Ajay Singh
Advocate

1. Right of child in womb in joint family property: Hindu law

A child in the womb is entitled to for a share in coparcenary property of an undivided Hindu joint family. The child is entitled for a share in the joint family property when born alive and not otherwise. On behalf of the child in the womb no partition suit is maintainable. In case of a partition of the joint family property by the father amongst his sons, even a son born after a partition arrangement can challenge the partition if the father has not retained separate share for himself exclusively. In a partition if a share is allotted to the father, a son begotten to the father, or born after the partition is not entitled to have the partition reopened and to claim redistribution of the shares. But a child begotten after partition is entitled to successed to the father’s share and to his separate or self acquired property to the exclusion of divided sons.

M.S. Subbukrishna & Ors etc. vs. Smt. Parvathi & Anr. etc. 2007 (6) AIR Kar R. 169

2. Determination of age: General clauses Act, 1897, sections 9 & 10

A person attains a specified age on the day next before the anniversary of his birthday or in other words, on the day preceding that anniversary. However, the common law rules in this regard has been abrogated by the (UK) Family Law Reform Act, 1969. The effect of the change is that, in respect of anniversaries failing after 1-1-1970, the time at which a person attains a particular age expressed in years is the commencement of relevant anniversary of the date of his birth. However India does not have such statute. The age in India therefore has to be determined either according to relevant provision and in its absence, by common law principle.

Achhaibar Maurya vs. State of Uttar Pradesh & Ors. (2008) 2 SCC 639

3. Denial of right to co-sharer to enjoy joint family property. Criminal proceedings cannot be undertaken, remedy available under civil law

The appellant and respondent No. 4 brothers and co-sharers of some properties. The appellant allegedly came to Chandigarh to reside in the family house sometimes in 2001. He allegedly kept his belongings there and came back to Delhi.

In 2002, when he came to Chandigarh, he was allegedly restrained by his brother from entering into the house. His complaint to the Police Station was not recorded. First Information Report, was not registered.

He filed an application under section 482 of the Code of Criminal Procedure before the Punjab and Haryana High Court. The said application was dismissed by reasons of being a family dispute.

On further appeal the Hon’ble Punjab & Haryana High Court held that right of a co-sharer to enjoy the joint family property is a civil right. Such a right, if denied by the other co-sharers for one reason or the other, must be enforced by taking recourse to the remedies available under the civil laws. Criminal proceedings, cannot be taken recourse to for enforcing such a civil right.

Rajinder Singh Katoch vs. Chandigarh Administration & Ors AIR 2008 SC 178

4. Laptop/notebook computer is not the same a desktop computer or miscromputer: Customs tariff

The question arose before the Supreme Court was, whether notebook computers (laptop computers) amounted to a “CPU with monitor, mouse and keyboard imported together as a set.”

The Hon’ble Supreme Court observed that the traditional desktops, computers and monitors are known differently in commercial parlance. A desktop computer is a combination of a CPU with monitor, mouse and keyboard imported together as a set. What is, thus, covered by the above is a set of items brought together and capable of being put together to make a computer. A notebook computer, on the other hand, comes in an integrated and inseparable form. It is, as such, not a combination of CPU, monitor, mouse and keyboard. A set although in view of the dictionary meaning may mean a complete apparatus but it should consists of more than one item, each complementing the work of another and retaining their individual identity all the time. Whereas desktop computers comprising of a CPU with all the aforementioned accessories do not lose their individual identities and not only are marketable as separate items but are also used separately, a laptop computer cannot be said to be a set of the said parts.

A microcomputer is also known as a desktop computer. It is thus, evident that in common parlance a desktop or a microcomputer is different from a laptop or PDA. The distinction between a laptop and a desktop computer would further be evident from the history thereof as traced in Wikipedia.

Wikipedia is an online Encyclopaedia and information can be entered therein by any person and as such it may not be authentic. However, it is not disputed that a laptop and a desktop are differently known in commercial parlance. Therefore, a laptop or a notebook being an integrated item cannot be said to be a set of a CPU with monitor, mouse and keyboard. Hence the two items are totally different though capable of performing same or similar functions, but one cannot be mistaken for the other.

Commissioner of Customs, Bangalore vs. Acer India (P) Ltd. 2008 (1) SCC 382

5. Recovery of dues

The Petitioners are son and wife of one

Mr. Ghouse Mohiddin who was declared as a revenue defaulter. The Petitioners house were attached by the respondents for recovery of the amount payable by the revenue defaulter under the Andhra Pradesh Revenue Recovery Act, 1864.

According to the wife and son they had purchased the houses under registered sale deed from their own income and therefore the same cannot be attached for the alleged amount due by the revenue defaulter (Mr. Ghouse Mohiddin)

The Revenue Officer issued notice of attachment and took steps to put the said house to auction for realization of the amount alleged to have been misappropriated by Mr. Ghouse Mohiddin.

The Hon’ble Andhra Pradesh High Court held that for recovery of the amount due by Mr. Ghouse Mohiddin, the revenue defaulter, who worked as Sub Treasury Officer, enquiries were made to know the immovable properties, if any, held by him. During the course of enquiry, it was revealed that the said houses were standing in the name of his son and wife and that the said properties were procured by the defaulter and got registered in the name of his wife and son when they were living together jointly. Hence, the said properties were attached for recovery of the amount due by the default. It is nowhere stated that the said properties were purchased in the name of the son and wife of the revenue defaulter from out of the amount misappropriated by him or from his own amount. Therefore, the same cannot be treated as the properties held by the revenue defaulter. Any reasoned order as such is not passed to enable the petitioners to challenge the same before the appropriate forum as contemplated under sec. 59 of the Act.

In the absence of such reasoned order, mere enquiry conducted by the authorities unilaterally and coming to a conclusion that the properties owned by the petitioners were purchased by the revenue defaulter, cannot enure to the benefit of the revenue authorizing them to attach the said properties without following the due procedure. Unless the respondents obtain necessary declaration from the competent court that the said properties were purchased by the revenue defaulter in the name of the petitioner’s benami, they cannot proceed with the attachment of the properties.

Admittedly, the petitioners were not the revenue defaulters. Therefore, their properties could not be a subject matter of adjudication or sale, without determining their liability to pay the said amount or that the said properties were purchased by the revenue defaulter in their name benami, accordingly order quashed.
Taherunnisa Begum vs. District Collector, Cuddapah District & Anr AIR 2008 AP 11