudden, a final report filed by one P.
    Narasimha Rao Receiver/Commissioner, surfaces, allegedly on the basis of a compromise decree in Application No.185 of 1973. In the table contained in the said final report, Survey No.172 is shown to
    have been sub-divided into 25 different parts bearing Survey Nos.172/1 to 172/25. What is shown therein to have been allotted to defendant No.52 were the following:
    Survey No. Allotted to D-52 Out of
    172/8 0.2 G 9 Acres 39 Guntas
    172/9 10.02 G 10 Acres 02 Guntas
    172/17 7.08 G 7 Acres 08 Guntas
    172/18 10.00 G 10 Acres 00 Guntas
    172/19 10.07 G 10 Acres 07 Guntas
    172/20 9.34 G 9 Acres 34 Guntas
    172/21 5.04 G 5 Acres 04 Guntas
    172/22 5.38 G 5 Acres 38 Guntas
    172/23 5.00 G 5 Acres 25 Guntas
    62.13 G


    199. Interestingly, the order passed in Application No.139 of 1971 is dated 21.01.1976. If pursuant to the said order, Survey No.172 had been sub-divided and different parcels of land in various sub-divisions
    of Survey No.172 stood allotted to defendant No.52, the Memorandum of Gift dated 19.12.1978 should have contained all these sub-divisions of survey numbers and a proper description. Without giving the sub- division numbers of Survey No.172 and without describing different parcels of land as per the allotment allegedly made by the Advocate
    Commissioner, the Memorandum of gift proceeds to mention mere boundaries. Interestingly, Northern boundary is stated to be Nizampet village, Southern boundary is stated to be Bombay Highway and Western boundary is stated to be Survey No.28 belonging to Jeelani Begum. Therefore, the entire claim made by persons claiming under defendant No.52, appears to be a hoax.

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    M:S TRINITY INFRAVENTURES LTD. & ORS. ETC. …APPELLANT(S) VERSUS M.S. MURTHY & ORS. ETC. …RESPONDENT(S)_Judgement_15-Jun-2023 (1) The Law Literates

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    21Dec, 2023
    Section 439 CRPC Sections 354C, 354D, 376, 506 and 34 IPC Bail Sexual intercourse without consent Accused also uploaded indecent pictures of the complainant/prosecutrix on social media/Bail Granted


    HIGH COURT OF DELHI 
    % Reserved on: 28th November, 2023
    Date of Decision:07thDecember, 2023
    + BAILAPPLN. 958/2023
    ADITYA RAJ VERSUS STATE & ANOTHER 

    CORAM
    HON’BLE DR. JUSTICE SUDHIR KUMAR JAIN
    JUDGMENT

    • Section 439 CRPC Sections 354C, 354D, 376, 506 and 34 IPC Bail Sexual intercourse without consent Accused also uploaded indecent pictures of the complainant/prosecutrix on social media Counsel for the petitioner argued that the complainant /prosecutrix has taken different stands on 03 occasions within 24 hours as such the entire complaint of the complainant/prosecutrix is raising serious doubt to her version of committed of rape/sexual assault by the petitioner Complainant/prosecutrix was aged about 16 years and as per the Status Report, her date of birth was 30.06.2001. The petitioner is aged about 24 years. It is also pertaining to mention that the present FIR was also got registered in the year 2020 and as per the allegations made by the complainant/prosecutrix, the petitioner for the first time has committed the act of rape/sexual assault in the year 2017 as such there is a delay of 05 years in the registration of FIR which the prosecution required to explain during the trial – Arguments advanced by the Additional Public Prosecutor as referred hereinabove can be considered during the trial of the case particularly

     

    Relevant Paras :

    8. A coordinate bench of this court in Dharmander Singh @
    Saheb V. The State (Govt. of NCT, Delhi) Bail Appl. 1559/2020
    decided on 22.09.2022 has laid down the parameters that are to be
    followed when considering bail of an accused person under the
    POCSO Act. The relevant portion of the judgment reads as:
    77. Though the heinousness of the offence alleged will beget the length ofsentence after trial, in order to give due weightage to the intent andpurpose of the Legislature in engrafting section 29 in this special statute to protect children from sexual offences, while deciding a bail plea at the post-charge stage, in addition to the nature and quality ofthe evidence before it, the court would also factor in certain real life considerations, illustrated below, which would tilt the balance against or in favour of the accused:
    a. the age of the minor victim : the younger the victim, the more heinous the offence alleged;
    b. the age of the accused : the older the accused, the more heinous the offence alleged;
    c. the comparative age of the victim and the accused : the more their age difference, the more the element of
    perversion in the offence alleged;
    d. the familial relationship, if any, between the victim and theaccused : the closer such relationship, the more odious the offence alleged;
    e. whether the offence alleged involved threat,
    intimidation,violence and/or brutality;
    f. the conduct of the accused after the offence, as alleged;

