Supreme Court Weekly Round-Up

The Supreme Court held that there is no legal bar on cognatic heirs of the waqif from succeeding to mutawalliship. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi reiterated that in order to establish a claim of hereditary succession to mutawalli-ship, the intention of the waqif, as manifested either through the directions given in the waqf deed or the creation of a custom, is of paramount importance.

Female Descendant Cannot Be Mutawalli If Wakif Intended To Exclude Them [Syeda Nazira Khatoon (D) vs. Syed Zahiruddin Ahmed Baghdadi]

The Supreme Court observed that, though women can also hold the office of Mutawalli under Mohammedan law, but if the wakif intended to create the Mutawalliship only in favour of male descendants, a female descendant cannot stake any claim to the Mutawalliship of the wakf estate. The bench comprising Justice NV Ramana, Justice Mohan M. Shantanagoudar and Justice Ajay Rastogi observed thus while affirming the cancellation of the appointment of one NaziraKhatoon as the permanent Mutawalli of a wakf estate.

Specific Performance- Illegal Agreement To Sell Can't Be Enforced In Favour Of Plaintiff [Narayanamma vs. Govindappa]

The Supreme Court observed that an agreement contrary to law cannot be enforced by the court in favour of plaintiff in a suit for specific performance, even if the defendant, who was also party to such illegality stands benefitted by it.

Police Cannot Attach Immovable Property Under Sec.102 CrPC During Investigation [Nevada Properties Private Limited V. State Of Maharashtra And Anr]

The Supreme Court held that police does not have the power to attach immovable property during investigation under Section 102 of the Code of Criminal Procedure. The judgment was delivered by the bench comprising CJI RanjanGogoi, Justices Deepak Gupta and Sanjiv Khanna. However, police does have authority to freeze moveable properties of the accused, clarified the bench.

Crucial Date For Deciding Bonafide Requirement Of Landlord Is The Date Of Application For Eviction [D. Sasi Kumar vs. Soundararajan]

The crucial date for deciding the bonafide requirement of landlord is the date of application for eviction, the Supreme Court reiterated. The High Court, in this case, while setting aside the concurrent eviction orders passed by Rent Control Authorities under, had observed that the bonafide occupation as sought should be not only on the date of the petition but it should continue to be there on the date of final adjudication of rights.

Section 34 Arbitration Act- Additional Evidence Can Be Adduced Only In Exceptional Cases [Canara Nidhi Limited vs. M. Shashikala]

The Supreme Court held that proceedings under Section 34 of Arbitration and Conciliation Act will not ordinarily require anything beyond the record that was before the arbitrator and only in exceptional case, additional evidence can be permitted to be adduced. The bench comprising Justice R. Banumathi and Justice AS Bopanna was considering an appeal against a High Court order which grant opportunity to a party to Section 34 Proceedings to adduce additional evidence.

Chief Judicial Magistrates Competent To Entertain Applications U/s 14 SARFAESI Act[Authorized Officer, Indian Bank v D Visalakshi and other]

In an important judgment, the Supreme Court held that a Chief Judicial Magistrate is equally competent to deal with the application moved by the secured creditor under Section 14 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act (SARFAESI).

Section 138 NI Act: Legal Heirs Of Deceased Convict Can Challenge Conviction [M. Abbas Haji vs. T.N. Channakeshava]

The Supreme Court held that legal heirs of a deceased accused convicted under Section 138 of Negotiable Instrument Act have a right to challenge the conviction of their predecessor only to show that he was not guilty of any offence.

Donee Not Required To Examine Attesting Witness If There Is No Specific Denial Of Execution Of Gift [GovindbhaiChhotabhai Patel vs. Patel RamanbhaiMathurbhai]

The Supreme Court held that, when the execution of the gift deed was not specifically denied in the suit filed, it is not necessary for the Donee to examine one of the attesting witnesses in terms of proviso to Section 68 of the Indian Evidence Act, 1872.

Section 102 CrPC- Expression 'Any Property' Does Not Include 'Immovable Property' [Nevada Properties Private Limited Vs. State Of Maharashtra]

The Supreme Court held that the expression 'any property' appearing in Section 102 of the Code of Criminal Procedure would not include 'immovable property'. The bench comprising Chief Justice Ranjan Gogoi, Justice Deepak Gupta and Justice Sanjiv Khanna observed thus while holding that a power of a police officer under Section 102 of the Criminal Procedure Code to seize any property, which may be found under circumstances that create suspicion of the commission of any offence, would not include the power to attach, seize and seal an immovable property.

