उ. प्र. में पुत्री का सम्पत्ति में अधिकार

उ. प्र. में पुत्री का सम्पत्ति में अधिकार    उत्तर प्रदेश में पुत्रियों को संपत्ति  कितना अधिकार है यह जानने के लिए संपत्ति का प्रकार का जानना होगा। एक वह संपत्ति जो कृषि भूमी है इसमे पुत्रियों को अधिकार तो दिया गया है किन्तु उनको तीसरे और चौथे स्थान पर रखा गया है (उ. प्र. जमींदारी वि अधि. की धरा १७१ व अब उ. प्र. राजस्व संहिता की धरा १०८ ) इसका अर्थ है कि यदि विधवा और पुत्र या पौत्र है तो पुत्री को कोई हिस्सा नहीं मिलेगा यदि उक्त नहीं है तभी पुत्री को हिस्सा मिलेगा उसमे भी यदि अविवाहित पुत्री है तो उसे मिलेगा क्योकि विवाहित पुत्री चौथे स्थान पर है। यह नियम सभी नागरिक पर लागु है चाहे वह किसी धर्म का हो। 

दूसरा वह संपत्ति जो कृषि भूमि नहीं है इसका निस्तारण व्यक्तिगत कानून के अनुसार होगा। हिन्दू  विधि  में २००५ के संसोधन के बाद पुत्री को भी संयुक्त हिन्दू परिवार में जन्मतः सहदायिक माना जाता है और उसका हिस्सा पुत्र के बराबर मिलेगा। 

मुस्लिम विधि में चाहे सुन्नी हो या शिया पुत्री का हिस्सा तभी है जब पुत्र नहीं है यदि एक पुत्री है तो १/२ और एक से अधिक है तो सबका मिलाकर २/३ और पुत्र होने पर पुत्री अवशिष्ट हो जाती है और यदि सबके हिस्से के बाद कुछ अवशिष्ट है तो उसमे पुत्री अन्य के साथ प्राप्त करेगी। 

उपरोक्त सभी नियम निर्वसीयती के मामले में लागु होगा यदि कोई व्यक्ति अपने जीवन कल में वसीयत करके मरता है तो उसके संपत्ति का निस्तारण वसीयत के अनुसार होगा और कृषि भूमि को छोड़ कर वसीयत के सम्बन्ध में धार्मिक विधि लागु होगा अर्थात मुस्लिम केवल अपने १/३ भाग का वसीयत कर सकता है ।

क्या किसी विद्यालय के संरक्षक सोसाइटी के किसी सदस्य द्वारा विद्यालय में किसी के मृतक आश्रित रूप में हुई नियुक्ति को चुनौती देने का अधिकार है

 

       क्या किसी  विद्यालय के संरक्षक सोसाइटी के किसी सदस्य द्वारा विद्यालय में किसी के मृतक आश्रित रूप में हुई नियुक्ति को चुनौती देने का अधिकार है इस प्रश्न का उत्तर माननीय उच्च न्यायलय इलाहबाद ने विशेष अपील (डिफेक्टिव ) संख्या १७३ वर्ष २०१५  (विमल कुमार शर्मा  बनाम उत्तर प्रदेश राज्य व अन्य ) में पारित अपने आदेश दिनांक २४.०२.२०१५ के द्वारा दिया है।  माननीय न्यायालय ने उपरोक्त्त वाद में अपना निर्णय देते हुए कहा है कि नियुक्ति प्राधिकारी विद्यालय की  प्रबंध समिति है और यदि नियुक्ति के समय विद्यालय में प्रबंध संचालक नियुक्त थे और उन्होंने नियुक्ति किया है तो काफी समय बाद संरक्षक सोसाइटी के किसी सदस्य द्वारा उस नियुक्ति को चुनौती देने का अधिकार नहीं है और ऐसे  सदस्य द्वारा दाखिल रिट याचिका ग्राहय नहीं  है और उस पर विचार नहीं किया जा सकता है और केवल उसे ख़ारिज करने का आदेश होना चाहिए।

