Court : Mumbai
Decided on : Jul-12-1977
Reported in : AIR1978Bom229; 1978MhLJ204
..... defendants nos. 1 to 4. this submission, in our opinion, is again based on a misconception of the nature of the coparcenary property as understood in hindu law.27. it is well settled that the propertyaccording to ancient hindu law, maybe divided into two classes (1) jointfamily property (unobstructed orvizfrca/k and (2) separate property(obstructed or lgizfrca/k : joint family property is either ..... the suit filed by the real owner, gowraskar, such property is not included in any of the categories of ancestral property or joint family property or coparcenary property under the hindu law. 29. it was argued by mr. deshpande relying on the observations about the concept of possession in gurucharan singh v. kamla singh : 1scr739 that the possession of ..... by thefather by adverse possession by dismissal of a suit filed against him by thereal owner can never be ancestral property. the only category of propertytreated as ancestral property, accordingto hindu law is property which is^iarkeg* that is inherited by a fatherfrom his paternal ancestor. in the present case, it is nobody's case that ramchandra the father of defendant ..... paternal estate. the word 'ancestor' in its ordinary meaning includes an ascendant in the maternal, as well as the paternal, line; but the 'ancestral' estate, in which, under the hindu law, a son acquires jointly with his father an interest by birth, must be confined, as shown by the original text of the mitakshara, to the property descending to the father .....Tag this Judgment!
Court : Gujarat
Decided on : Apr-13-1977
Reported in : (1978)19GLR4
..... , however, was different. at pages 297 to 299, the legal position has been considered in the light of the ancient texts of hindu law which leaned in favour of woman's proprietary capacity under the bombay law. it was, however, pointed out that the restriction of a widow's full ownership on what was inherited from her ..... of shares according to the fathers (i.e. per stirpes).the learned judge, therefore, observed that the share of their father, according to mayne's hindu law and the privy council must mean their father living at the time of the death of the paternal uncle. he added that it was not for that ..... 1886, 21 i.l.r. bombay, 285. it was only the daughter who was entitled to inherit absolutely from the mother or the father under the hindu law as prevailing in the presidency of bombay, and in the case of a daughter that estate passed to her own heirs in the event of her death ..... because in the memo of appeal of this court a ground had been raised that the trial judge was in error in saying that mayukh school of hindu law would override mitakshara in gujarat. it was, therefore, observed by their lordships as under:we find that the question that arose mainly whether the appellants are ..... appeal.2. mr. oza has raised three contentions:(1) that a childless widow was entitled to inherit absolutely as per the settled principles of hindu law and, therefore, no question arose of any reversion to the husband's heirs;(2) that the father of fakirchand had migrated from jalgaon and he took .....Tag this Judgment!
Court : Punjab and Haryana
Decided on : Jan-31-1977
Reported in : AIR1977P& H141
..... existing concepts of stridhana exhibited so great diversity of doctrine on the point that it was no easy task to predict the precise legal position under the various rules of hindu law. the ancient texts attempted to enumerate the different heads of stridhana without any comprehensive definition, and with respect it may be stated that the later commentators did not, in any way ..... owners of property and not widows only. equally it has within its ambit property which was known as stridhan (with wide end variegated fetters thereon according to different schools of hindu law) as also property inherited by a female heir from female predecessors-in-interest and also that inherited from relations other than the husband. therefore, the specious argument sought to be ..... sources apart from the principal and the expressly enumerated ones.here again the end result in view was to confer absolute ownership as against the limited ownership under the preexisting hindu law.20. indeed it appears to me that the reliance on the language of the different clauses of the explanation ultimately boomerangs on the construction canvassed for on behalf of ..... , add to either the clarity or the uniformity of the law on the point. not only this but the restrictions imposed by hindu law on the proprietary rights of a woman both as .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-20-1977
Reported in : (1978)80BOMLR620; 1978MhLJ357
..... of the deceased abaji.2. he also submitted that, irrespective of whether she passed into the adoptive family or not, in accordance with the old hindu law, section 4 of the hindu succession act, 1956, overruled such rule, if any, with regard to the status of a daughter; and section 8 of that act entitled the ..... be founded on a different conception. the text of vasishtha quoted in dattaka mimansa (section v, pl. 31), which is said to afford the foundation of the hindu law of adoption, and which i have already referred to, recognizes the power of the father and mother to 'give or sell or abandon' their son as he ..... . l.r. 845, decided by sir john beaumont c.j., and wadia and lokur jj. where it was said (p. 609):it may be that in ancient and primitive society the son was regarded as hardly better than his father's slave, and the prominent idea involved in an adoption was the transfer of dominion or ..... from their virile seed and uterine blood.' this paternity of the father cannot be shaken off even though he may leave the family, as, according to the hindu shastras 'by no means can you make your father cease to be,'5. mr. paranjpe, however, relied on full bench decision of the nagpur high court ..... raised on behalf of the defendant in the lower court, as already stated above. but the point that the defendant was an heir of abaji under the hindu succession act, was taken in the memorandum of appeal filed in this court; and mr. paranjpe, the learned counsel found it impossible to repel the same, .....Tag this Judgment!
