Thursday, July 28, 2011
“THE LIMITATION ACT, 1963, VIS-A-VIS SECTION 22 OF THE HINDU SUCCESSION ACT, 1956” by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
In this legal notes, I wish to critically examine the legal provisions of the Limitation Act, 1963 (hereinafter referred to as ‘LT Act’ in this regard) which are applicable in bringing forwards a suit and/or an application by a Class I Legal Hair for claiming the legal right to acquire any interest in immovable property under Pre-Emptive/Preferential Rights given in S. 22 of the Hindu Succession Act, 1956 (hereinafter referring to as ‘The Act’ in this regard) from any other Class 1 legal heirs of the Joint Hindu Family who are intested in transferring their shares in such property not to the claimant but to outside purchasers.
The full text of S.22 is as follows:-
Section 22 Preferential Right to Acquire Property in Certain Cases:
1) Where, after the commencement of the Act, an interest in any immovable property of an intestate, or in any business can on by him or her, whether solely or in a junction with others, devolves upon two more heirs specified in Class I of the Schedule, and any of the such heirs proposed transfer his or her interest in the property or business, the other heirs, shall have preferential right to acquire the interest proposed to be transferred.
2) the consideration for which any interest in the property of the deceased to be transferred under this section shall be absence of any agreement between the parties, be determined by the Court on application being made to it is 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.
Explanation : In this section, ‘Court’ means the Court within the limits of whose jurisdiction the immovable property is situate or the business is carried on and includes any other Court which the State Government may, by Notification in the Official Gazette, specify in this behalf.
I can locate only one ruling of the Calcutta High Court in Tarak Dash Ghosh1 appeal regarding the application of L.T. Act, 1963 to any claim brought under S. 22 of the Act.
The respondent argued that the application under S. 22 (2) of the Act was filed beyond the period of limitation but the appellant argued that it was not so.2
In the lower Court, the Sub-Judge declared that as “the right given in S. 22 was a right of PRE-EMPTION” he was inclined to apply “Article 97 of L.T. Act, 1963” in giving his order that “the application was filed beyond the period of limitation”3 in dismissing the claim.
But in the 1st appeal, the Dist. Judge has declared that “as it was a preferential right to acquire property in certain4 cases” he has applied “Article 137 of L.T. Act, 1963” to declare that “the application was not filed beyond the period of limitation5 in allowing the appeal.
Hon’ble Justice Sri J.D Chakravarti in High Court confirmed the order of Sub-Judge. his Lordship said that “the right in question is a right of pre-emption when one or several persons on whom an interest in any immovable property devolves on teh death of a person dying intestate as heirs specified in class I and when any one of such heirs proposes to transfer his or her interest in the property, the other heirs are given a preferential right to acquire the interest proposed to be transferred. Here the right in question is one enabling a person to purchase the property in preference to others”6.
Therefore the respondent was successful in his argument that Art. 97 of Lim. Act, 1963 has to be applied to the facts of this case.
The Sub-Judge applied Art. 977 as “it applies to enforce a right of pre-emption whether the right is founded in law or general usage or on special contract” in coming to his decision. The High court too came to the same opinion.
Article 97 gives “one year” as the period of limitation in bringing legal claims before Court.
On the other hand, the Dist. Judge “appeared to have been influenced by the Title to S. 22 and thought it was a Preferential Right but not Pre-emptive Right” to go in for Art. 137 in coming8 to his decision.
CRITICAL COMMENTS ON BENAMI TRANSACTIONS by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
In this article, I propose to take up a critical examination of the “Law relating to Benami Transactions”. This topic can be discussed with reference to the period both before and after the passage of the Benami Transactions (prohibition) Act, 1988. (hereinafter known as ‘the Act’)
The Parliament, in the preamble of the Act, declared it to be “an Act to prohibit benami transactions and to prohibit the right to recover property held benami” coupled with the object of delegating powers to the Central Government to frame the relevant rules for carrying out the objectives of the Act.
An earlier Ordinance was repealed with the passage of the Act. The Ordinance was promulgated to prevent tax evasion and also to curb the circulation of black money through such transactions.
It appears that the Bill, introduced to replace the Ordinance, was passed through the Parliament in great haste without thoroughly discussing the various provisions that were thought desirable to be incorporated in the Act.
The Bill was introduced on the recommendations of the Law Commission given in a report submitted to the Government after examining the earlier Ordinance referred to the commission. Finally, the Bill was placed before the Parliament on 31st August, 1988 and was immediately passed.
The Parliament, when it repealed the Ordinance and replaced it with the Act, though it desirable not only to prohibit the right to recover property held benami but also thought it fit to put an end to the general practice of the public in entering into benami transactions.
The Legislature adopted a multi-dimensional strategy to put an end to the hitherto widely practice of entering into benami transactions through the stringent provisions of the Act.
First, the Act specially laid down that, from 5th September, 1988
* Sri Raghu Raman C.S Full-Time Lecture in Law , 3-6-215 , Pendikanti Law college , Himayat Nagar , Hyderabad – 500 029.
