BOMBAY HIGH COURT

ANITA CHANDRAKANT KODKANY…. VS. DR. BAKHTAWAR DASTUR & OTHERS…

DATED : 21.04.2017

Summarised Judgement :

Introduction :

The issue therefore is :

Whether the lineal descendants of deceased brothers and sisters shall, in certain events, succeed to the property of the intestate, per stirpes or per capital ?

Facts of the Case :

Mr. Ardeshir  Choksey had six children, two sons and four daughters. Both sons, viz. Mr.Edulji Ardeshir Choksey and Mr.Ratan.

Two of the daughters Ms.Naju Ardeshir Choksey and Ms.Sheroo Ardeshir Choksey were also unmarried and died intestate. Only two daughters, namely Mrs.Nergish Chandrakant Kodknany and Mrs. Bachoo Phiroze Chaina got married. Nergish had two daughters Ms.Anita Chandrakant Kodknany and Mrs.Rita Mahesh Swamy and Bachoo had one daughter Mrs.Naznin M. Meherji. Anita is the Plaintiff, Rita is Defendant No.2 and Naznin Meherji is Defendant No.3. The Plaintiff and Defendant No.2 are together and Defendant No.3 is the main contesting Defendant. Defendant No.1, not belonging to the family, is the Administrator of the estate. Family tree of Ardeshir Chowksey is as under :-

The suit has been filed for administration of the estate of Edulji Ardeshir Choksey, Sheroo Ardeshir Choksey and Ratan. Ardeshir Choksey who died instate (all of whom are collectively referred to as the deceased). It is the case of the Plaintiff that it be declared that the Plaintiff, Defendant No.2 and Defendant No.3 have equal shares in the estate of the deceased.

It is the case of Defendant No.3 that 50% of the estate of the deceased should be distributed between the Plaintiff and Defendant No.2 (i.e. 25% each) and balance 50% to go to Defendant No.3. According to Defendant No.3, if Nergish, mother of the Plaintiff and Defendant No.2 and Bachoo mother of Defendant No.3, had been alive, they would have been entitled to 50% share each to the estate of the deceased. Thus, the Plaintiff and second Defendant are collectively entitled to 50% share of the estate of the deceased and the third Defendant is entitled to 50% of the estate of the deceased and not equally. Defendant No.3 states that the Plaintiff and second Defendant will not be entitled to 1/3 rd share of the estate as claimed in the suit. The dispute, therefore, is whether the Plaintiff and Defendant No.2 together to get 50% or together get 66.66%. The value of 16.66% is rather substantial and that is the cause for disagreement.

Observation of Court :

In the circumstances, there shall be a preliminary decree as under : 50% of the state of the deceased shall go together to the Plaintiff and Defendant No.2 and 50% shall go to Defendant No.3.

Mr.K.K.Trivedi, Commissioner for taking accounts of this Court, is appointed as Administrator of the estate of the deceased. Defendant No.1 is directed to hand over / transfer to the Administrator, estate of the deceased together with an affidavit, within six weeks from today, disclosing therein the extent of the estate of the deceased with full particulars and copies of the documents annexed thereto. Mr.Bilve, learned counsel for Defendant No.1 states that all the estate consists of only movable assets in the form of physical (not dematerialized) shares and debentures of various companies.

Judgement :

Once the Administrator gets possession of the shares and debentures, the Administrator to promptly take steps to open a Demat account and corresponding bank account. The Administrator shall also address appropriate communication to the companies to convert these shares and debentures into dematerialized form and the companies shall act on the communication from the Administrator and a copy of this order authenticated by the Administrator. Notice of Motion also stands disposed of accordingly. 

