Author: admin

ISSUE:

Whether a company or a corporate body could be prosecuted for offences under the Foreign Exchange Regulation Act, 1973 (FERA) for which the sentence of imprisonment is a mandatory punishment and fine, even though a company cannot be subjected to imprisonment.

RULE:

A company is liable to be prosecuted and punished for criminal offences.

When the custodial sentence and fine are the prescribed mode of punishment, the court can impose the sentence of fine on a company which is found guilty as the sentence of imprisonment is impossible to be carried out.

Section 56 of the Act provides for imposition of minimum prescribed sentence of imprisonment wherever possible and also fine. Such a construction of the provisions of Section 56 of the Act to make it workable cannot be said to be a construction impermissible only because the statute under construction is a penal statute.

ISSUE:

Whether the suit property’s devolution be governed by the amended Section 6 of the Hindu Succession Act, 1956, and whether the provisions of Section 8 of the Hindu Succession Act of 1956 would apply to the facts of the present case or would the law as applicable before the enforcement of the 1956 Act apply?

RULE:

If the date of succession is before the insertion of the Amendment Act, then the said Act cannot be made applicable retrospectively

As long as a property remains in the hands of a single person, the same was to be treated as a separate property, and thus such a person would be entitled to dispose of the coparcenary property as the same were his separate property, but, if a son is subsequently born to him or adopted by him, the alienation whether it is by way of sale, mortgage or gift, will nevertheless stand, for a son cannot object to alienations so made by his father before he was born or begotten. But once a son is born, it becomes a coparcenary property and he would acquire an interest therein.

ISSUE:

Whether the definition of “person” in the Gujarat Agricultural Lands Ceiling Act, 1960, includes a body of individuals/association of persons?

Whether co-ownership, per se, is an “association of persons/body of individuals” and therefore constitutes a “person”?

Whether the ten purchasers, who became co-owners of the land, together constitute a “body of individuals/association of persons” and therefore a “person” within the meaning of that expression in the Ceiling Act?

Whether the partition dated 30-12-1971 among the co-owners is “deemed to have been made in anticipation to defeat the object of Gujarat Agricultural Lands Ceiling (Amendment) Act, 1972” under Section 8(1) of the Ceiling Act; and if so what is the effect of failure to make an application under sub-section (2) of Section 8 of the Ceiling Act?

What would be the position if some of the co-owners were non-agriculturists at the time of purchase of the lands? Whether the Mamlatdar can examine this issue when considering the question of surplus land under the Ceiling Act?

RULE:

Both definitions of the word “person”, in the General Clauses Act and the Ceiling Act, are inclusive definitions. The inclusive definition of “person” in the General Clauses Act applies to all Gujarat Acts unless there is anything repugnant in the subject or the context. The inclusive definition of “person” in Section 2(21) of the Ceiling Act, does not indicate anything repugnant to the definition of “person” in the General Clauses Act, but merely adds “joint family” to the existing definition.

When different persons buy undivided shares in a plot of land and engage a common developer to construct an apartment building, with individual ownership in regard to respective apartment and joint ownership of common areas, the co-owners of the plot of land, do not become an “association of persons/body of individuals”, in the absence of a deeming provision in a statute or an agreement.

Sub-section (1) of Section 8 makes it clear that where any person has partitioned any land held by him notwithstanding anything contained in any law, such partition shall be deemed to have been made in anticipation in order to defeat the object of the said Amendment Act unless it is proved to the contrary. Sub-section (2) provides how the affected person may prove the contrary by filing an application to the Collector seeking a declaration to that effect.

ISSUE:

Whether the Section 6 of Hindu Succession Act, giving women equal coparcenary rights retrospective and subsequently is appellant’s demand for coparcenary in her father’s ancestral property justified?

RULE:

Section 6 of The Hindu Succession Act, gives the right to a daughter of a coparcener “on and from” the commencement of the Act. The amended provision under section 6 of the act came into effect from 9 September, 2005. On and from that date, the daughter of a coparcener would become a coparcener in her own right just as a son would be by virtue of her birth and she would have the same rights and liabilities as that of a son. The devolution of her, interest should, therefore, be on and from 9 September, 2005.

No interest can devolve in a coparcenary property except on the death of the coparcener. In this case there has been no devolution of interest because no has been deceased. The share in the coparcenary, therefore, cannot “devolve” upon anyone. The succession, therefore, has not yet, opened.

ISSUE:

Whether an adopted son could claim a share in joint family property that had already devolved on a sole surviving co- parcener before a adoption?

RULE:

Section 12(c) of the Hindu Adoptions and Maintenance Act, 1956- This provision does not apply to joint family property, as it continues to retain its nature even when held by a sole surviving coparcener.

Mitakshara Hindu Law on Joint Family Property- The joint family property does not lose its character even if it passes into the hands of a sole surviving coparcener. If a son is born or adopted, he automatically becomes a co- parcener and gets a share in the property.

Adoption creates a fresh coparcenary right for the adopted son, giving him a claim over joint family property. However, alienations (sale, mortgage, gift) made before adoption remain valid and cannot be challenged by the adopted son. Adoption does not divest an estate vested before adoption, but it does create a new coparcenary right, allowing the adopted son to claim his share in joint family property.

ISSUE:

Whether the eldest daughter of the coparceners of a Hindu Undivided household eligible for the title of Karta ?

RULE:

If the eldest member of the HUF is a woman, her gender cannot be a disqualification from being its Karta since this disqualification has been removed by the amendment brought about under Section 6 of Hindu Succession Act in the year 2005.

The Karta of a HUF is always a senior most member of the HUF and one gender is not given a priority over the other.

A daughter, post the amendment brought under Section 6 of the Hindu Succession Act now stands on an equal footing with a son of a coparcener, she is now invested with all the rights of a coparcener, they can also assume leadership positions within the HUF.