वसीयत का निष्पादन यदि स्वीकार कर लिया गया है तो क्या उसके गवाहों द्वारा साबित करना आवश्यक है अथवा नहीं

वसीयत का निष्पादन यदि स्वीकार कर लिया गया है तो क्या उसके गवाहों द्वारा साबित करना आवश्यक है अथवा नहीं इस प्रशन का उत्तर माननीय उच्च न्यायालय ने याचिका संख्या ५६४ वर्ष २०१४ श्रीमती कमला देवी वनाम उत्तर प्रदेश राज्य व अन्य में दिया है माननीय न्यायालय ने धरा ६८ साक्ष्य अधिनियम की ब्याख्या करते हुए कहा है की यदि अन्य कोई दस्तावेजजो पंजीकृत  है तथा जिसका निष्पादन स्वीकार कर लिया गया है उसे उसके अनुप्रमाणिक साक्षी द्वारा  सावित किया जाना आवश्यक नहीं है किन्तु यदि वह दस्तावेज वसीयत है तो उसे सावित किया जान आवश्यक है और मात्र उसका निष्पादन स्वीकार कर लेने से उसे स्वीकार नहीं किया जा सकता है और उसके आधार पर किसी को कोई अधिकार नहीं प्राप्त होगा ऐसा ही विचार माननीय सर्वोच्च न्यायलय ने भापुर सिंह बनाम शमशेर सिंह A I R  2009 एस. सी 1766 के वाढ में दिया है और कहा कि  वसीयत के सम्बन्ध में धारा ६८  साक्ष्य अधिनियम के प्रावधान  के अनुसार कम से कम एक गवाह द्वारा साबित करने के नियम से छुट  नहीं दिया जा सकता है , जिसे माननीय उच्च न्यायलय ने उपरोक्त वाढ में  लागु माना  है

VALID PERIOD OF A TEMPORARY REGISTRATION OF A MOTOR VEHICLE

          A vehicle having a temporary  registration number met with an accident after 22 days of expiry of last  valid date of registration i.e. after one month 22 days after date of temporary registration and insurance company refuse to give claim on the ground that vehicle was not registered at the tome accident and at last matter came up before Hon'ble court and Hon'ble Apex court considered the provisions of Motor Vehicle Act and conditions of insurance policy in Civil Appeal no. 8463 of 2014 [Arising out of SLP (C)  No. 26308 of 2013] (Narinder Singh Versus New India Assurance Co. Ltd. and others) decided on 04.09.2014 and Hon'ble Supreme held that:-

      A- No person shall drive a Motor Vehicle in any public place without any valid registration granted by registering authority.

     B- Owner of Vehicle may apply to the registering authority for temporary registration and registration mark and if such temporary registration is granted by authority then same shall be valid only for maximum period of one month.

    C- The period of one month of temporary registration can be extended by the registering authority only if temporary registration is granted in respect of chassis to which body has not been attached and same is detained in work-shop beyond the period of one month for being fitted with the body or unforeseen circumstances beyond the control of owner.

   D- Using a Motor vehicle on the public road without any valid registration is punishable offence  and also a fundamental breach of the terms and condition of policy contract.

EFFECT OF NON PAYMENT OF DEFICIENCY IN COURT-FEE WHERE NO ORDER OF COURT TO PAY

    If Plaint was amended and additional relief was seek and due to amendment in relief plaintiff should pay more court fee but same was not pay and court also did not direct to pay but this point was raised in appeal filed by defendant and appellate court directed to plaintiff to make up the deficit court-fee. whether appellate court can pass such order or not this question was decided by bench of Hon'ble Three Judges (Hon'ble C.J.I. and two other Hon'ble Judges) of Hon'ble Apex Court in  Civil Appeal No. 8660 of 2014 [ arising out of SLP (C) No. 9042 of 2013](Tejendra Singh Ghambhir and another versus Gurpreet Singh and others).