----------------------------------------

BOMBAY HIGH COURT

RUSSI JAL DORABJEE & ORS…. APPLICANTS VS. BHARAT DALPAT PATEL & ORS

DATED : 22.03.2017

Summarised Judgement :

Introduction :

The Flat was purchased by Ms. Ivy Framroze Cooper (‘Ivy’). Ivy passed away intestate on 30th July, 1995 leaving behind, her husband -Keki Jehangir Munshi (‘Keki’), her sisters - Jer Mithaiwala, Sheroo Dorabjee (wife of Plaintiff No. 1) and Putli Kersi Dodhi - Plaintiff No. 2 and two brothers i.e Burjor Framroze Cooper - Plaintiff No. 3 and Kersi Framroze Cooper - Defendant No. 5.

Facts of the Case :

At the time of Ivy's death, as per the law applicable to the Parsis dying intestate, Keki became entitled to 50% of Ivy's estate and her siblings became entitled to the remaining 50% of Ivy's estate including the Suit Flat.

However, after Ivy's demise, Keki shifted into the Suit Flat and thereafter sold the flat at Chheda Sadan. According to the Plaintiffs, he had requested the siblings of Ivy/their heirs to permit him to occupy the entire Suit Flat during his lifetime since they were now all co-owners of the Suit Flat. In return, Keki agreed to bequeath his 50% share in the Suit Flat to Ivy's siblings.

In or around 2012, Keki suffered a stroke which resulted in paralysis of the right side of his body. He was 89 years old at that time and was left physically and mentally disabled. Taking advantage of the situation, Defendant No. 1 moved into the Suit Flat with his wife and daughter i.e Defendant Nos. 2 and 3 under the guise of taking care of Keki.

According to the Plaintiffs, that Keki had purportedly executed a registered Gift Deed dated 21st April, 2014 in respect of the Suit Flat in favour of Defendant No. 1 (hereinafter referred to as the ‘Gift Deed’).

According to the Plaintiff, a perusal of the Gift Deed revealed the following shocking facts:

a) That Keki has not signed the same and it only bears his purported thumb impression.

b) That Keki has claimed to be the sole owner of the Suit Flat on the date of the purported gift, to the exclusion of the Plaintiffs and Defendant No. 5

c) That Keki had got the Share Certificate of the Suit Flat transferred to his sole name after Ivy's death.

d) That Defendant No. 4 Society through its Manager as well as its Secretary have purported to certify that Defendant No. 1 and his family have been residing in the Suit Flat.

e) That Defendant No. 4 had issued a maintenance bill dated 4 January, 2014 in respect of the Suit Flat in the name of Defendant No. 1 prior to the date of execution of the Gift Deed.

f) That Defendant No. 1 had managed to get the electricity bill in respect of the Suit Flat transferred in his name prior to 17 April, 2014 i.e prior to the date of execution of the Gift Deed.

According to the Plaintiffs, the Plaintiff Nos. 1 and 2 are 87 and 89 years old respectively. Plaintiff No. 3 is a resident of the United Kingdom and also 86 years of age. The Plaintiffs through Zubin Cooper, the son of Plaintiff No. 3 who is a citizen of the United Kingdom, started making inquiries as to how they could have legal recourse in respect of their share in the Suit Flat. However, before the Plaintiffs could take any steps, Keki passed away on 4 January, 2017.

After his death, Defendant No. 1 claimed that Keki had left a Will and that he was in possession thereof and that the same would be read out by him on 21 January, 2017. However, on one pretext or another, Defendant No. 1 avoided reading of Keki's Will.

The Plaintiff therefore filed the above Suit for a declaration that the Plaintiffs and Defendant No. 5 are collectively entitled as Co-owners to a 50% undivided share, right, title and interest in the Suit Flat; for a declaration that the Gift Deed dated 21 April, 2014 is illegal and null and void and that no title passes to Defendant No. 1 thereunder;

Observation & Judgement :

In view of the aforestated facts, it is more than prima facie established that Keki had only 50% right in the Suit Flat. He thus, vide the Gift Deed cannot under law, gift 100% of the Suit Flat to Defendant No. 1, nor under the law can he bequeath the entire Suit Flat in favour of Defendant No. 1 vide his Will.

The Plaintiffs and Defendant No. 5 do have 50% share in the Suit Flat since the same has devolved on them as explained hereinabove, under the Parsi Succession Act.