    g. whether the offence was repeated against the victim; or
    whetherthe accused is a repeat offender under the POCSO
    Act orotherwise;
    h. whether the victim and the accused are so placed that the
    accused would have easy access to the victim, if enlarged on
    bail: the more the access, greater the reservation in granting
    bail;
    i. the comparative social standing of the victim and the
    accused:this would give insight into whether the accused is
    in adominating position to subvert the trial;
    j. whether the offence alleged was perpetrated when the
    victim and the accused were at an age of innocence: an
    innocent,though unholy, physical alliance may be looked at
    with less severity;
    k. whether it appears there was tacit approval-in-fact,
    though not consent-in-law, for the offence alleged;
    l. whether the offence alleged was committed alone or along
    with other persons, acting in a group or otherwise;
    m. other similar real-life considerations.
    The above factors are some cardinal considerations, though
    farfrom exhaustive, that would guide the court in assessing
    the egregiousness of the offence alleged ; and in deciding
    which way the balance would tilt. At the end of the day
    however, considering the myriad facets and nuances of real-
    life situations, it is impossible to cast in stone all
    considerations for grant or refusal of bail in light ofsection
    29. The grant or denial of bail will remain, as always, in the
    subjective satisfaction of a court; except that in view of
    section 29,when a bail plea is being considered after charges
    have been framed,the above additional factors should be
    considered.
    9. A coordinate bench of this court in Praduman V. The State
    (Govt. of NCT, Delhi) &Anr., Bail Appl. no. 2380/2021 decided on
    05.10.2021 granted bail to the accused person on the ground that thestatements of the prosecutrix has contradictions. The relevant portion
    of the judgment reads as:
    20. A perusal of the above mentioned facts show that the
    prosecutrix has given three different statements. In the
    MLC which was conducted prior tothe FIR she does not
    name the petitioner. The MLC was conducted because
    prosecutrix who was below the age of 18 years was found to
    be pregnant. The FIR was registered on the next day when
    she named the petitioner. The statement of the prosecutrix
    under Section 164 CrPC was recorded wherein she does not
    name the petitioner.
    X
    X
    22. Consensual sex has been in legal grey area because the
    consent given by minor cannot be said to be a valid consent
    in the eyes of law. The short question which arises is as to
    whether the petitioner should be granted bail or not.
    Whereas, what has become a trite and unfortunate practice
    is that the Police are filing POCSO cases at the behest of the
    family of a girl who object to her friendship and romantic
    involvement with a young boy. The rigor of the law is
    therefore being misapplied and subsequently misused. The
    age of the petitioner and the prosecutrix, the photograph
    which categorically pointed towards a relationship between
    the two and the discrepancies in the statements given at the
    time of the recordings of the MLC, the FIR and the
    statement under Section 164 CrPCare all mitigating factors
    which tilt the balance towards the grant of bail tothe
    accused.
    10. It is reflecting that the complainant/prosecutrix has taken 03
    different stands in the complaint dated 18.10.2022 and the statement
    under section 164 Cr.P.C. recorded on 19.10.2022 and at the time ofcomplainant/prosecutrix has also refused for internal medical
    examination.
    11. As stated hereinabove, the counsel for the petitioner argued that
    the complainant/prosecutrix has taken different stands on 03 occasions
    within 24 hours as such the entire complaint of the
    complainant/prosecutrix is raising serious doubt to her version of
    committed of rape/sexual assault by the petitioner. The
    complainant/prosecutrix was aged about 16 years and as per the Status
    Report, her date of birth was 30.06.2001. The petitioner is aged about
    24 years. It is also pertaining to mention that the present FIR was also
    got registered in the year 2020 and as per the allegations made by the
    complainant/prosecutrix, the petitioner for the first time has
    committed the act of rape/sexual assault in the year 2017 as such there
    is a delay of 05 years in the registration of FIR which the prosecution
    required to explain during the trial. The arguments advanced by the
    Additional Public Prosecutor as referred hereinabove can be
    considered during the trial of the case particularly, in light of thedifferent stands taken by the complainant/prosecutrix as mentioned
    hereinabove.
    12. The petitioner is stated to have deep roots in the society and is
    not a flight risk. The investigation has already been completed and the
    petitioner is in judicial custody since 13.11.2022. After considering all
    facts, the petitioner is admitted to bail on furnishing personal bond in
    the sum of Rs.25,000/- (Rupees Twenty Five Thousand only) with 02
    sureties of the like amount to the satisfaction of the concerned trial
    court.

