MADRAS HIGH COURT

PERIYASWAMY VS INSPECTOR, VIGILANCE AND ... ON 23 MARCH, 1999

Summarised Judgement  

Facts of the Case:

Periyasamy, the appellant herein was employed as a Revenue Inspector in Revenue Department, Vangal Firka, Karur Taluk, Trichy District. The Special Judge at Richy by his judgment dated 28-4-1987 in S.C. No. 2 of 1986 convicted the appellant under Section 161, I.P.C. and Section 5(2) read with 5(l)(d) of the Prevention of Corruption Act, 1947 and sentenced him to undergo imprisonment for six months, for having received a sum of Rs. 200/- as illegal gratification from the Jagannathan of Varapalayam village, Karur Taluk.

Challenging the above said conviction and sentence, the appellant filed an appeal before this Court in C.A. No. 268 of 1987. This Court, after hearing the counsel for the parties, by the order dated 24-9-1992 acquitted the appellant in respect of the charges mentioned above, mainly on the ground that the sanction granted for prosecution was invalid.

On S.L.P. being filed by the State on behalf of the respondent-police, the Apex Court by the order dated 8-1-1998 held that the sanction was valid, in the light of Section 465, Cr.P.C. and set aside the judgment of acquittal and remitted the matter to this Court for fresh disposal of this appeal on other points raised herein.

In pursuance of the said order, the above appeal was posted by the order by My Lord The Chief Justice before Hon'ble C. Shivappa, J. When the matter came up for the first time on 19- 2-1998, Mr. Sridhar, the counsel earlier appeared submitted that he had already handed over the papers to the appellant and therefore, requested this Court to issue notice to the appellant. Accordingly, notice was issued. Then, it came up on several dates before the learned Judge. The counsel for both the parties entered appearance, in the meantime. They also argued on several dates between 23-3-1998 and 4-3-1999.

Observation of Court:

In the instant case, as stated earlier, the plea of the defence is receipt of the money towards Flag Day collection. On consideration of the facts and circumstances of the case, this Court holds that the amount was received only as a bribe and not as a Flag Day collection. I do not propose to hold, in the light of the decisions referred to above, that the appellant received the said amount towards the Flag Day collection for showing favour to P.W. 1, since the demand towards Flag Day collection has not been established by the defence in this case.

Therefore, it is, in this context, appropriate for this Court to direct the State Government to take into consideration of the view expressed by this Court with reference to the difficulties experienced by both the public servants and the public due to the Circulars issued by the Government.

Judgement:

In view of the peculiar situation where he was acquitted by this Court earlier and in the S.L.P. filed by the State, the Apex Court remitted the matter to this Court for fresh disposal, I deem it fit to modify the sentence of six months imprisonment into that of imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-.

So, the appellant is sentenced to undergo imprisonment till the rising of the Court and to pay a fine of Rs. 1,000/-. The appellant who is present before this Court today is directed to be in the Court till the rising of the Court so as to undergo the sentence. The time for payment of fine of Rs. 1,000/- is one month from today.

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MADRAS HIGH COURT

PALANIA PILLAI AND ANOTHER VS STATE ON 19 JANUARY, 1990

Summarised Judgement  

Introduction:

The appellants Palania Pillai and K. Rasheed Ahmed were tried in C.C. No. 11 of 1985 on the fire of the IX Additional Special Judge, Madras, for offences punishable under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act and S. 161, I.P.C.

The second appellant was charged with the aid of S. 109, I.P.C. Both the appellants were found guilty as charged and both of them were sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/ -; in default to undergo rigorous imprisonment for three months for the offence under the Prevention of Corruption Act. No separate sentence was imposed in respect of the offence under S. 161, I.P.C.