Court : Mumbai
Decided on : Jul-20-1977
Reported in : (1979)81BOMLR126; 1978MhLJ449
..... nominal owner of the property which is the subject of the benami transaction and always the real title vests in the true owner. mulla in his book on hindu law dealing with benami transactions has, observed that effect will always be given to real title and not to the nominal title. in para. 605 of the fourteenth edn ..... fallen out and the husband raised a dispute that all the amounts paid for the purchase of the flat were paid by him out of the funds of the hindu undivided family and the shares are really held by him but were acquired merely for the sake of convenience in the name of the present petitioner, his wife ..... therefore, is squarely fell under section 91 of the act.3. so far as is material, section 91(1) reads as follows:notwithstanding anything contained in any other law for the time being in force, any dispute touching the constitution, elections of the office bearers, conduct of general meetings, management or business of a society shall be ..... in the records of the society-opponent no. 3, in the name of opponent no. 1 in his capacity as manager and karta of the hindu undivided family. opponent no. 1 alleged that the said flat was shown in the income-tax assessment records as being the property of the ..... hindu undivided family and the exclusive possession of the flat was also with opponent no. 1 and his mother. the immediate cause of taking the dispute .....Tag this Judgment!
Court : Kerala
Decided on : Mar-30-1977
Reported in : AIR1978Ker172
..... . 80-81 of air): 'in view of the arguments addressed to them, their lordships desire to emphasize that the rule of res judicata, while founded on ancient precedent, is dictated by a wisdom which is for all time. 'it has been well said declared lord coke, interest reipublicae at sit finis litium-- otherwise ..... sc 1153), has accepted the position that the principle of 'might and ought' would have application in writ proceedings. (see the discussion in seervai's constitutional law of india, second edition, vol. ii, p. 828). we need not for the purpose of this case examine the same. 8. in view of our ..... the rule by the courts in india should be influenced by no technical considerations of form, but by matter of substance within the limits allowed by law'.the supreme court decision was concerned with the question of the applicability of the general principle of res judicata to courts and not to tribunals. ..... to an english source, it embodies a doctrine in no way opposed to the spirit of the law as expounded by the hindu commentators. vijaneswara and nilakantha include the plea of a former judgment amons those allowed by law, each citing for his purpose the text of katyayana, who describes the plea thus: 'if a ..... section 11 of the civil p. c. and has application to suits alone; that when a plea of res judicata is founded on general principles of law, all that was necessary to establish was, that the court that heard and decided the former case, was a court of competent jurisdiction; and that .....Tag this Judgment!
Court : Gujarat
Decided on : Dec-21-1977
Reported in : (1978)19GLR906
..... .9. the next argument which mr. doshi has raised is that the impugned circular violates the principles of natural justice and therefore is void. no law, rule or circular can be struck down on the ground that it does not provide for the implementation of the principles of natural justice. when such ..... pronouncements, to introduce chaos in it, to bracket the guilty and the innocent together and to protect the inefficient, incompetent and corrupt. a court of law cannot lend its hand to such a situation.3. therefore, so far as the consideration of the petitioner for promotion to the higher post is concerned ..... for the reasons which i have stated. firstly, there is no point in deciding an infructuous petition and secondly, any decision which a court of law records must be one which is capable of implementation. the view which i am expressing finds support in the decision of the supreme court in piare ..... order will not only mean one sided approach to the case but will lead to unworkable orders which will have no value whatsoever. a court of law does not make an order which is unworkable or academic. therefore, while deciding the petition of this type, it is necessary to take into ..... government resolution dated 24th may 1966 which, according to him, is constitutionally invalid. he has stressed vehemently his contention that since in the eye of law the petitioner was entitled to be considered for promotion to the higher post at the time when he was denied that consideration, the result of the .....Tag this Judgment!