In the above circumstances, the following Order is passed:

i) The Court Receiver, High Court, Bombay, is appointed Receiver in respect of the Suit Flat.

ii) The Court Receiver shall have the Suit flat valued and based on the valuation report, in consultation with the parties, fix the security deposit as well as the monthly royalty amount, on which the Suit flat can be given to a third party for use and occupation as Agent of the Court Receiver.

iii) The third party, who is willing to use and occupy the Suit flat on the terms and conditions fixed by the Court Receiver, in consultation with the parties to the Suit, shall execute an Agency Agreement with the Court Receiver incorporating the usual terms and conditions.

iv) The Court Receiver shall invest the amount received towards security deposit in fixed deposit/s of a nationalized bank and shall after deducting his costs, charges and expenses from the amount received towards compensation/royalty, handover 50% of the balance amount to Defendant No. 1 and 50% to the Plaintiffs and Defendant No. 5 after obtaining a written undertaking from them that they shall bring back the said amounts in the event of this Court requiring them to do so.

v) The above Notice of Motion is accordingly disposed off.

vi) Liberty is granted to the parties as well as to the Court Receiver to apply in case any clarification is required.

----------------------------------------

DELHI HIGH COURT

SMT. MANEKA GANDHI VS. SMT. INDIRA GANDHI…

DATE : 10.05.1984

Summarised Judgement :

Facts of the Case :

Maneka Gandhi was married to Sanjay Gandhi on September 29th, 1974. Their son Feroze Varun Gandhi was born on March 13th, 1980. Sanjay Gandhi died on June 23rd, 1980. On February 3rd, 1982, Maneka Gandhi prepared a petition for grant of letters of administration in respect of some company securities under Section 278 of the Indian Succession Act, 1925. Due to non-appearance of the petitioners, the case was consigned to the records and was revived later. Notices were also issued to Indira Gandhi and Rajiv Gandhi. Indira Gandhi contended in her reply that she was one of the heirs to the estate of Sanjay Gandhi. However, she was not interested in claiming her share and wanted her share and interest in the properties to be treated as properties accruing to the ownership of Varun subject to strict surveillance and vigilance till Varun comes of age.

Issue : Whether the appellants, Maneka Gandhi and Varun Gandhi, were entitled to the estate of Sanjay Gandhi to the exclusion of the respondent, Indira Gandhi?

Judgment :

The District Judge who originally heard the petition held that Section 21-A of the Special Marriage Act lays down personal law will apply to the parties claiming the succession if marriage has been performed under the Special Marriage Act. Thus, in the present case, Indira Gandhi, Maneka Gandhi and Varun Gandhi were each entitled to 1/3rd share of Sanjay Gandhi’s estate and since Indira Gandhi relinquished her share in favour of Varun, Varun is thus entitled to 2/3rd share in the estate of his late father. 

Thus, the District Judge directed that letters of administration shall be issued to Maneka Gandhi, subject to certain terms and conditions.

Maneka Gandhi appealed against this judgment. It was submitted that Varun was entitled to 2/3rd share of property in his own right and was a necessary party but his name was omitted due to inadvertence and oversight. The Court rejected this plea and appointed a senior Joint Registrar as a guardian ad litem of Varun.

Retrospective application of Section 21-A of the Special Marriage Act, 1954 was contended. Sections 19-21 of the Special Marriage Act provide that whenever a person who is a member of an undivided family marries under the Special Marriage Act, he shall be deemed to have severed his relationship with such family. The combined effect of Section 5 of Hindu Succession Act and Sections 19-21 of the Special Marriage Act in case of a special marriage between two Hindus themselves, their own right of inheritance and succession to their properties would be governed by a different rule simply because they have chosen solemnization of marriage under the Special Marriage Act.

Hence, Section 21-A was included in the Special Marriage Act on May 27th, 1976 to remove this discrimination in succession in consequences of such type of marriages.