           Hon'ble Apex court examined the provision of section 149, 151, 96, 100 of C.P.C. and section 6 and its sub-section,  and 12 (ii) of court fee Act 1870 (As applicable in U.P.) and held that-

                       It is duty of the court to determine as whether or not court -fee paid on the plaint is deficient and if court fee is found to be deficient, then give an opportunity to the plaintiff to make up such deficiency within the time that may be fixed by the court.

                       For payment of court fee ,the time must be granted by the court and if despite of the order of the court deficient court fee is not paid within time allowed by court time to tme then consequence  as provided must follow ie. court may dismiss the suit.

                      If question of deficiency of court fee is raised before court of appeal revision or reference and court found that court fee in Trial court was deficient then he must time to pay the deficient court and if same in not paid in time fixed by the court then if defaulter is appellant or, revisionist then appeal or revision shall be dismissed and if respondent then court shall informed to Collector to recover the deficiency as  arrears of land revenue.

BAIL IN CRIMINAL CASES AND PROVISION OF BAIL

                   There is two kind of offences i.e. Bailable and non-bailable offence 

                            Deference between bailable and non-bailable offence 

                    Non-bailable offence means not that in a non-bailable offence an accused cannot be released on bail during pendency of trial or  inquiry but only deference in both kind of offences that in a bailable offence bail is right of accused and court or police officer cannot refuse to release him on bail but in non- bailable offences it is depend upon the discretion of court.

                           Provision of bail 

                           Provision of bail has been given in section 167, 436, 436-A, 437, 438 and 439 of Cr.P.C.

167- Although this section is mainly related to the remand of accused during investigation but according to section 2 (a)  (ii) of this section if investigation is not completed and charge sheet submitted within 90 days in offence punishable with death, imprisonment for life or for more than ten years and within 60 days in offence punishable with imprisonment for less than ten year shall be releases on bail if he is ready and does furnish bail.

436- According to this section in a bailable offence an accused person shall be released on bail if he is ready to furnish surety and if he is indigent then he shall release on personal bond without surety and according to explanation of this section if a person unable to give bail within a week of his arrest then he is indigent person.

436-A-  According to this section if any person has spent more than half period in jail of maximum period of imprisonment provided for that offence shall be released on bail.

437-  Tthis section is providing for bail in non-bailable offences, according to this section 1- any person may be released on bail (it depend upon discretion of court) except- 1- an offence punishable with death or imprisonment for life 2- he is previously convicted with death, life imprisonment or imprisonment of more than seven year or he has been previously convicted on two or more occasions for imprisonment for three years or more. and he is not  under the age of sixteen years or woman or sick or infirm.

 2- There are not grounds for believe that he has committed a non-bailable offence.

3-  If in any offence triable by Magistrate the trial is not concluded within sixty days from the first date of fixed for taking evidence and accused in jail for that whole period.

438- This section provides power to High court and Session Court to grant anticipatory bail but this section is not applicable in State of U.P.

439- This Section provides special power to High Court and Session court and high court and Session court may direct to released to any person on bail in any case if it think proper and this power is totally discretionary power of High Court and Session court.. and this section is also provides power to High Court and Session Court to cancel the bail of any person.

INCOME OF A HOUSE-WIFE FOR COMPUTING COMPENSATION UNDER MOTOR VEHICLES ACT

             If a house wife was not doing any work and has no source of income then how much her income should be fixed for purpose to computing the compensation under Motor Vehicles Act this question has been decided by Hon'ble Apex Court in the case of Jitendra Khimshankar Trivedi and othess Versus  Kasam Daud Kumbhar and others decided on 03.02.2015 and reported in 2015 (2) AWC 1089 (SC).

              Hon'ble Apex court held that it is hard to monetize the domestic work done by a house-wife. The service of the mother/wife is available 24 hours and her duties are never fixed. courts have recognized the contribution made by the wife to the house is invaluable and that it cannot be computed in terms of money. A house wife/house-maker does not work by the clock and she is in constant attendance of the family throughout and such service render by the house-maker has to be necessarily kept in veiw while calculating the loss of dependency.

              In this case Hon'ble Apex Court fixed the income of deceased house-wife/house-maker Rs. 3,000/- per month after considering several earlier decisions of Court and enhanced the award.