Court : Kerala
Decided on : Jun-20-1977
Reported in : (1979)ILLJ111Ker
george vadakkal, j.1. the petitioner was appointed as the deputy chief superintendent of s.s.l.c. and other public examinations conducted in march/april, 1969 at centre no. 137, government high school, kalpakanchery. the chief superintendent was the headmaster of that high school. on information received that there were leakage of question papers, it was on enquiry and investigation found out that one purushothaman who was the peon of the aforesaid government high school at the material time opened the steel safe (almirah) kept in the headmaster's room in the said high school by using duplicate key which he took from the drawer of a table and pilfered one s.s.l.c. question paper from each packet intended for the examination to be held in march, 1969, which was to start on 19-3-1969. by ext. p1 communication dated 6-5-1969, the manager, pursuant to the directions received by him from the district educational officer, placed the petitioner under suspension until further orders with immediate effect. the said proceedings show that the suspension as aforesaid was in connection with the serious irregularities in the conduct of the s.s.l.c. examination of march, 1969 at the government high school, kalpakanchery centre where the petitioner was the deputy chief superintendent (the petitioner is a first grade graduate assistant of an aided school under the management of the second respondent herein). long thereafter the director of public instruction who is also the commissioner for .....Tag this Judgment!
Court : Supreme Court of India
Decided on : Sep-26-1977
Reported in : AIR1977SC2423; 1978CriLJ18; (1977)4SCC322; 1SCR560; 1977(9)LC657(SC)
..... be minimised when considering the appropriate sentence. we agree with the courts below that there are no extenuating circumstances to justify the lesser penalty. the special reasons mandated under the law are duly recorded by both the high court and the trial court and we are not in a position to say that those are inadequate to justify the sentence of ..... sick. there are absolutely no extenuating circumstances for passing a lesser sentence. on the other hand, the case, in our opinion, is eminently fit for imposing the extreme penalty of law.12. it is submitted that the accused was financially in straits with wife and two small children and this should be taken into consideration to merit clemency for the lesser ..... of judicial verdict but none of these guidelines can be cut and dry nor exhaustive. each case will depend upon the totality of the facts, circumstances and other matters revealed9. law directs the course of the court. after, enactment of the criminal procedure code in 1973 (act 2 of 1974), the judgment in a murder case 'shall state the special reasons' for a ..... circumstantial evidence and his conviction is, now beyond question.7. we have heard learned counsel of both sides on the question of sentence. the recent benign direction of the penal law is towards life sentence, as a rule and death as an exception awarding of which must be accompanied by recorded reasons.8. this court has in several decisions indicated guidelines .....Tag this Judgment!
Court : Mumbai
Decided on : Sep-09-1977
Reported in : AIR1978Bom212; (1978)80BOMLR622; 1978MhLJ418
..... sub-section (2) applicable in view of her pre-existing right of residence therein.16, mr. tipnis then contends that the right of residence of the plaintiff under the hindu law could not have extended to the entire house. she could legally claim, only reasonable portion thereof and she can be deemed to have become absolute owner, only of such portion ..... in our opinion, maintenance includes clothing, shelter and every other amenity indispensable for the living and subsistence of the women concerned and separate reference thereto, in the text of the hindu law or instrument cannot make any difference to the legal position that these form the integral parts of conception of maintenance itself.14. even if right of residence is treated as ..... joint family property invariably came to be covered by the instruments referred to in sub-section (2) emphasising the limitation to which such rights were subjected under the then existing hindu law. judicial opinion was sharply divided whether properties so allotted under such instruments were covered by sub-section (1) and the widow's possessing the same on the date of enforcement ..... thereof with the enforcement of the act.7. sub-section (2), however, seeks to keep such other limitations and restrictions untouched as were not the creatures of the pre-existing hindu law but were intentionally imposed on them, independently thereof, by the grantors of the properties, while making the grant out of love or some other considerations, in which property the .....Tag this Judgment!