The Court held that Section 21-A does not affect marriages which were solemnized before its insertion. It does not affect the successions which had opened earlier than the amendment. Rights of succession to a person’s estate do not arise upon the marriage but arise upon the death of that person. It was therefore incorrect for the appellant to contend that this Section affects the transactions which have taken place before the Amendment nor does it impair or take away any vested right. Section 21-A is only prospective in operation, i.e. when the succession opened in this case on June 23rd, 1980, it was to be governed by the law that was in force on that date. The Court also upheld the constitutional validity of Section 21-A.

The counsel for the appellant argued that the appellant married a Parsi born of a Parsi father and therefore Section 21-A had no application in the present case which exclusively applied to Hindus. The Court found this submission to be devoid of merit. There was no allegation in any document filed or submitted by the appellant that Sanjay Gandhi was not a Hindu. Indira Gandhi was herself a Hindu and Sanjay Gandhi was brought up as a member of the family to which she belonged. He never underwent the Navjot ceremony to be christened a Parsi and in fact, Indira Gandhi openly brought him up as a Hindu. The marriage of Indira Gandhi was performed by Vedic rites. Sanjay Gandhi was thus born of Hindu parents. Thus, the contention that Sanjay Gandhi was not a Hindu was rejected and thus Section 21-A could be invoked in the present case.

The appeal and the revision stood dismissed. Rights of succession to a person’s estate do not arise upon marriage but arise upon the death of that person.

----------------------------------------

 

BOMBAY HIGH COURT

SAM SHAPOOR IRANI VS. NAOMI SAM IRANI

DATED : 29.10.2018

Summarised Judgement :

Introduction :

Mrs. Irani was married for 10 years, and shared two children with her husband. She sought divorce from him on grounds of cruelty before the Bombay High Court. However, even after two years of filing the petition, the jury was not appointed. Thus faced with the inevitable and prolonged delay in progress of the proceedings, she decided to approach the Apex Court.

Facts of the Case :

In her petition before the Supreme Court she challenged the Sections 18, 19, 20, 24, 30, 46 and 50 of the PMDA (which deal with the jurisdiction, constitution and appointment of the jurors) as being violative of Art 14 and 21 of the Constitution. She argued that the PMDA had deprived her of the specialised jurisdiction of normal family courts, and subjected her to mental agony. The system was alleged to have breached Article 14 of the Constitution, which guarantees equality, as it prevents Parsi women from approaching traditional family courts, and availing the benefits extended by them. This places Parsi women on a separate footing vis-à-vis women belonging to other faiths, thereby propagating inequality within the gender on the basis of religion. The validity of personal laws is subject to their testing on the touchstone of fundamental rights, and contravention with the latter can render the personal laws invalid.

It is worth noting that family courts are equipped with child care centres, counsellors, in-camera hearings and trained judges who serve as presiding officers, and these benefits are lacking in the Parsi jury system. Further, the selection and sitting of jury members takes an unreasonable amount of time, which causes unjustified delay in proceeding of the case.

Unlike Hindu or Christian marriages which have the provisions for quick disposal of cases through mediation procedures, the Parsis are deprived of such speedy disposal mechanisms as the PDMA lacks provisions for alternate dispute resolution mechanisms, and the presence of jury is an impediment to mediation proceedings.

The presence of jury members leads to breach of privacy of the parties as it gives random members of the local Parsi community the chance to offer opinions on delicate and personal matters. The Act does not prescribe any requisite criteria for qualification as a jury member. Therefore, most of the jury is biased owing to societal norms, and moral values, instead of sound legal or judicial principles.

Judgement :

The Supreme Court issued a notice to the Central Government, directing it to put forth its views on the issue. The Centre is set to make its submissions in the upcoming few months.

----------------------------------------

BOMBAY HIGH COURT

MINOO RUSTOMJI SHROFF & ORS. VS. UOI & ORS.