1. Received the assent of the President on 5th September , 1988.
2. See the ‘Preamble’ of the Act.
3. Ref. Sec. 8 of the Act – “power to make rules”.
4. The Benami Transactions (Prohibition of the Right to Recover Property) Ordinance, 1988.
5. Ref. Sec. 9 (1) of the Act.
6. One of the many reasons for the promulgation of the Ordinance – Ref. Para 1.7(c) Chapter 1 of 5th Report of Law Commission, Delhi.
7. 130th report of the Law Commission of India, Delhi
8. Submitted on 14th Augutst, 1988.
9. Referred to the Commission on 22nd July,1988.
10. The Original Ordinance did not contain such general prohibition.
Kidnapping of child—Prosecution against father /mother by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
“Kidnapping”, like others kinds of unilateral action in relation to children, is to be strongly discouraged, but the discouragement must take the form of a swift, realistic and unsentimental assessment of the best of the interests of the child, leading, in proper cases to the prompt return of the child to his or her own country but not the sacrifice of the child’s welfare to some principle of law”.
In the important case ‘of kidnapping of a child’, The Court of Appeal, while ‘setting aside the conviction of a father for kidnapping his own child’ had referred ‘two most important questions of law of general public importance’ for decision to the House of Lords.
The two certified questions are as follows:
1. Whether the common law offence of kidnapping exists in the case of a child under the age of 14 years?
2. Whether in any circumstances a parent may be convicted of such offence where the child is unmarried and under the age of majority?
The facts that were responsible for referring the two questions of law were that MR.D, the respondent-father of a minor child, had kidnapped his own child by forcefully taking away the child from her mother once on 13-12-1978, being the first charge of the offence of kidnapping and again on 6-11-1981, being the second charge brought against the father. The child had already been declared as ‘the ward’ of the Family Court of the High Court on 10. 4.1978.
In his defense, to the first charge, the father had pointed out that, he had a lawful excuse for ‘taking away the child from the mother and out of this country as he believed that the child was an illegal immigrant and therefore could be lawfully be removed’since the child was in England though born in New Zealand,
In the Lower Court, Judge Lymbery ruled that under the common law of England, ‘a father could commit the offence of kidnapping of his own child, even though that child was still a minor’.
The Jury convicted the respondent on the second charge.
The Court of Appeal quashed his conviction on the reasons that the offence could not be committed by anyone against a child under 14 years of age and the offence could not committed by a parent against an unmarried child who was still a minor.
In the House of Lords, Justice Brandon, in the only opinion given, which was acceptable to the other Lords, excellently summed up the ingredients of the offence of kidnapping as (1) the taking or carrying away of one person by another (2) by force or fraud (3) without the consent of the person so taken or carried away (4) without lawful excuse.
After tracing the history of legislation on the crime of ‘child stealing’ now known as ‘kidnapping’ in the new Offences Against the Person Act.1981, (known as The OP Act)and also by rejecting the beautiful argument of the Counsel for the father that ‘in view of the absence of protection to the father of a legitimate child comparable to the protection given to both the father and mother of an illegitimate child in the OP Act of 1981,’ in cases of offence of kidnapping, (such lack of protection) could only be explained and (understood) that ‘the legislature thought that it was impossible for father of a legitimate child to be guilty of the offence of kidnapping if he takes the child by force or fraud’, Lord Brandon, in an equally beautifully reply, had declared ‘that in view of the changed social conditions and legal attitudes existing today it is possible for a father to commit the common law offence of kidnapping his own child’ as ‘the affirmative answer to the first question’.
Also giving a positive answer to the second question, Lord Brandon declared that ‘in all cases of kidnapping of a child, the absence of child’s consent is material fact, whatever may the age of the child. In the case of very young child who could not the…. understanding or the intelligence to give consent the absence of consent is an inference to be drawn on the fact of the age of the child. In the case of older child the Jury had to decide whether the child has sufficient understanding and intelligence to give consent and then consider whether it was proved that the child did not give consent’.
Accepting that it is desirable as a matter of policy, Lord Brandon gave the unanimous opinion of the House that ‘proceedings for Contempt of Court against father for snatching away his own child declared as ward of the Court’ can be initiated and ‘criminal prosecution can be brought only in exceptional cases keeping in mind the reprehensible conduct of the father.
The House of Lords set aside the ruling of the Court of Appealand sustained the conviction of father.
Friday, July 22, 2011
ATTORNEY CLIENT PRIVILEGE by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
If you reveal your secrets to the wind, you should not blame the wind for revealing them to trees.
The exact scope and extent of the Attorney-Client Privilege (Referred to as the Privilege) is still in controversy though it is one of the most venerable of the common law privileges.
In spite of the fact that the fundamental Legal Maxim is that “the public ……. has a right to every man’s evidence”, the Courts in England, America and India have protected the confidentiality of communications between Attorney and Client with few exceptions.
This privilege was recognized as part of the law ‘for the benefit of the Client who gave confidential information to his lawyer in defending his case’ and ‘unless the client gives permission his lawyer cannot give evidence of this information’.