Facts of the Case:

The facts leading to the conviction of the two appellants need narration. The appellants will henceforth the referred to as A1 and A2 respectively. A1 at the relevant time was the Junior Engineer, Madras Telephone, Mambalam External. A2 was the Phone Inspector, Madras Telephones, attached to the same office. P.W. 2, Murugesan, a resident of West Jones Road, Saidapet, was a finance broker, carrying on his business under the name and style of "Sivasankar Agencies" Sivakami, the daughter of P.W. 2, was suffering from several ailments inclusive of skin disease, throat infection and ulcer in her stomach. In view of the sickness of his daughter, P.W. 2 wanted to have a casual telephone connection for a period of 60 days.

The need for the request of a casual telephone connection was to facilitate emergency calls being made to the Doctor as and when necessary. P.W. 2, therefore, sent his application Ex. P. 2, dated 11-9-1984 to the Deputy Area Manager (South), Madras Telephones.

Observation & Judgement:

On facts, I have held that the defence case of Rs. 300/- having been paid as donation for the Conference was not entitled to credence. The case law put forth before me by the appellants does not help them.

The evidence extracted in detail by me certainly indicate that the appellants had acted in unison and it will not be possible to exclude either of them from the charges framed against them. The judgment of the Trial court convicting the appellants as charged is perfectly justified, and needs no interference. The sentence imposed is only the minimum sentence, which has to be unhasitatingly sustained.

The appeal fails and it is dismissed.

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MADRAS HIGH COURT

V. SELVARANI VS THE CHAIRMAN ON 21 MARCH, 2011

Summarised Judgement  

Facts of the Case:

Petitioner’s husband was a Lineman working under the control of the second respondent and he died in harness and intestate on 1.12.2003. Petitioner made many representations to the second respondent for compassionate appointment within 1 year from the death of deceased but her request was rejected on the ground that petitioner is the second wife as per the certificate dated 20.01.2004  and so she is not entitled to the same.

Observation of Court:

Petitioner filed a suit and the court declared her as the legally wedded wife after the judgment the petitioner approached the competent authority to cancel that certificate and issue a fresh certificate after that she approached the fourth respondent for the compassionate appointment, and again her request was rejected on the ground of delay.

Since the first representation made by petitioner was within 3 years of the death of deceased and since then she was continuously pursuing her case so the next representation made by her cannot be treated as a belated application. So, the court held that the representation made by petitioner was well in time i.e. within 3 years.

Judgement:

Applying the above referred judgments to the facts of this case, the impugned order is set aside, with a direction to the respondents to consider the claim of the petitioner treating the application submitted by the petitioner dated 24.12.2008 as a continuation of earlier application submitted by her, in the light of the fresh legal heirship certificate issued by the authorities and pass fresh orders, within a period of four weeks from the date of receipt of copy of this order, without reference to the objections raised in the impugned order.

The writ petition is ordered accordingly. No costs.

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BOMBAY HIGH COURT

VANDANA BHIMRAO JADHAV VS INHABITANT OF MUMBAI ON 22 OCTOBER, 2013

Summarised Judgement  

Introduction:

By this petition, petitioners seek revocation of the heirship certificate granted by this court by an order dated 12 th March, 2010 to the respondent in Petition No. 91 of 2009 under section 2 of the Bombay Regulation VIII of 1827 in respect of the deceased Mr.Bhimrao Anand Jadhav. Some of the relevant facts for the purpose of deciding this petition are as under.

Respondent to this petition who is admittedly son of the said deceased Mr.Bhimrao Anand Jadhav had filed the said Misc. Petition No. 91 of 2009 for kvm MPT110.11 issuance of legal heirship certificate in this court.

t was stated in the said petition that the said deceased left behind the petitioner the only heir and legal representative of the said deceased. Considering the death certificate and other documents annexed to the petition, and considering the fact that inspite of proclamation issued, no objections were raised by any person, this court issued heirship certificate in favour of the petitioner therein.

Observation & Judgement:

So, the court in this matter held that the petitioners are entitled to include their names in the legal heirship certificate issued by this Court in Petition No. 91 of 2009 as legal heirs issued under section 2 of the Bombay Regulation VIII of 1827 in favor of the respondent.