DATED : 10.03.2005

Summarised Judgement :

Introduction :

The petitioners, who are the trustees of the Parsi Panchayat Funds and Properties have sought a declaration that the learned Presiding Judge of the Parsi Chief Matrimonial Court at Bombay does not have jurisdiction to pass a decree of divorce by mutual consent under the Parsi Marriage And Divorce Act, 1936 without seeking aid/assistance from the delegates appointed under the Act. The petitioners have also sought a Writ of Certiorari to quash the decrees passed by the learned Presiding Judge (a learned Judge of this High Court) of the Parsi Chief Matrimonial Court dissolving the marriages of respondent Nos. 3 and 4 and so on to respondent Nos. 27 and 28.

Facts of the Case :

The question of law that arises for consideration in this petition is whether in a suit filed under Section 32B of the Act for divorce by mutual consent the Presiding Judge of the Parsi Chief Matrimonial Court is entitled to pass a decree declaring the marriage to be dissolved without seeking the aid/assistance of the delegates.

From the analysis of the section, it will be apparent that the filing of the petition with mutual consent does not authorise the Court to make a decree for divorce. There is a period of waiting from 6 to 18 months. This interregnum was obviously intended to give time and opportunity to the parties to reflect on their move and seek advice from relations and friends. In this transitional period one of the parties may have a second thought and change the mind not to proceed with the petition. The spouse may not be a party to the joint motion under Sub-section (2). There is nothing in the section which prevents such course. The section does not provide that if there is a change of mind it should not be by one party alone, but by both.

The High Courts of Bombay and Delhi have proceeded on the ground that the crucial time for giving mutual consent for divorce is the time of filing the petition and not the time when they subsequently move for divorce decree. This approach appears to be untenable. At the time of petition by mutual consent, the parties are not unaware that their petition does not by itself snap marital ties. They know that they have to take a further step to snap marital ties. Sub-section (2) of Section 13-B is clear on this point. It provides that "on the motion of both the parties....if the petition is not withdrawn in the meantime, the Court shall.....pass a decree of divorce.." What is significant in this provision is that there should also be mutual consent when they move the Court with a request to pass a decree of divorce. Secondly, the Court shall be satisfied about the bona fides and the consent of the parties. If there is no mutual consent at the time of the enquiry, the Court gets no jurisdiction to make a decree for divorce. If the view is otherwise, the Court could make an enquiry and pass a divorce decree even at the instance of one of the parties and against the consent of one of the parties and against the consent of the other. Such a decree cannot be regarded as decree by mutual consent."

Judgement :

The judgment does not support Mr. Dada's submission. We will presume that the interpretation placed by the Supreme Court on Section 13B of the Hindu Marriage Act, 1955 applies equally, to Section 32B of The Parsi Marriage And Divorce Act. In that event, the necessary consequence of one of the parties withdrawing their consent after the suit has been filed for divorce by mutual consent but before it is decreed, would be to take the suit out of the purview of Section 32B. In such an eventuality, there would be no question of seeking the aid of the delegates. In fact, the judgment is against Mr. Dada's submission.

Mr. Dada stated that so far the delegates have never caused any obstruction or impediment in the smooth functioning of the Court. We have no reason to doubt the same. However responsible and co-operative the conduct of the delegates may have been over the years, the same cannot be an aid in the interpretation of the provisions of the Act. In the circumstances, the Writ Petition is dismissed.

----------------------------------------

BOMBAY HIGH COURT

VEENA RAMCHANDRA PATEL VS. BAKHTAWAR ARZAN GHADIALLY

DATED : 11.12.2019

Summarised Judgement :

Facts of  the Case :

The pleadings, in brief, are as follows :-

One Dinshaw Hormusji Gandhi, the deceased, died on or about 7 th December 2013 at Mumbai. He was a resident of flat no.3 in Sodawaterwalla Building No.II, Batliwala Villa Compound, Sleater Road, Naushir Bharucha Marg, Mumbai and left properties in Mumbai and in the State of Maharashtra.

According to the plaintiff, the deceased left behind a Will said to have executed on 27 th December 2009. Since no executor was appointed, the plaintiff as a legatee filed this suit.

The deceased's wife Homai predeceased him on 17th August 2006 and the deceased had no children. The plaintiff has contended that there are no legal heirs from either his father's side or his mother's side.