IBC- Article 137 Limitation Act Applies To Section 7 Applications; Not Article 62 [Gaurav Hargovindbhai Dave Vs. Asset Reconstruction Company (India) Ltd.]

The Supreme Court held that Article 62 of the Limitation Act would only apply to suits and not to "an application" which is filed under Section 7 of the Insolvency and Bankruptcy Code, which would fall only within the residuary Article 137.

Rent Controller's Power To Strike Out Defence Of Tenant On Failure To Pay Rent Is Discretionary [Dina Nath (D ) vs. Subhash Chand Saini]

The Supreme Court held that the power to strike out the defence vested in the Rent Controller under Section 15(7) of the Delhi Rent Control Act, 1958 is discretionary and not mandatory. Mere failure to pay rent on the part of the tenant is not enough to justify an order striking out the defence and it is only a wilful failure or deliberate default or volitional of non-performance that can call for the exercise of the extraordinary power vested in the Court, the bench comprising Justice Arun Mishra, Justice MR Shah and Justice Ajay Rastogi held.

Father's Self Acquired Property Given To Son By Will/Gift Retains Character Of Self Acquired Property Unless The Deed Intends Otherwise [GovindbhaiChhotabhai Patel and ors v Patel RamanbhaiMathurbhai]

The Supreme Court held that as per Mitakshara Law of Succession, father's self-acquired property given to son by way of Will/gift will retain the character of self acquired property and will not become ancestral property, unless a contrary intention is expressed in the testament.The bench comprising Justices L Nageswara Rao and Hemant Gupta was dealing with an appeal from the High Court of Gujarat.

Right Of Minority Educational Institutions Not Absolute; Are Amenable To Regulations [Andhra Kesari College of Education &Anr V. State of Andhra Pradesh &Ors]

While turning down the plea challenging certain G.O.Ms issued by Government of Andhra Pradesh, the Supreme Court observed that the right of minority institutions is not absolute, and is amenable to regulation and that the protection granted to Minority Educational Institutions to admit students of their choice is subject to reasonable restrictions.

Medium Of Instruction Of School Irrelevant To Discover Whether It Is A Linguistic Minority Institution Or Not [Chandana Das (Malakar) v. State of West Bengalwhile]

The Supreme Court observed that the medium of instruction, whether it be Hindi, English, Bengali or some other language would be wholly irrelevant to discover as to whether the said school was founded by a linguistic minority for the purpose of imparting education to members of its community. The bench comprising Justice Rohinton Fali Nariman, Justice R. Subhash Reddy and Justice Surya Kant made this observation answering reference made to it after a division bench delivered split verdict in an appeal against the judgment of Calcutta High Court.

Date Of Default Alone Is Relevant For Triggering Limitation For Winding Up Petition: SC Dismisses IL&FS Petition Against La-Fin [Jignesh Shah &Anr. V. Union of India]

The Supreme Court held that the the date of default alone is relevant for the limitation of filing of a winding up petition against a company. It cannot be said that the limitation period will start only after the company has gone into commercial insolvency or has lost the substratum of its business, added the Court.

Fundamental Right Of Minorities To Administer Educational Institutions Cannot Be Waived [Chandana Das (Malakar) v. State of West Bengal]

The Supreme Court reiterated that the fundamental right of Minorities under Article 30 of the Constitution of India to administer educational institutions cannot be waived. The bench comprising Justice RF Nariman, Justice R.Subhash Reddy and Justice Surya Kant was answering a reference which arose out of a split judgment by division bench (Justice TS Thakur and Justice R Banumathi) in which one of the judges (Justice Banumathi) held that the school having accepted the special constitution in terms of Rule 8(3) of the Rules, the school is estopped from contending that it is a minority institution governed by special rules to be framed by the State under Rule 33 of the Rules.

Concession In Law Made By Lawyer Not Binding On Client[Director Of Elementary Education,

Odisha &Ors. V. Pramod Kumar Sahoo]

The Supreme Court observed that concession by a counsel (lawyer) as to matters of law before a Court is not binding on the client. In this case, Odisha Administrative Tribunal had allowed an application filed by Pramod Kumar Sahoo, a Teacher. In his OA, the applicant had claimed that he is entitled to pay scale of Rs.840 to Rs.1240 from the very day of his appointment and pay scale of Rs. 1080-1800 after Orissa Revised Scales of Pay Rules, 1989 as amended in the year 1990.