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MADRAS HIGH COURT

K.SELVARAJ VS THE DISTRICT COLLECTOR ON 3 FEBRUARY, 2015

Summarised Judgement  

Writ petition filed under Article 226 of the Constitution of India praying for a writ of  certiorarified mandamus calling for the records in pursuant of the impugned order passed by the 2nd respondent in his proceedings Mo.Mu.No.2890/2014/A7 dated 25.08.2014 and quash the same and consequently direct the 2nd respondent to issue legal heirs certificate of the petitioner's father Late G.Elumalai, who died on 01.11.1998 after completing all formalities.

Facts of the Case:

The case of the petitioner is that his father, R. Raju Naidu died on 22.2.1971 and as on date, the petitioner and his three sisters are the legal heirs of the deceased R. Raju Naidu. According to the petitioner, he applied for legal heirship certificate to the 2nd respondent by application dated 24.11.2008. But, no orders were passed on the same. According to the learned counsel for the petitioner, the petitioner is in need of the legal heirship certificate in order to dispose of a property to arrange the marriage of one of his sisters. Though the application seeking legal heirship certificate submitted to the 2nd respondent along with the relevant documents was forwarded to Revenue Inspector. I for enquiry, the Revenue Inspector-I, without assigning any reasons, declined to conduct an enquiry and consequently, no legal heirship certificate was issued.

Observation & Judgement of Court:

Considering the above submission made by the learned Additional Advocate General, the petitioner is at liberty to make a request for issue of legal heirship certificate to Tahsildar, Tambaram and on receipt of such application, the authority concerned shall consider and pass T.S.SIVAGNANAM, J., AP orders in accordance with the guidelines issued in the manual for Revenue Department.

The writ petition is disposed of accordingly. No costs.

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MADRAS HIGH COURT

K. BUVANESHWARI VS THE TAHSILDAR ON 18 FEBRUARY, 2016 

Summarised Judgement  

Introduction of the Case:

This writ petition has been filed, praying to quash the order passed by the first respondent and consequently, direct the first respondent, to delete the name of the second respondent (Class-II Legal Heir) from the Legal Heirship Certificate of late Kuppusamy and issue a fresh Legal Heirship Certificate of late Kuppusamy, as per Section 8 of the Hindu Succession Act.

Facts of the Case:

The case of the petitioner is that the petitioner got married to the son of the second respondent, viz., Kuppusamy, on 5/6/2010 and started living at Melatheru, Mamangalam Village, Kattumannarkoil Taluk, Cuddalore District. She begot a daughter, aged about 1 = years.

The second respondent, started harassing the petitioner, by way of demanding additional dowry of 50 sovereigns and Three lakhs cash. Since the petitioner's husband died on 15/10/2014, the petitioner had made an application, to the first respondent, on 20/10/2014, for issuance of legal heirship certificate, showing herself and her daughter as the legal heirs, as per Class-I of Section 8 of the Hindu Succession Act. At the time of enquiry, to support her case, the petitioner has produced all the relevant documents for issuance of legal heirship certificate, before the Revenue Inspector of Udayarkudi.

Observation & Judgement of Court:

Considering the submission made by the learned counsel appearing for the petitioner, this Court directs the petitioner, to give a fresh representation, putting forth her grievance, with regard to the deletion of the name of the second respondent, in the legal heirship certificate, within a period of one week, from the date of receipt of a copy of this order and on receipt of the same, the second respondent is directed to conduct enquiry afresh and pass an appropriate order, within a period of four weeks, from the date of receipt of the said representation.

With the above direction, this writ petition is disposed of. No costs. Consequently, the connected Miscellaneous Petition is closed.

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BOMBAY HIGH COURT

SHRI VISHAL S/O UTTAMRAO DESHMUKH VS THE STATE OF MAHARASHTRA AND ... ON 27 JUNE, 2016

Summarised Judgement  

Introduction:

The Petitioner in this petition has specifically challenged the order of issuance of process dated 08.10.2013 by which the learned Magistrate has taken cognizance of Regular Criminal Case No.253/2013 and by a short order of a single paragraph has held that an offence punishable under Sections 193, 417, 418 and 420 of the IPC has been made out.