     

     

     

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    18Dec, 2023
    Specific Relief Act Section 6 Delhi Rent Control Act, Section 25B Dispossession Dismissal of suit for possession and permanent injunction of filed by tenant Cause of action to file suit i.e. date of ‘dispossession’ No Relief Sought

    HIGH COURT OF DELHI
    % Date of Decision: 13th February, 2023 + C.R.P. 38/2023
    MOINUDDIN …..versus MR. WASEEM AHMED AND ORS.

    CORAM:
    HON’BLE MS. JUSTICE JYOTI SINGH

    • Specific Relief Act Section 6 Delhi Rent Control Act, Section 25B Dispossession Dismissal of suit for possession and permanent injunction of filed by tenant Cause of action to file suit i.e. date of ‘dispossession’ – Held, tenant unable to place any material on record to show that he was in settled possession of suit property upto date which fell within last six months of institution of suit – In fact, in plaint, it is not even spelt out as to on what exact date, tenant was dispossessed from suit property – Therefore, going by electricity bills which were only piece of evidence on record to show possession of suit property, at the highest, tenant was in possession upto 30.04.2014 – Thus, cause of action, if any, arose on 01.05.2014 and suit was filed on 22.08.2015 and was thus beyond period of limitation of six months prescribed under Section 6(2)(a) of the Act – Hence, dismissal of suit upheld. No relief sought

    Relevant

    11. Despite several opportunities, Defendants No. 1, 3 and 4 did not cross-examine the Plaintiff’s witnesses and their right to cross- examine was closed vide order dated 23.11.2019.
    12. On the basis of the evidence led by the parties, the Trial Court dismissed the suit for possession filed by the Plaintiff and having perused the impugned judgment, this Court finds no infirmity, for the
    reasons that follow. Section 6 of the Act, reads as under:-
    “6. Suit by person dispossessed of immovable property.– (1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person through whom
    he has been in possession or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.
    (2) No suit under this section shall be brought –
    (a) after the expiry of six months from the date of dispossession; or
    (b) against the Government.
    (3) No appeal shall lie 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.
    (4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.”
    13. A reading of the provision shows that a person, who is dispossessed from an immovable property without his consent, may file a suit for recovering the possession within six months from dispossession. The intent behind the legislation is to ensure that a
    person, who is illegally dispossessed, can seek redressal and his possession can be restored by a proceeding which is summary in nature. The keyword in the provision is, therefore, dispossessed’ and it is from this point that the six months period commences. The question that therefore emanates in the present petition is the triggering point of the cause of action to file the suit i.e. the date of dispossession’
    . In this context, I may refer to a judgment of the

    Supreme Court in Sudhir Jaggi and Another v. Sunil Akash Sinha Choudhary and Others, (2004) 7 SCC 515, wherein it was held that dispossession would mean not only actual physical dispossession but
    also violation of symbolic possession. Black’s Law Dictionary, 8th Edition, defines the word ‘dispossess’ to mean ‘oust or evict someone from property’
    .
    14. In the light of Section 6 of the Act, as extracted above, the Trial Court correctly posed the question to itself as to when was the Plaintiff dispossessed, entitling him to relief under Section 6 of the
    Act. As noted by the Trial Court, the Plaintiff has set out in the plaint that he was in possession of the first floor of the suit property where he was inducted as a tenant by Defendant No. 2 and a Rent Agreement was executed. Plaintiff placed on record electricity
    bills dated 05.06.2013, 29.06.2013 and 30.04.2014, which are Ex.PW-1/1 (colly.). Plaintiff also placed on record certified copies of the petition and order-sheets before the ARC, where an eviction petition was filed against him by Ms. Khatoon on 17.07.2013. The last
    electricity bill is dated 30.04.2014, which is two months prior to the institution of the eviction proceedings. Besides the said document, as
    rightly noted by the Trial Court, nothing has been placed on record by the Plaintiff to establish either his settled possession prior to the institution of the suit or forced dispossession within six months prior
    to the suit and was, therefore, unable to discharge the initial burden under Section 101 of the Indian Evidence Act, 1872. According to Section 101, whoever desires any Court to give judgment as to any legal right or liability dependent on existence of facts which he asserts, must prove that those facts exist.

    Plaintiff examined PW-2, who was summoned from the Election Office, to prove the Voter ID Card of the Plaintiff, however, the summoned witness deposed that the record being old could not be traced. Therefore, the Plaintiff was unable to place any material on record to show that he was in settled possession of the suit property upto a date which fell within the last six months of the institution of the suit. In fact, in the plaint, it is not even spelt out as to on what exact date, Plaintiff was dispossessed from the suit property. Therefore, going bythe electricity bills which were the only piece of evidence on record toshow possession of the suit property, at the highest, Plaintiff was in possession upto 30.04.2014. The cause of action, if any, arose on 01.05.2014 and the suit was filed on 22.08.2015 and was thus beyond
    the period of limitation of six months prescribed under Section 6(2)(a) of the Act. No infirmity can therefore be found with the impugned judgment on this score.