CODITION IN WHICH HIGH COURT SHOULD EXERCISE EXTRAORDINARY POWER OF ARTICLE 226 OF C.O.I. OR 482 OF Cr.P.C.

In the case of T.T. Antony Versus State of Kerala decided on 12.07.2001 reported in A.Cr..R. 2001- 2- 1510, Hon'ble Apex court has pleased to give some categories of cases in which high courts could exercise the extraordinary power of Article 226 of Constitution of India and section 482 of Cr.P.C.for quash the criminal proceeding.which are below-

1. Where the allegations made in First Information Report or the complaint, even if they are taken at their face value and accepted in their entirety  .do not prim a facie constitute any offence or make out  a case against the accused.

2. Where the allegations in First Information Report or other materials, if any accompanying the First information Report do not disclose a cognizable offence, justifying an investigation by police officers under section 156(1) of the code except under an order of a Magistrate within the purview of section 155(2) of the Code.

3. Where the uncontroverted allegations made in the FIR or complaint and evidence collected in support of the same do not disclose the commission of any offence and make out a case against accused.

4. Where the allegations in the FIR do not constitute a cognizable offence but constitute only a non-cognizable offence, no investigation is permitted by a police officer without an order of a Magistrate as contemplated under section 155(2) of the code.

5.Where the allegations made in the FIR or complaint are so absurd and inherently improbable on the basis of which no prudent person can ever reach a just conclusion that there is sufficient ground for proceeding against accused.

6. Where there is an express legal bar engrafted in any of the provision of the code or the concerned Act (under which a criminal is instituted) to the institution and continuance of the proceedings and for where there is a specific provision in the code or the concerned Act, providing efficacious redress for the grievance of the aggrieved party.

7. where a criminal proceeding is manifestly attended with mala fide and/or where the proceeding is maliciously instituted with an ulterior motive for wrecking vengeance on the accused and with a view to spite him due to private and personal grudge.

        According to order of Hon'ble Apex court it self the above list as noted is illustrative and not exhaustive.

WHETHER AN APPEAL CAN BE AMENDED IN TO A REVISION AND WHEN

         The amendment to the pleading pleading is permissible only under Order 6 Rule 17 of C.P.C. but memo of appeal would not fall within the meaning of pleading of pleading in view of the Order 6 Rule 17 of C.P.C. which provides for plaint and written statement only to be part of pleading, therefore if application is moved for convert the appeal in to the revision then same cannot be treated as  amendment application but essentially it is an application for conversion of appeal into revision under section 151 of C.P.C.

        The court has discretion in exercise of inherent power power under section 151 of C.P.C. to permit conversion of appeal in to revision and in the interest of justice this power may be exercised.

        There is nothing like a period of limitation for making an application for conversion of an appeal into revision or vice-versa.

          above view was taken by Hon'ble High Court Allahabad in the decision given by court in Civil Revision No. 212 of 2013 (Amit Bansal Versus Dheeraj Sachdeva) decided on 15.04.2015 after considering many law laid down by Hon'ble Apex Court and Hon'ble High Court.

WITHHOLDING OF GRATUITY AND OTHER RETIRAL BENEFITS

Whether Gratuity and other retiral  Benefits can  withhold on the ground of pendency of criminal case

Hon'ble high court Allahabad considered the above question in the case of Shiv Sewak Prasad Mishra Versus State of U.P. and others reported in (2015) 1 UPLBEC 521 and held ofter considering many judgments of Hon'ble High Court and Hon'ble Apex Court  that gratuity and other retiral benefits and final pension of a employee can not be withhold only on the ground of pendency of a criminal case against him at the time of his retirement but it can be done only in exception when in the criminal case there is any allegation of loss to the Government and there is recovery to be made from the employee.

ELECTION PETITION ON THE GROUND OF CORRUPT PRACTICE

ELECTION PETITION AGAINST A SUCCESS GAINED CANDIDATE BY UNSUCCESSFUL CANDIDATE 

 If a candidate who has lost the public election and challenged the election by filling a election petition against the candidate who has gained success in that public election on the ground of corrupt practice then burden of proof lie upon his shoulder and he should take extra care and leave no room for doubt while making such type  allegation as  Hon'ble Supreme Court of India has held  in the case of  C. P. John Versus Babu M. Palissery reported in A.W.C. 2015(1) page 940.