Facts of the Case:

Petitioner preferred Criminal Revision Application No.4/2014 under Section 397 of the Code of Criminal Procedure before the learned Additional Sessions Judge, Ambajogai on 04.01.2014. By the impugned judgment dated 19.08.2014, the revision petition has been dismissed. The Petitioner has specifically challenged the said judgment *3* 1.cr.wp.1472.14 dated 19.08.2014 in this petition.

Mr. Khandare, learned Advocate appearing on behalf of Respondent No.3 submits that the Petitioner herein had preferred Criminal Application No.5229/2014 before the learned Division Bench of this Court invoking Section 482 of the Code of Criminal Procedure. The prayers below paragraph No.23 in the said petition read as under:-

A. The record and proceeding may kindly be called for.

B. By issuing writ of certiorari or any other appropriate writ, order or directions in the like of nature, the proceedings bearing RCC No.253/2013 pending before the Ld. J.M.F.C. Parli-Vai, Tq. Parli Vai, Dist. Beed may kindly be quashed and set aside as it is abuse of process of law.

C. Pending hearing and final disposal of this Criminal Application, the further proceedings bearing Regular Criminal Case No.253/2013 pending before the Ld. J.M.F.C. Parli-Vai, Tq. Parli-Vai, Dist. Beed may kindly be stayed.

D. Ad-interim relief in terms of prayer clause "C" may kindly be granted in favour of the applicant.

E. Pass such other further order as this Hon'ble Court may deem fit and proper in the peculiar facts and circumstances of the case."

Observation of Court:

These facts, in my view, attract Section 193 of the Indian Penal Code as it deals with a person who intentionally gives false evidence in any stage of the proceedings for the purpose of using the said evidence for gain. Sections 417, 418 and 420 of the Indian Penal Code deal with the offence of cheating, punishment for cheating and attempt by cheating to have any property delivered to any person.

It needs clarification that these observations are at a prima facie stage and would not amount to conclusion of this Court on the merits of the matter considering the fact that the proceedings are still pending before the learned Magistrate.

Judgement:

In the light of the above, this Criminal Writ Petition fails and the same is, therefore, dismissed. Rule is discharged.

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MADRAS HIGH COURT

P.KUPAMMAL VS KESAVAN ON 18 NOVEMBER, 2019

Summarised Judgement  

Facts of the Case:

The case of the plaintiffs is that the property situate at Door No.94, Plot No.429, 7th Cross Street, Trustpuram, Pullyur Village, Kodambakkam, Chennai 600 024 in T.S.No.26, Block No.26 measuring an extent of 880 sq.ft. belonged to them. Originally, the said property was allotted by the Tamil Nadu Slum Clearance Board (in short, “the TNSCB”) to the first plaintiff's father, viz., Ponnan, who died on 01.03.1998, leaving behind his wife Kathayee Ammal and the first plaintiff. After the demise of the said Ponnan, the first plaintiff's mother Kathayee Ammal got a sale deed executed in her favour on 05.08.2005 and registered as Document No.3281 of 2005.

During the life time, the plaintiff's father, Ponnan had put up a hut in an extent of 380 sq.ft in the front portion and a tiled house in an extent of 400 sq.ft. in the rear portion of the suit property and they were living there. The defendant is the nephew of the first plaintiff's father. The said Kathayee Ammal, the mother of the first plaintiff, died on 02.05.2006 leaving behind the sole surviving legal heir, namely, the first plaintiff and she continued to be be in possession of the property.

It is also stated that the first plaintiff, out of love and affection, had settled the entire "A" schedule property in favour of her three children. It is stated by the first plaintiff that during the life time of her father-Ponnan, he had permitted the defendant, who is his nephew, to occupy the front portion of the suit property. Thus, the defendant was in occupation of the front portion of the property measuring an extent of 380 sq.ft, which is described as "B" schedule property in the plaint.

