Benami Transaction – Determination of

In the case of Thakur Bhim Singh  v. Thakur Kan Singh, (1980) 3 SCC 72,  the Hon’ble Apex Court held as under:

“The principle governing the determination of the question whether a transfer is a benami transaction or not may be summed up thus: (1) the burden of showing that a transfer is a benami transaction lies on the person who asserts that it is such a transaction; (2) it is proved that the purchase money came from a person other than the person in whose favour the property is transferred, the purchase is prima facie assumed to be for the benefit of the person who supplied the purchase money, unless there is evidence to the contrary; (3) the true character of the transaction is governed by the intention of the person who has contributed the purchase money and (4) the question as to what his intention was has to be decided on the basis of the surrounding circumstances, the relationship of the parties, the motives governing their action in bringing about the transaction and their subsequent conduct, etc.”

In the case of P. Leelavathi  v.  Shankarnarayana Rao, (2019) 6 Scale 112,  the Hon’ble Apex Court held as under:

“ In Binapani Paul  v.  Pratima Ghosh, (2007) 6 SCC 100, the Hon’ble Court again had an occasion to consider the nature of benami transactions. After considering a catena of decisions of the Court on the point, the Court in that judgment observed and held that the source of money had never been the sole consideration. It is merely one of the relevant considerations but not determinative in character. It was ultimately concluded after considering its earlier judgment in the case of Valliammal v. Subramaniam (2004) 7 SCC 233 that while considering whether a particular transaction is benami in nature, the following six circumstances can be taken as a guide:

“(1) the source from which the purchase money came;

(2) the nature and possession of the property, after the purchase;

(3) motive, if any, for giving the transaction a benami colour;

(4) the position of the parties and the relationship, if any, between the claimant and the alleged benamidar;

(5) the custody of the title deeds after the sale; and

(6) the conduct of the parties concerned in dealing with the property after the sale. Mangathai Ammal (Died) through LRs  v. Rajeswari, 2019 (3) AWC 3009.

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Trade Union – Falls within the Definition of Person Under IBC

A trade union is certainly an entity established under a statute – namely, the Trade Unions Act and would therefore fall within the definition of “person” under Section 3(23) of the Insolvency and Bankruptcy Code. That being so, it is clear that an “operational debt”, meaning a claim in respect of employment, could certainly be made by a person duly authorized to make such claim on behalf of a worman. Rule 6, Form 5 of the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016 also recognizes the fact that claims may be made not only in an individual capacity, but also conjointly. Further, a registered trade union recognized by Section 8 of the Trade Unions Act, makes it clear that it can sue and be sued by a body corporate under Section 13 of that Act. Equally, the general fund of the trade union, which inter alia is from collections from workmen who are its members, can certainly be spent on the conduct of disputes involving a member or members thereof or for the prosecution of a legal proceeding to which the trade union is a party, and which is undertaken for the purpose of protecting the rights arising out of the relation of its members with their employer, which would include wages and other sums due from the employer to workmen. J.K. Jute Mill Mazdoor Morcha v. Juggilal Kamlapat Jute Mills Co. Ltd., 2019 (4) AWC 3160.

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Parity in Pay Scales – Equation of Posts

Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts, it was held in SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122,  as under:

“the law on the issue can be summarised to the effect that parity of pay can be claimed by invoking the provisions of Articles 14 and 39(d) of the Constitution of India by establishing that the eligibility, mode of selection/recruitment, nature and quality of work and duties and effort, reliability, confidentiality, dexterity, functional need and responsibilities and status of both the posts are identical. The functions may be the same but the skills and responsibilities may be really and substantially different. The other post may not require any higher qualification, seniority or other like factors. Granting parity in pay scales depends upon the comparative evaluation of job and equation of posts. The person claiming parity must plead necessary averments and prove that all things are equal between the posts concerned. Such a complex issue cannot be adjudicated by evaluating the affidavits filed by the parties.”

 It was held in Union of India v. P.K. Roy, AIR 1968 SC 850 that the following factors had been held to be determinative for considering the equation of posts,:

1. The nature and duties of a post;

2. The responsibilities and powers exercised by the officer holding a post, the extent of territorial or other charge held or responsibilities discharged;

3. The minimum qualifications, if any, prescribed for recruitment to the post; and

4. The salary of the post.

After referring to Union of India v. P.K. Roy, AIR 1968 SC 850,  the Hon’ble Apex Court, in  SAIL v. Dibyendu Bhattacharya, (2011) 11 SCC 122, held as under:

25. In  State of Maharashtra v. Chandrakant Anant Kulkarni, (1981) 4 SCC 130 and  L.N. Mithila University v. Dayanand Jha, (1986) 3 SCC 7, a similar view has been reiterated observing that equal status and nature and responsibilities of the duties attached to the two posts have to be taken into consideration for equivalence of the post. Similar view has been reiterated in  E.P. Royappa v. State of T.N., (1974) 4 SCC 3 Rooplal v. Lt. Governor, (2000) 1 SCC 644, wherein the Hon’ble Apex Court following the earlier judgment in  Union of India v. P.K. Roy, AIR 1968 SC 850 held that the salary of the post alone may not be a determining factor, the other three criteria should also be fulfilled.” Punjab SEB v. Thana Singh, (2019) 4 SCC 113.