At least in theory, ‘Legal Professional privilege does not come to an end’ and it may subsist for many years’ is generally the accepted rule.
This rule was usually followed in many countries including India.
Some times it is also argued that ‘the privilege is only coextensive with the interest of the holder (the client) in preserving it’. Therefore, when client did not obtain any more benefit in preserving the privilege, it may be defeated by the interest of another person with an immediate need for access to the information given to the Attorney.
However, some commentators recently began “to argue that the privilege should be limited particularly after the death of the client regard being had to the unavailability of relevant information”.
The US Supreme Court (known as the ‘USSC’) had to grapple with the issue of preservation of the privilege even after the death of the client in Swindler & Berlin in the year 1998.
The facts were ‘that 7 employees of White House Travel office were fired for some financial irregularities found in some Travel Office contracts entered into by the Government.
The US Attorney General asked the Office of Independent Counsel (Referred to as ‘IC’) to probe this matter of firing of the 7 employees.
Meanwhile, White House Deputy Counsel, Mr. Vincent Foster went to meet Mr.James Hamilton, an attorney in the Law Firm, Swindler & Berlin to inquire about legal representation relating to the dismissals. Hamilton took 3 pages of Hand written notes of this meeting after assuring Mr Foster that their conversation was privileged. Completely disturbed by the ugly turn of events, Foster committed suicide.
At the request of IC, in proceedings before The Federal Grand Jury, the Jury asked Hamilton and the Law Firm to produce the notes of the meeting with Foster.
Hamilton argued that the notes were protected under both Attorney-Client and Work Products privilege.
The Court of Appeals for the District of Columbia Circuit reversed the District Court ruling that “notes prepared by an Attorney need not be produced by not enforcing the subponae”.
Despite accepting that Courts have generally assumed that the privilege survives the death, The Circuit Appeals Court held that the client’s death calls for qualification of the privilege. The Circuit Court also held that ‘the “unavailability through death, coupled with the non-existence of any client concern for criminal liability after death, creates a discrete realm (use in criminal proceedings after the death of the client) where the privilege should not automatically apply”. As such, an attorney can be compelled to disclose client statements if they concerned a significant aspect of the crimes at issue and as aspect as to which there is a scarcity of reliable evidence”.
CHILDCARE PROCEEDINGS by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
“A communication once privileged is always privileged.”
Lord Cockburn in Bullock V. Corrie
(Published In All India Reporter, Nagpur
In creating more exceptions to the preservation of the ‘Attorney-Client Privilege’, (called as ‘The Privilege’ in this legal notes) Lord Thorpe, in Essex County Council, took the bold step in giving the ruling that in view of the fact that ‘welfare of the child is of paramount consideration to the Courts’, Attorneys have ‘the duty to disclose the medical and other reports’ that may contain ‘statements adverse to their clients’ interests’.
While not accepting that the privilege cannot be displaced under the Act without legislative process, Lord Thorpe declared that ‘the judge in wardship (proceedings ) held a responsibility to investigate any material relevant to the determination of the welfare of the child, whether put before him by the parties or in adversarial range or not. Where the Court considers the welfare of the child, the power it holds enables it to override the privilege which is set up to preserve or enhance the adversarial position of one of the parties’.
The above ruling was given on the following facts. The Local Council applied for care order in respect of a chilled of a mother who was already a drug addict. The mother opposed the disclosure of the contents of a Report, already handed over to Legal Counsel of her, prepared by a consultant psychiatrist on the general and behavior and tendency of drug addicts in matters of protecting the welfare of a childe as there were some adverse remarks about her conduct and behavior.
Lord Thorpe, in giving his ruling, did not follow the opposite view of Lord Douglas Brown in Baking and Dagenham London Borough Council V. O. but ‘picked up where Lord Johnson left’ and further developed the law on this point.
The disclosure of the contents of the Report was allowed.
POST DIVORCE MARRIAGES PENDING APPEAL by Sri Chadalavada Raghuraman, Faculty of Law, Pendekanti Law College, Hyderabad
IN RECENT times the legal validity of ‘post divorce marriages pending appeal’ has come up for decision before the apex court in some cases. This problem arises when a successful spouse in divorce proceedings solemnizes his or her second marriage immediately after divorce has been granted by the lower court. They do so without inquiring whether or not an appeal was submitted, despite the fat that the unsuccessful spouse has a right to prefer an appeal in the high court including the right to bring this matter before the Supreme Court in some exceptional circumstances.
The right of appeal is given in section 28(4) of the Hindu Marriage Act, 1955 and the appeal has to be filed within 30 days of the decree of divorce.
The right to re-marriage is given in section 15 of the above Act. The proviso to the section declares: “it shall not be lawful for the respective parties to marry again unless one year has expired from the date of the decree of divorce passed by the lower court on the first occasion”.
The legislature has put in a period of one year as waiting period for the divorced persons to marry again by adding the proviso to section 15, with the hope that by that time the unsuccessful spouse may exhaust all the appeals available to him or her and the divorce proceedings would have reached their finality.