A Plaintiff Can Claim Title To The Property Based On Adverse Possession [Krishnamurthy S. Setlur (D) vs. O. V. NarasimhaSetty (D)]

A plaintiff can claim title to the property based on adverse possession, the Supreme Court reiterated. In this case, the appeal arose from a suit filed by a plaintiff who claimed that he was in possession of the land from 1963 to 1981 claiming ownership as against defendant and that his possession had matured into title.

Witnesses To Sale Deed/Will Need Not Necessarily Know Its Contents[Hemkunwar Bai vs. Sumersingh]

The Supreme Court observed that the witnesses to documents such as Sale Deeds and Wills need not necessarily know what is contained in them. The plaintiff in the suit had prayed for a declaration that she be declared to be the owner in possession of the suit property and also prayed that the defendants be injuncted from interfering in her possession. It was contended that the two sale-deeds and the Will in favour of defendants are sham and fraudulent documents and not binding upon her. The Trial Court decreed the Suit. However, the High court dismissed the Suit allowing the appeal filed by the defendants.

Issue Of Invalidity Of Sanction To Be Raised During Trial, Not At Stage Of Discharge Application [Central Bureau of Investigation (CBI) Vs. Pramila Virendra Kumar Agarwal]

The Supreme Court held that though the absence of sanction can be agitated during stage of discharge application, but the issue of invalidity of the sanction is to be raised during the trial.

NDPS Act - Non Production Of Entire Contraband By Itself Not A Ground For Acquittal [State of Rajasthan V. Sahi Ram]

The Supreme Court held that non-production of contraband material, by itself, is not a ground for acquittal, if its seizure is otherwise proved. On this ground, the bench of Justices U ULalit and Vineet Saran set aside the acquittal ordered by the High Court in a case under Narcotic Drugs and Psychotropic Substances Act 1985.

[Exception 4 To Section 300 IPC] Accused Party Armed With Weapons Can't Claim the Benefit Of Sudden Fight [Guru @ Gurubaran vs. State]

The Supreme Court observed that when the accused party came armed at the scene of crime, it clearly indicates that the occurrence did not take place in the heat of passion, upon a sudden quarrel to claim the exception 4 to Section 300 IPC. In this appeal the contention of the accused convicted for murder was that the offence was not of murder but may amount to culpable homicide not amounting to murder and that the case would fall within Exception 4 to Section 300 IPC.

Is A Wife Divorced By Husband On Ground Of Desertion Entitled To Maintenance ? SC Answers [Dr.Swapan Kumar Banerjee vs. State of WB]

The Supreme Court observed that a wife, who has been divorced by the husband, on the ground that the wife has deserted him, is entitled to claim maintenance under Section 125 of the Code of Criminal Procedure. The bench comprising Justice Deepak Gupta and Justice Aniruddha Bose, refusing the plea to refer this issue to a larger bench, observed that this view has been consistently taken by the Supreme Court and is in line with both the letter and spirit of the Criminal Procedure Code.

• Higher Courts should not stay an order of maintenance unless there are very special reasons, the Supreme Court has observed.
• Directed the Central Government to file an affidavit regarding framing of guidelines to prevent misuse of social media by balancing the interests of online privacy and state sovereignty. Concerns of national security are also to be kept in mind, added the bench of Justices Deepak Gupta and Aniruddha Bose.
• Dismissed the writ petition filed by a resident in the neighbourhood of Maradu flats in Kochi, which had expressed concerns of 'collateral damage' to the area that might be caused if the demolition is carried out without proper planning and assessment.
• ordered the Kerala Government to pay interim compensation of Rs 25 lakhs to each apartment owner within four weeks. The amount will be recoverable from the builders who erected the illegal structures flouting the Coastal Zone Regulations, added the Court.
• The Supreme Court Bench headed by Justice Deepak Gupta asked a Gujarat based jeweller, who accused Gitanjali Gems promoter MehulChoksi of cheating him in his business, to publish the court's notice in newspapers and also to affix the copy at Choksi's last known address in Mumbai.
• Set up a Constitution Bench comprising Justices N V Ramana, Sanjay KishenKaul, R Subhash Reddy, B R Gavai and Surya Kant to hear the petitions challenging the Presidential Orders under Article 370 which revoked the special status of Jammu and Kashmir from October 1, reported the PTI quoting official sources.