       Hon'ble Apex Court   considered and examine the provision of section 123 (1), 123 (4), 83 (1) and 86 of  Representation of the People Act 1951 and held that   unless and until election petitioner comes forwarded with the definite pea of his case that allegation of corrupt practice is supported by legally acceptable material evidence without iota of doubt as to such allegation- Election petition can not be entertained and will have to rejected at threshold.

           In the filing of an election  petition challenging the successful election of a candidate, the election petitioner should take extra care and leave no room for doubt while making any allegation of corrupt practice indulged in by the successful candidate and that he cannot be letter on heard to state that allegations were generally spoken to or discussed sporadically and that basis election petition came to filed as according to view of Hon'ble court since a successful candidate in an election has got the support of the majority of the voters who cast their votes in his favour, so a unsuccessful candidate cannot be allowed  to call a successful candidate in question by making frivolous or baseless allegations and thereby unnecessarily drag him in to the court proceedings and make waste of his precious time, which time should be spent in welfare of public of his constituency.       

SCOPE OF WRIT JURISDICTION AGAINST JUDICIAL ORDER OF CIVIL COURT

 Whether against the Judicial order of Civil court, Writ of certiorari can be issue under Article 226 of Constitution of India 

Hon'ble Supreme Court in Civil Appeal No.2548 of 2009, connected

with Special Leave Petition (C) No.25828 of 2013, dated 26.2.2015,

Radhey Shyam and another v. Chhabi Nath and others held and answer that

(i) Judicial orders of civil court are not amenable to writ

jurisdiction under Article 226 of the Constitution;

(ii) Jurisdiction under Article 227 is distinct from jurisdiction

from jurisdiction under Article 226.

 And Hon'ble High Court Allahabad also has fallowed the order of Hon'ble Apex Court in Writ-C No. 11761 of 2015 ( Thakur Prasad Versus Beni Prasad (Now Deceased) and others) decided on 25.03.2015
            In view of aforesaid Judgments now writ Petition under Article 226 of constitution against the judicial order passed by Civil court in civil proceeding is not maintainable. and same cane be challenged only appeal or Revision  and in some cases petition under Article 227 of Constitution can be filed as according to aforesaid judgments only limited jurisdiction which a High Court has arising out of the judicial orders passed by the civil court, is under Article 227 of the Constitution of India,and not under Article 226 of the Constitution of India
 
 

nportance of 7 years period in dowry case

nportance of 7 years period in dowry case

some of people think that after 7 years of marriage husband and in-laws are safe from the case of dowry but it is not correct because they can be prosecuted under section 498-A  I.P. C and under prevention of Women from Domestic Violence Act, 2005 and period of seven years is only for dowry death as if any lady died in UN-natural death and she was subjected  to  cruelty or harassment for demand of dowry then it will be presumed that her death was dowry death and burden of prof will lie upon accused persons but after 7 years if she died and it was alleged that she was kill by her in-laws then burden of proof lie upon prosecution .

scope of section 151 and order IX Rule 13 of C.P.C.

scope of section 151 and order IX Rule 13 of C.P.C.

Hon'ble Supreme court of India has defined the scope of section 151 and order IX Rule 13 of C.P.C. in the case of Ramji Gupta versus Krishan Agrawal reported in A.I.R. 2013, S.C. 3099 and held that:-
1. A stranger who was not party in suit can not filed an application under order IX Rule 13 of C.P.C.for recall of an ex-party decree.
2.  Inherent power under section 151 of C.P.C. can be exercised by a court  to redress only such grievances for which no other remedy is provided under C.P.C.
3.  In the event that an order has been obtained by playing fraud upon court then it is always open to the court to recall the said order on the application of the person aggrieved and such power can also be exercised by the Appellate court.
4.  Where the fraud has been committed upon a party, the court cannot investigate the factual issue, and in such an eventuality, a party has the right to get the said judgment or order set aside by filing an independent suit.

