In Nagulapati Lakshmamma v. Mupparaju Subbaiah, (1998) 5 SCC 285, after referring to Section 63 of the Indian Succession Act, 1925 it was held as under: “The section makes a vital distinction between the testator and the attestors in the matter of signing the Will. The testator may sign or affix his mark himself or direct some other person to sign in his presence. The reason for such a provision is quite obvious. Many a time, people who are desirous of making testamentary dispositions may be physically incapacitated from signing their names or affixing their marks on account of illness or other causes. Such persons should not be deprived of an opportunity of making a Will. Such persons can instead of signing or affixing their marks themselves can direct some other person to sign in their presence. But in the case of attestors such an enabling provision is absent. The section expressly states that each of the witnesses shall sign the Will in the presence of the testator. The privilege or power of delegation, if we may say so, is not available to the attesting witnesses under the section. When the same section makes a distinction expressly between a testator and an attestor it is not possible to accept the contention that an attestor can also direct some other person to sign or make a mark on his behalf. If a witness to the execution of the Will chooses to do so, he is not an attesting witness as there is no attestation by him as contemplated by Section 63(c) of the Indian Succession Act. Consequently, he will not be an attesting witness for the purpose of Section 68 of the Indian Evidence Act. Laxmi Kant v. Smt. Ganga Devi, 2018 (5) AWC 5141.
Monthly Archives: April 2020
A Residents Welfare Society is not a co-operative society and, therefore, the law laid down by the Hon’ble Apex Court in Vipulbhai M. Chaudhary v. Gujarat Co-operative Milk Marketing Federation Ltd., (2015) 8 SCC 1, would not be squarely applicable to it. Otherwise, a member elected as an office bearer of a society cannot be removed from office by way of no confidence in absence of a specific provision in that regard by taking recourse to democratic principles. Because the general principle that the authority which has power to appoint has power to remove is not applicable to elected representatives.
In Mohan Lal Tripathi v. District Magistrate, (1992) 4 SCC 80 it was held as under: “Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly. But electing representatives to govern is neither a fundamental right nor a common law right but a special right created by the statutes, or a political right or privilege and not a natural, absolute or vested right. Concepts familiar to common law and equity must remain strangers to Election Law unless statutorily embodied. Right to remove an elected representative too, must stem out of the statute as in the absence of a Constitutional restriction it is within the power of a Legislature to enact a law for the recall of officers. Its existence or validity can be decided on the provision of the Act and not as a matter of policy. Sudha Srivatsava v. Registrar, Firms, Societies and Chits, 2018 (5 ) AWC 5160.
In sub-section (1) of Section 16 of the Hindu Marriage Act, the Legislature has stipulated that a child born from a marriage which is null and void under Section 11 of the Hindu Marriage Act is legitimate, regardless of whether the birth has taken place before or after the commencement of the Amending Act No. 68 of 1976. Legitimacy of a child born from a marriage which is null and void, is a matter of public policy so as to protect a child born from such a marriage from suffering the consequences of illegitimacy. Hence, though the marriage may be null and void, a child who is born from the marriage is nonetheless treated as legitimate by sub-section (1) of Section 16 of the Hindu Marriage Act. One of the grounds on which a marriage is null and void under Section 11 read with clause (i) of Section 5 is that the marriage has been contracted when one of the parties had a spouse living at the time of marriage. A second marriage contracted by a Hindu during the subsistence of the first marriage is, therefore, null and void. However, the Legislature has stepped in by enacting Section 16(1) to protect the legitimacy of a child from such a marriage. Sub-section (3) of Section 16, however, stipulates that such a child who is born from a marriage which is null and void, will have a right in the property only of the parents and none other than the parents. Union of India v. V.R. Tripathi, (2019) 1 UPLBEC 28.
In the case of Sumitra Devi vs. Sampuran Singh (2011) 3 SCC 556, which has been relied upon by learned Senior Counsel for the Appellant, this Court has held that “it will all depend on the facts of each case whether the presumption of service of notice sent under postal certificate should be drawn. It is true that as observed by the Privy Council in its above referred judgment, the presumption would apply with greater force to letters which are sent by registered post, yet, when facts so justify, such presumption is expected to be drawn even in the case of a letter sent under postal certificate.” Considering the facts and circumstances of that case, this Court held the notice sent under certificate of posting to be sufficient service. In the case of Ranju vs. Rekha Ghosh (2007) 14 SCC 81, this court was considering a case where one month’s notice was to be given to the tenant for eviction. After considering the provisions of the relevant Tenancy Act, Transfer of Property Act and the Bengal General Clauses Act, it was held that “clause (6) provides mere “one month’s notice”; in such event, the said notice can be served in any manner and it cannot be claimed that the same should be served only by registered post with acknowledgement due.” In the facts of that case, it was held that service of notice sent under certificate of posting was sufficient. Similar is the case at hand, where the Act provides for that ‘the landlord has given a notice…’, without specifying the mode of such notice, and in the facts of the present case, notice sent under postal certificate has rightly been held to be proper service. While considering a case of service of notice under the Companies Act, this Court, in the case of V.S. Krishnan vs. Westfort HiTech Hospitals (2008) 3 SCC 363, has held that service of notice sent under certificate of posting would be sufficient where “there are materials to show that notices were sent, the burden is on the addressee to rebut the statutory presumption.”
From the perusal of the aforesaid Proviso to the Section 21(1) (b) of Uttar Pradesh (Regulation of Letting, Rent and Eviction) Act, 1972, it is clear that no particular mode of giving notice by the landlord to the tenant has been provided for, meaning thereby that the same could be given orally or in writing; and if in writing, it is not necessary that it should be sent only by registered post. What is required is that “the landlord has given a notice in that behalf to the tenant”. Mohd. Asif Naseer v. West Watch Company, Civil Appeal No. 2375 of 2020 (Arising Out of SLP (C) No. 29649 of 2016).
In Shyamdeo Prasad Singh v. Naval Kishore Yadav, (2000) 8 SCC 46 as well as various other Judgments of the Hon’ble Apex Court the principle of law restraining the courts from interfering in the process of election after the elections are notified is equally applicable to the elections of the office bearers of the committee of management of the societies as well as the Committee of Management to be elected in accordance with the provisions of the scheme of administration of the educational institutions. The principles of law that the courts should keep their hand off in electoral matters and that all election disputes must be tries by the Election Tribunal, is also incorporated in the Constitution of India under Article 329 (b) of the elections of the Parliament or to the house or either house of the legislature, under Article 243 O for the elections of Panchayats and Article 243 ZG in the matter of elections of the municipalities. There is no reason as to why these time tested and settled principles should not be made applicable to the elections of the office bearers of the societies and for the Committee of Management under the scheme of administration of the educational institutions.
In West Bengal State Election Commission v. Communist Party of India (Marxist), AIR 2018 SC 3964, it was held as under:
“Thirdly, once the election process has commenced, it is trite law that it should not be interdicted mid stage. The electoral process is afforded sanctity in a democracy. That is the reason why in a consistent line of precedent, this court has insisted upon the discipline of the law being followed so that any challenge to the validity of an election has to be addressed by adopting the remedy of an election petition under the governing statute.” Kamlapati Singh v. State of U.P., (2019) 3 UPLBEC 1759.