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Conditions of Service – Governed by Statute

In the cases where the appointment and conditions of service are governed by statute, the relationship is that of status and not merely a contract. However, in other cases, it is purely a contract of service resulting in a relationship of ordinary master and servant. In such cases, where the contract of service is not governed by statutory provisions, it is well settled that contract of service cannot be enforced by seeking reinstatement or continuance in employment since such a relief is barred under the Specific Relief Act. In Executive Committee of U.P. State Warehousing Corporation v. C.K. Tyagi, AIR 1970 SC 1244 it was held as under:

        “Under the common law the court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the courts in an appropriate case to declare that a public servant who is dismissed from service in contravention of Article 311 continues to remain in service, even though by doing so the State is in effect forced to continue to employ the servant whom it does not desire to employ. Similarly under the Industrial Law, jurisdiction of the Labour and Industrial Tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognized. The courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act, the body has acted in breach of a mandatory obligation imposed by statute.

        The position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognized exceptions to this rule and they are: to grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311 (2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A staturoy body when it has acted in breach of a mandatory obligation, imposed by statute.” Ram Prasad v. State of U.P., 2019 (135) ALR 1.

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Daughter – Coparcener by Birth

The law relating to a Joint Hindu Family governed by the Mitakshara law has undergone unprecedented changes. The said changes have been brought forward to address the growing need to merit equal treatment to the nearest female relatives, namely, daughters of a coparcener. The section stipulates that a daughter would be a coparcener from her birth, and would have the same rights and liabilities as that of a son. The daughter would hold property to which she is entitled as a coparcenary property, which would be construed as property being capable of being disposed of by her either by a will or any other testamentary disposition. These changes have been sought to be made on the touchstone of equality, thus seeking to remove the perceived disability and prejudice to which a daughter was subjected. The fundamental changes brought forward about in the Hindu Succession Act, 1956 by amending it in 2005, are perhaps a realisation of the immortal words of Roscoe Pound as appearing in his celebrated treaties, The Ideal Element in Law, that “the law must be stable and yet it cannot stand still. Hence all thinking about law has struggled to reconcile the conflicting demands of the need of stability and the need of change”.

Section 6 of the Hindu Succession Act, as amended, stipulates that on and from the commencement of the amended Act, 2005, the daughter of a coparcener shall by birth become a coparcener in her own right in the same manner as the son. It is apparent that the status conferred upon sons under the old section and the old Hindu Law was to treat them as coparceners since birth. The amended provision now statutorily recognises the rights of coparceners of daughters as well since birth. The section uses the words in the same manner as the son. It should therefore be apparent that both the sons and the daughters of a coparcener have been conferred the right of becoming coparceners by birth. It is the very factum of birth in a coparcenary that creates the coparcenary, therefore the sons and daughters of a coparcener become coparceners by virtue of birth. Devolution of coparcenary property is the later stage of and a consequence of death of a coparcener. The first stage of a coparcenary is obviously its creation and is well recognised. One of the incidents of coparcenary is the right of a coparcener to seek a severance of status. Hence, the rights of coparceners emanate and flow from birth (now including daughters) as is evident from sub-sections (1)(a) and (b). Danamma v. Amar, (2018) 3 SCC 343

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Back Wages – Conduct of Concerned Workman

The Hon’ble Supreme Court in Novartis India Ltd. v. State of West Bengal, reported in (2009) 3 SCC 124, has held that merely because the dismissal from service has been held to be illegal would not result in automatic payment of back wages and the conduct of the concerned workman would also have to be examined. It was held as under:

            “There can, however, be no doubt whatsoever that there has been a shift in the approach of the Court in regard to payment of back wages. Back wages cannot be granted almost automatically upon setting aside an order of termination inter alia on the premises that the burden to show that the workman was gainfully employed during interregnum period was on the employer. The burden of proof that he remained unemployed would be on the workman keeping in view the provisions contained in Section 106 of the Evidence Act, 1872. The Hon’ble Court in the matter of grant of back wages has laid down certain guidelines stating that therefor several factors are required to be considered including the nature of appointment; the mode of recruitment; the length of service; and whether the appointment was in consonance with Articles 14 and 16 of the Constitution of India in cases of public employment etc.

            It is also trite that for the purpose of grant of back wages, conduct of the concerned workman also plays a vital role. Each decision, as regards grant of back wages or the quantum thereof, would, therefore, depend on the fact of each case. Back wages are ordinarily to be granted, keeping in view the principles of grant of damages in mind. It cannot be claimed as a matter of right. M/s Rathi Udyog Ltd. v. Presiding Officer, (2019) 2 UPLBEC 1093.

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Self Acquired Property – Character of Joint Family Property

The law on the aspect of blending is well settled that property separate or self acquired of a member of a joint Hindu family may be impressed with the character of joint family property if it is voluntarily thrown by the owner into the common stock with the intention of abandoning his separate claim therein; but to establish such abandonment, a clear intention to waive separate rights must be established. Clear intention to abandon separate rights in the property must be proved. Even abandonment cannot be inferred from mere allowing other family members also to use the property or utilization of income of the separate property out of generosity to support the family members. S. Subramanian v. S. Ramasamay, (2019) 6 SCC 46.

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