Effect of allotment of more than three chaks during consolidation

Effect of allotment of more than three chaks during consolidation

There is two proviso in section 19 (e) of  U.P. consolidation Act.
1.That, more than three chaks may not be allotted to any tenure holder without permission in writing of  Deputy Director of consolidation.
2. That, no any allotment shall be invalid merely on the ground that more than three chaks have been allotted to any tenure holder.
      From bare perusal of these proviso it appears that both are contradictory of each.
      In my opinion generally more than three chaks should not be allotted to a tenure holder and if necessary than written permission from Deputy Director Should be obtained but if more than three chaks have been allotted to the any tenure holder and otherwise allotment is justified except permission of Deputy Director of consolidation then allotment may not be cancelled on sole ground non permission of Deputy Director of Consolidation.
       Purpose of these proviso is that if several chaks will be allotted then purpose of consolidation will be failed but also injustice should not be done with any tenure holder in the garb of number of chak.
         In my opinion second proviso will be prevail over first proviso but also second proviso should not be used as weapon for justified the every allotment of more than three chaks.

         In my one case Settlement Officer of Consolidation adjusted the land of main road side equally between two brothers but in doing so it become four chaks to each brother and in revision filed by one brother who had entire land of road side, Deputy Director of Consolidation set side the order of S.O.C. and now matter is pending before Hon'ble High Court Allahabad and Hon'ble High Court has stayed the effect and operation of order of D.D.C. 

SCOPE OF SECTION 47 AND 60 (1) (c) OF C.P.C. AND ORDER 21 RULE 58 AND 90 OF C.P.C.

SCOPE OF SECTION 47 AND 60 (1) (c) OF C.P.C. AND ORDER 21 RULE 58 AND 90 OF C.P.C.

Issue regarding scope of section 47 and 60 (1) (c) of C.P.C. and Order 21 Rule 58 and 90 of C.P.C. has been decided by Hon'ble High Court, Allahabad in the case of Civil Misc. Writ Petition no. 506 of 1990 (Mehtab versus VIIIth Additional District Judge and others) and Hon'ble court held that-

1. if an objection under order 21 Rule 58 of C.P.C. was filed and same was dismissed and later on another objection was filed under section 47 of  C.P.C. was filed on the ground that according to section 60 (1) (c) land can not be attached or auctioned than same is maintainable even after confirmation of sale and res judicata is not apply and same can not be dismissed on the ground of dismissal of earlier objection either under order 21 Rule 58 or 90 of C.P.C.

2. Politics can not be accepted as a regular source of income. Even if some unscrupulous person joins politics with a view to earn money  and politics is not meant  for earning money, illegal source of income cannot be taken in to the consideration.

3. if judgment debtor filed revenue record to show that he has agricultural land then it can not accepted the argument that land is quite small in area hence it could not be sufficient to meet the expenses as it is the story of millions of farmers in India that they have got insufficient land. .

REMEDY TO AN ACCUSED IN UTTAR PRADESH DURING INVESTIGATION

REMEDY TO AN ACCUSED IN UTTAR PRADESH DURING INVESTIGATION

There is no provision of interim bail in Uttar Pradesh so there is question that what remedy is available to an accused person who believes that he has been falsely implicated in criminal case and he has evidence to prove that he is innocent but that evidence can be produced only at the time of defense evidence before that he has to face trial and got bail even he may remain in Jail for long time. In this situation he may approach to Investigating Officer or higher authorities of police but in doing so he may be arrested. He may approach to Hon'ble High court and challenge the F.I.R. but in Writ jurisdiction only F.I.R. Version can be seen but his defence  evidence will not be considered as view of Hon'ble courts. in this situation person who has been falsely implicated in a criminal case is helpless. so our leaders and Hon'ble courts must think about this serious problem and made amendment in present law so that a innocent person may be saved from harassment and a culprit may be punished because ratio of false implication in in Uttar Pradesh is more than other states and countries.