Questions and answers on law Part 30

Q 1:-  Whether the amendment to S 6 of Hindu succession Act is retrospective, prospective or retroactive?

Ans:- Retroactive because even though daughter becomes coparcener by birth before Amendment Act 2005 but she can claim its benefit only from date of Amendment.

Q 2:- Is there any difference between revisional power of Sessions Court and High court?

Ans:- The only difference between the powers of revision before the Sessions Court and the High Court, as could be seen from Sections 399 and 401 Cr.P.C is that Section 399 Cr.P.C  provide that in the case of any proceeding, the record of which has been called for by himself the Sessions Judge may exercise. In Section 401 Cr.P.C the Section begins with the words in the case of any proceeding the record of which has been called for by itself or which otherwise comes to its knowledge, the High Court may exercise. Thus, it is clear that the word otherwise comes to its knowledge is absent in Section 399 Cr.P.C.

Q 3:-  If there is state and central law on same subject matter,which one will prevail?

Ans:- Central Government Act

Article 254 in The Constitution Of India 1949

254. Inconsistency between laws made by Parliament and laws made by the Legislatures of States

(1) If any provision of a law made by the Legislature of a State is repugnant to any provision of a law made by Parliament which Parliament is competent to enact, or to any provision of an existing law with respect to one of the matters enumerated in the Concurrent List, then, subject to the provisions of clause ( 2 ), the law made by Parliament, whether passed before or after the law made by the Legislature of such State, or, as the case may be, the existing law, shall prevail and the law made by the Legislature of the State shall, to the extent of the repugnancy, be void

(2) Where a law made by the Legislature of a State with respect to one of the matters enumerated in the concurrent List contains any provision repugnant to the provisions of an earlier law made by Parliament or an existing law with respect to that matter, then, the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State: Provided that nothing in this clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislature of the State

Q 4:- What type of legal aid can be provided to mentally ill person? What is expected to do while dealing with mentally ill/unsound accused produced before Magistrate?

Ans:- Section 27 in The Mental Healthcare Act 2017

Title:  Right to legal aid

Description:

 (1) A person with mental illness shall be entitled to receive free legal services to exercise any of his rights given under this Act. 

(2) It shall be the duty of magistrate, police officer, person in charge of such custodial institution as may be prescribed or medical officer or mental health professional in charge of a mental health establishment to inform the person with mental illness that he is entitled to free legal services under the Legal Services Authorities Act, 1987 (39 of 1987) or other relevant laws or under any order of the court if so ordered and provide the contact details of the availability of services.

Q 5:- When prosecution’s witness retracts, prosecutor obtains permission to contradict and confront him with previous statement. Whether it would be examination in chief or cross-examination?

Ans:-  In my opinion it would be examination-in-chief.

Section 154 in The Indian Evidence Act, 1872

154. Question by party to his own witness.—1[

(1) ] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party.—1[(1)] The Court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party." 2[(2) Nothing in this section shall disentitle the person so permitted under sub-section (1), to rely on any part of the evidence of such witness.]

Q 6:-  How to prove unregistered will- deed when attesting witnesses are not available?

Ans:- Under the provisions of Section 18 of the Indian Registration Act, there is no stipulation which mandates that a will is required to be registered and hence there exists no debate over the actual validity of an unregistered will since the same is valid whether registered or unregistered as long as it resonates with all the points regarding the validity of a will.

Central Government Act

Section 69 in The Indian Evidence Act, 1872

69. Proof where no attesting witness found.—If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.

Q 7:- Which offence is attracted, if the offender has disfigured the face of the Corpus?

Ans:- Central Government Act

Section 297 in The Indian Penal Code

S 297. Trespassing on burial places, etc.—Whoever, with the inten­tion of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulchre, or any place set apart from the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine, or with both.

Q 8:- Whether Decree will be nullity if CJJD has decided suit beyond his pecuniary jurisdiction?

 Ans:- As per S 21 of CPC,

(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.

Hence decree will not be nullity.

Q 9:- Whether objection to decree on the ground of nullity is covered under section 47 of CPC?

Ans:-  Though this view has echoed time out of number in similar pronouncements of this Court, inDhurandhar Prasad Singh vs. Jai Prakash University and others, AIR 2001 SC 2552, while dwelling on the scope of Section 47 of the Code, it was ruled that the powers of the court thereunder are quite different and much narrower than those in appeal/revision or review. It was reiterated that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole and an executing court can allow objection to the executabilty of the decree if it is found that the same is void ab initio and is a nullity, apart from the ground that it is not capable of execution under the law, either because the same was passed in ignorance of such provision of law or the law was promulgated making a decree inexecutable after its passing. 

Reportable

Supreme Court of India

M/S. Brakewel Automotive ... vs P.R. Selvam Alagappan on 21 March, 2017

Bench: Arun Mishra, Amitava Roy

Citation:(2017) 5 SCC 371,2017(6) MHLJ 47   

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