Whereabouts of distinct relatives, agnates or cognates, were not known. Thus, no heirs contemplated under Sections 54 and 55 of the Indian Succession Act, 1925, were known to the plaintiff and as a result of which the plaintiff proceeded to apply for service of Citation by publication in two TS-67-14.doc newspapers.

The Caveat filed by the defendant is supported by her affidavit dated 15th December 2014, in which the defendant has contended that the Will dated 27th December 2009 is not an authentic document, because the deceased was said to be 82 years old at the time of execution of the Will and was physically unfit to execute the Will. The defendant has disputed the authenticity of the signature and the thumb impression of the deceased and contended that the signature and the thumb impression may have not been affixed by the free will of the testator, but due to undue pressure brought on the deceased by the plaintiff, taking advantage of old age and ill health of the deceased.

The defendant says so because the plaintiff is a total stranger and not related to the deceased. The defendant also contended that the deceased was forgetful and the Will was not genuine and is a forged and fabricated document. That apart, the deceased had no right to prepare the Will in relation to the property, which is allegedly joint family property belonging to the defendant's grand-father one Edulji Daruvala and aunt Nargis Edulji Daruvala.

Observation & Judgement :

In  Pentakota Satyanarayana and Ors. Vs. Pentakota Seetharatnam and Ors.2, the Supreme Court held that although the initial onus is on the propounder to prove execution of the Will, the onus thereafter shifts to the party alleging undue influence or coercion in execution of the Will. The mere fact that the beneficiaries under the Will had actively participated in the execution of the Will or that natural heirs were debarred thereby or whether the testator had a draft Will with him while going to the scribe or that he was at that time accompanied by a number of persons or that one of the beneficiaries was merely present at the time of registration, could not make out a case of a suspicious circumstance, undue influence, coercion or fraud. Mere presence of a beneficiary or propounder of the Will at the time of registration of the Will, it was held, was not a suspicious circumstance.

In the present case, I am of the view that the plaintiff has discharged her burden of proving execution of the Will notwithstanding her participation and preparation of the Will and that the burden of proving that the Will was invalid by reason of the testator not being of sound and disposing mind and that the execution of the Will was caused by exercising coercion or that the testator was coerced or subjected to undue influence 2 (2005) 8 SCC 67 TS-67-14.doc leading him to execute the Will, having shifted to the defendant, the defendant has failed to discharge this burden.

In the circumstances, issue nos.3 and 4 are answered in the negative and as a consequence, the suit is liable to be decreed. Accordingly, I pass the following order :-

      (i)      Caveat is accordingly discharged.

      (ii)     Registry shall issue grant in favour of the plaintiff.

      (iii)    Suit is decreed in the above terms.

----------------------------------------

DELHI HIGH COURT

ROHINTON EDALJI VS. ARVIND RAI & ORS

DATED : 3.12.2019

Summarised Judgement :

Introduction :

The background of the present proceedings is that one Ms. Piroja Edalji and Mr. Hoshang Edalji were 50% owners of property bearing No.213 (lower ground floor), Kailash Hills, New Delhi - 110065 (hereinafter, "suit property"). Ms. Piroja Edalji passed away on 19th December, 2012, leaving behind two daughters and two sons. The Petitioner is one of the sons of Ms. Piroja Edalji and the brother of Mr. Hoshang Edalji. Mr. Hoshang Edalji passed away on 29th March, 2018, in Delhi. He used to reside in the suit property.

Facts of the Case :

After the death of Mr. Hoshang Edalji, disputes arose between the Petitioner and his family and Respondent No.2 - Mr. Babulal, who was working as the domestic help of Mr. Hoshang Edalji. It is not disputed that Respondent No.2 was working as the domestic help of Mr. Hoshang Edalji since 1994. Respondent No.1 - Mr. Arvind Rai is the son of Respondent No. 2

The two sisters of the Petitioner and Mr. Hoshang Edalji have relinquished their shares in the suit property in favour of the Petitioner. Mr. Hoshang Edalji did not have any children. Thus, it is the claim of the Petitioner that he is the absolute owner of the suit property, being the real brother of Mr. Hoshang Edalji.