Observation of Court:

In view of the findings rendered qua additional issue No.(i) and (ii), issue No.1 is answered against the defendant holding that the defendant cannot be said to be the absolute owner of an extent of 380 sq. ft. forming part of A schedule property as mentioned the B Schedule property. Thus, this issue is answered in favour of the plaintiffs. Issue Nos.2 to 4:

The first plaintiff became absolute owner of A schedule, which includes B schedule property. Accordingly, the Settlement Deed executed by her in favour of her children, who are arrayed as plaintiffs 2 to 4, is valid and the plaintiffs are entitled to the relief of delivery of vacant possession of B schedule property from the defendant. Thus, issue Nos.2 to 4 are also answered against the defendant favouring the plaintiffs.

Judgement:

In view of the above findings, C.S.No.562 of 2011 is decreed, as prayed for. Consequently, T.O.S.No.25 of 2017 is also decreed as prayed for. As a corollary, T.O.S.No.13 of 2015 is dismissed.

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BOMBAY HIGH COURT

BABAN RAMCHANDRA SHUKLA AND ... VS PARAG ARVIND SHUKLA AND ANOTHER ON 20 MARCH, 2018

Summarised Judgement  

Introduction:

By this review application the applicants seek review of the judgment and order dated 30-06-2017 passed by this Court, whereby Civil Revision Application No.91 of 2016 filed by the applicants was dismissed by the said order and the order dated 2 200318 Judg. mca 1211.17.odt 14-09-2016 passed by the Court of Joint Civil Judge Senior Division, Nagpur stood confirmed, whereby the application for grant of heirship certificate filed by the applicants under the Bombay Regulation VIII of 1827 (hereinafter referred to as the "Regulation") was rejected.

Facts of the Case:

The facts in brief pertaining to the present case are as under:-

One Eknath Ganesh Kasture was the owner of the land bearing Survey No.138 situated at Mouza Patunda, Tah. Nandura, District Buldhana and house bearing No.328 situated at village Alampur, Tah. Nandura. He died in the year 1958, leaving behind his widows Janabai, son Laxman and married daughter Nanibai. Janabai died on 01-12-1981.

She was survived by the two sons by name Arvind and Baban and two daughters by name Nanibai and Malti. Laxman died on 02-12-2009 and his wife Vimal died on 21-07-1992. Arvind, the son of Nanibai, died on 30-12-1998 and his wife Sindhu died on 08-0-2-2004. They were survived by non-applicant no.1 Parag and non- applicant no.2 Sharad. Baban, Nalini, Devki @ Malti, who were the children of Nanibai, are the applicants in this case.

Observation of Court:

It is held that upon confirmation of the finding regarding lack of territorial jurisdiction of the Court at Nagpur regarding the application for grant of heirship certificate filed under the aforesaid Regulation, no further enquiry into the merits of the matter could have been made. Hence, it is held that since the Court at Nagpur does not have jurisdiction to consider the application filed by the applicants herein for grant of heirship certificate under the aforesaid Regulation, the said application is returned to the applicants to be presented before the appropriate Court. Accordingly, this Misc. Civil Application stands allowed.

Judgement:

The order dated 30-06-2017 passed by this Court is set aside, to that extent. Consequently, the Civil Revision Application is partly allowed. The order dated 14-09-2016 passed by the Court of Joint Civil Judge Senior Division, Nagpur in MJC No.279/2011, is set aside to the extent of findings on merits. Since the original record has been received in this Court, the office is directed to return the original application filed by the applicants under the aforesaid Regulation, to be presented before the appropriate Court. If the applicants fail to present the said application before the appropriate Court within a period of 90 days from today, it shall be deemed to be dismissed.