     

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    16Dec, 2023
    Mediclaim n life insurance) for all the practising advocate enrolled with Bar council of Delhi and who are the voter of Delhi under the chief minister advocate welfare scheme

    IMP. INFORMATION
    Dear Members,
    This is to inform you that the process of fresh registration (Mediclaim n life insurance) for all the practising advocate enrolled with Bar council of Delhi and who are the voter of Delhi under the chief minister advocate welfare scheme will commence from 01.01.24 at 12 AM can register themselves . The registration may be made through the website
    www.cmaws.delhi.gov.in w.e.f. 12.00 A.M. On 01.01.2024 till 11:59:59 P.M. of 15.01.2024.

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    15Dec, 2023
    Section 376(2) (g), 342 read with Section 34 IPC Rape Acquittal Conviction on based on sole testimony of the prosecutrix In the evidence of prosecutrix as well as in the evidence of PW2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused

    CRIMINAL APPEAL NO. 1205 OF 2021
    IN THE SUPREME COURT OF INDIA
    VED PAL & ANR. VS STATE OF HARYANA
    JUSTICE B.R. GAVAI 

    • Section 376(2) (g), 342 read with Section 34 IPC Rape Acquittal Conviction on based on sole testimony of the prosecutrix In the evidence of prosecutrix as well as in the evidence of PW2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused, where the incident is alleged to have taken place It is clear that even according to the prosecution, the prosecutrix was dragged from her house to the house of accused It is difficult to believe that, at that time, the prosecutrix did not make any cries/hues It is further to be noted that in the medical evidence, the Doctor has specifically stated that no injuries were found on the person of the prosecutrix Though he has opined that the possibility of the sexual intercourse could not be ruled out, he has also stated that the possibility of intercourse earlier to the MLR cannot be ruled out – It is further to be noted that the FSL report further finds that no semen was found on the clothes of the prosecutrix or on the vaginal swab – Semen was found on the underwear of accused – It is to be noted that the accused have taken a specific defence that there was a civil dispute between grand-father of the appellant(s) and the grand-father of the prosecutrix – No doubt that the said suggestion is once denied by the prosecutrix and on other occasion she has stated that she is not aware about the same – Though the prosecutrix admits the letter addressed by her to accused, in the next blush, she states that she has neither visited the house of the accused nor accused has visited to her house – Taking into consideration the fact that the both the prosecutrix and the appellant(s) reside within the vicinity of three houses, the said version is difficult to believe – Prosecution has failed to prove the case beyond a reasonable doubt, and therefore, the Appellants are entitled to the benefit of the doubt – Appeal allowed.

    Relevant Paras:

    9. However, in the present case, upon the consideration of the entire evidence together, we find that the prosecution has failed to prove the case against the appellants beyond reasonable doubt.
    10. In the evidence of prosecutrix as well as in the evidence of P.W.2, it has come on record that there are three houses in between the house of the prosecutrix and house of the accused Suresh, where the incident is alleged to have taken place.
    11. As such, it is clear that even according to the prosecution, the prosecutrix was dragged from her house to the house of accused Suresh. It is difficult to believe that, at that time, the prosecutrix did not make any cries/hues.
    12. It is further to be noted that in the medical evidence, the Doctor has specifically stated that no injuries were found on the person of the prosecutrix. Though he has opined that the possibility of the sexual intercourse could not be ruled out, he has also stated that the possibility of intercourse earlier to the MLR cannot be ruled out. It is further to be noted that the FSL report further finds that no semen was found on the clothes of the prosecutrix or on the vaginal swab. The semen was found on the underwear of accused Suresh.

    13. It is to be noted that the accused have taken a specific defence that there was a civil dispute between grand-father of the appellant(s) and the grand-father of the prosecutrix. No doubt that the said suggestion is once denied by the prosecutrix and on other occasion she has stated that she is not aware about the same. Though the prosecutrix admits the letter addressed by her to accused Suresh, in the next blush, she states that she has
    neither visited the house of the has visited to her house. consideration the fact that prosecutrix and the appellant(s) vicinity of three houses, the difficult to believe.

    14. In the totality of the circumstances, we find that the prosecution has failed to prove the case beyond reasonable doubt. The accused are entitled to benefit of doubt.
    15. The impugned judgment and order dated 15th July, 2019 passed by the High Court as well as the orders dated 28th January, 2004/29th January, 2004 passed by learned Additional District Judge (Adhoc) are quashed and set aside and the appeal is allowed.

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