The case of the Petitioner is that upon the death of his brother, when he went back to the suit property, the Respondents did not permit him to enter the suit property. He was, therefore, forced to file a complaint with the police and an FIR was registered on 9th May, 2018. Post the said FIR being registered, the Respondents set up an alleged Will dated 15th September, 2017, which they claim has been executed by Mr. Hoshang Edalji, in favour of Respondent No.1. They have filed a probate petition seeking probate of the said Will and the said petition is stated to be pending. During the pendency of the probate petition, the Petitioner moved an application under Section 192 of the Indian Succession Act, 1925, which was dismissed by the ld. Trial Court, and is challenged in the present petition.

Observation & Judgement :

Under these circumstances, this Court passes the following directions:

a) It is directed that the suit property ought to remain with the Edalji family, until the decision in the probate petition.

b) The Petitioner is permitted to enter the suit property and occupy the same. Considering that during the lifetime of the deceased, the Respondents were in occupation of the servant's quarter on the terrace of the suit property, they are permitted to only occupy the servant's quarter, during the pendency of the probate petition.

Accordingly, the impugned order is set-aside and the matter is remanded back to the ld. ADJ, in order to conduct an inquiry as per Section 193 and to pass final orders in the petition under Section 192.

In order to hand over peaceful possession of the suit property to the Petitioner is appointed as a Local Commissioner to visit the suit property on 10th December, 2019 at 11am. The respondents shall hand over the peaceful possession of the property to the Local Commissioner who shall then hand over the same to the Petitioner.

The Local Commissioner shall also prepare a complete inventory of the movable property belonging to the deceased - Mr. Hoshang Edalji in the suit property. The said belongings shall be handed over to the Petitioner. Possession of the servant's quarter shall, however, be given to the Respondents, for their living, until the decision in the probate petition. One set of keys of the servant quarter shall be given to the Respondents and the second set of keys shall be deposited with this Court. The commission shall be executed in the presence of the police. The SHO of the area concerned is directed to render all assistance to the Local Commissioner. One representative and two counsels on behalf of the parties are permitted to accompany the Local Commissioner. The Local Commissioner shall be entitled to take photographs as well. The Respondents shall ensure that they cooperate in the execution of the Commission. One key of the property shall remain with the Petitioner and another key shall be deposited in this Court. The fee of the Local Commissioner is fixed at Rs.50,000/- to be paid by the Petitioner. Report of the Local Commissioner be submitted within two weeks. If there is non-cooperation, the Local Commissioner is permitted to break open locks.

With these observations, the petition and all pending applications are disposed of.

----------------------------------------

KERALA HIGH COURT

SAUMYA ANN THOMAS VS UOI

DATED : 25.02.2010

Summarised Judgement :

Introduction :

Is the stipulation of a period of two years as the minimum mandatory period of separate residence in Sec.10A(1) of the Divorce Act right, just and fair? Is it arbitrary, fanciful and oppressive? Does that stipulation offend Art.14 and/or Art.21 of the Constitution? Does that stipulation deserve to be read down to "one year" to save the provision from the vice of unconstitutionality? These interesting contentions are raised for our consideration in this writ petition.

These questions arose for consideration before us in this writ petition as also in W.P.(C) No.24219/08. Both were heard together. We have had the advantage of hearing Sri. G.Shrikumar, the learned counsel who was requested to render
 assistance as amicus curiae to this Court.