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BOMBAY HIGH COURT

KUSUM CHANDRAKANT SHANKARDAS AND ... VS RAJESHRI CHANDRAKANT SHANKARDAS ... ON 1 NOVEMBER, 2017

Summarised Judgement  

Introduction:

Petitioner no.1 claims to be the widow of the deceased Chandrakant Shantaram Shankardas, while petitioner nos.2 and 3 claim to be the daughters of the deceased through petitioner no.1. The respondents were applicants for heirship rpa 2/14 mpt-32-17.doc certificate in Misc. Petition No.160 of 2015. Respondent no.1 claims to be the wife of the deceased and respondent nos.2 to 4 claim to be his daughters through respondent no.1. The deceased was a retired army officer who died intestate on 14 th August, 2013.

Facts of the Case:

In or about 1969, the marriage of respondent no.1 and the deceased was solemnized at Malvan. It is the case of the petitioners that in the year 1982, respondent no.1 deserted the deceased, ever since when the deceased and respondent no.1 were living separately. It is claimed that eventually, in or about 1983, there was a customary divorce between the deceased and respondent no.1. It is the case of the petitioners that on 25 th May, 1984, the deceased married petitioner no.1 as per Hindu rites and ceremonies. It is claimed that not only did respondent no.1 not object to the marriage, but she herself made arrangements for the same. On 10th November, 1986 and 7th August, 1993, petitioner nos.2 and 3 were, respectively, born from the wedlock between the deceased and petitioner no.1.

Observation of Court:

The petitioners, accordingly, have made out a clear case under Section 390 read with Section 383 (b) of the Indian Succession Act, 1925. The heirship certificate issued in the present case is, in the premises, liable to be revoked. Accordingly, the petition is allowed in terms of prayer clause (a). No order as to costs.

The parties, however, will be at liberty to apply for heirship certificate in future jointly in favour of the respondents and petitioner nos.2 and 3.

Since the main petition itself is disposed of by the present order, the Notice of Motion does not survive and the same is also disposed of.

Judgement:

Learned counsel for the respondents applies for stay of this order. Since the present order is passed after fully hearing the parties and also reserving liberty to apply for a heirship certificate afresh, the prayer is rejected.

In the facts of the case, the respondents cannot be allowed to claim as sole heirs of the deceased to the exclusion of petitioner nos.2 and 3 even for a limited period.

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BOMBAY HIGH COURT

PARVATABAI BEBY WD/O PARASRAM ... VS SUREEKHA @ REKHA WD/O DASHRATH ... ON 13 FEBRUARY, 2019

Summarised Judgement  

Introduction:

By this writ petition, the petitioner has challenged order dated 18/06/2018 passed by the Court of 11 th Joint Civil Judge Senior Division, Nagpur (Trial Court) in M.J.C. No.192 of 2017, whereby application filed by the petitioners below Exhibit- 18 for dismissal of the proceedings initiated by the respondent herein, was rejected.

Facts of the Case:

The facts leading to filing of the present writ petition are that the petitioners had filed an application for grant of legal heirship certificate under Bombay Regulation VIII of 1827 (hereinafter referred to "Regulation"). The said application was granted by the Court of Civil Judge, Junior Division, Nagpur by judgment and order dated 13/06/2017. An application was filed KHUNTE WP5447.18-Judgment 3/18 by the respondent on 02/03/2017 under the very same Regulation for grant of legal heirship certificate wherein the petitioners were made parties as non-applicants.

The respondent specifically described certain properties in the said application and a declaration was sought to the effect that the respondent was legal heir of deceased Parasram Fakira More. It is not in dispute that the legal heirship certificate already granted in favour of the petitioners also pertained to the said deceased Parasram Fakira More.

Observation & Judgement of Court:

Accordingly, the impugned order is quashed and set aside and the present writ petition is allowed. Consequently, the application below Exhibit-18 filed by the petitioner is allowed and KHUNTE WP5447.18-Judgment 18/18 the proceeding initiated by the respondent i.e. M.J.C. No.192 of 2017 before the Court below stands dismissed.

Rule is made absolute in the above terms. No costs

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AS - 29122019