Facts of the Case :

The petitioner and the 2nd respondent are spouses. They are Christians by faith. Their marriage was solemnized on 6/4/08 in accordance with Christian religious rites. Differences and disagreements arose instantly after marriage and the spouses started separate residence with effect from 21/9/08. The petitioner herein filed an application for divorce on 5/12/08. That petition was numbered as O.P.No.1313/08. During the pendency of that petition, the parties appear to have settled all their outstanding disputes. They entered into Ext.P1 agreement. They consequently filed I.A.No.536/09 with a prayer that the marital tie may be dissolved by a decree for divorce on mutual consent under Sec.10A of the Divorce Act. They filed I.A.No.537/09 to dispense with the waiting period of six months under Sec10A(2) of the Divorce Act. By the impugned order, the court below rejected both the applications holding that the period of two years having not elapsed admittedly from the date of commencement of separate residence, this joint petition under Sec.10A of the Divorce Act is not maintainable.

Observation of Court :

We come back to the facts of the case. The marriage was solemnized on 6/4/08. Separate residence commenced on 21/9/08. Separate residence has been there for a period exceeding one year on the date of application. A period of six months has already elapsed from the date of filing of the petition. We are satisfied, in these circumstances, that a decree for divorce can be granted as prayed for by the petitioners under Sec.10A of the Divorce Act.

Judgement :

In the result:

(a) This writ petition is allowed.

(b) The stipulation in Sec.10A(1) of the Divorce Act that the spouses must "have been living separately for a period of two years or more" is declared to be unconstitutional as the stipulation of the period of "two years" therein violates the fundamental rights to equality and the right to life under Arts.14 and 21 of the Constitution.

(c) To save the provision and to avoid the vice of unconstitutionality the period of "two years" stipulated in Sec.10A of the Divorce Act is read down to a period of "one year".

(d) The common impugned order passed by the court below is set aside. It is found that the petitioners are entitled to a decree for divorce under Sec.10A of the Divorce Act.

(e) Invoking the powers of the Family Court under Sec.10A of the Divorce Act as so read down, the marriage between the petitioner and the second respondent solemnized on 6/4/08 is hereby dissolved under Sec.10A of the Divorce Act.

----------------------------------------

KARNATAKA HIGH COURT

JOSEPH VARGHESE CHEERAN VS. SMT. ROSY KURIAN KANNAIKAL

DATED : 27.09.1999

Summarised Judgement :

Introduction :

This appeal has been filed under Section 19(1) of the Family Courts Act, 1984 (in short "the Act") against the judgment and decree dated 5th December, 1998 passed by the Family Court, Bangalore, in M.C. No. 648 of 1994 dissolving the marriage between the contesting parties under the provisions of the Indian Divorce Act, 1869 (in short, 'the Divorce Act').

On the other hand, the Family Court in purported compliance to Section 17 of the Divorce Act, has remitted the impugned decree of dissolution of marriage to this Court for confirmation by a three Judges Bench, which has been numbered as C.R.C. No. 31 of 1999.

Facts of the Case :

Under the aforesaid circumstances, it has become imperative on our part to ascertain as to whether the present appeal can be held to be maintainable because otherwise in substance it will amount to sitting in appeal against the judgment of a three Judges Bench of this Court confirming or disapproving the decree of dissolution of marriage, which will be ex facie impermissible. Therefore, Section 17 of the Divorce Act requiring confirmation of decree of dissolution by a three Judges Bench of this C6urt and the remedy of appeal provided under Section 19 of the Act to a Division Bench of this Court cannot stand together. As such either of the provisions has to give way to the other.

Under Section 4 of the Divorce Act, the matrimonial jurisdiction can be exercised by the District Courts. But Section 17 thereof requires that the decree of dissolution of marriage passed by the District Judge shall be subject to confirmation by a Bench of three Judges of a High Court like ours.

Judgement :

For the aforesaid reasons, since the impugned judgment and decree of dissolution of marriage has been passed under Section 17 of the Family Courts Act and not under the Divorce Act, the requirement of confirmation by the High Court as postulated under Section 17 of the Divorce Act cannot have any application and therefore reference made to this Court by the Family Court being C.R.C. No. 31 of 1991 was unwarranted and impermissible.

For the aforesaid reasons, we hold that the present appeal is maintainable under Section 19 of the Family Courts Act and consequently the reference before the Full Bench is declared as infructuous.

----------------------------------------