Friday, 4 April 2025

ORC Holder cannot claim absolute ownership when ORC is granted for the benefit of all the heirs/joint family members. Suit for partition is maintainable.

 


2015 ALL SCR 3381
(SUPREME COURT)

T. S. THAKUR, C. NAGAPPANT AND ADARSH KUMAR GOEL, JJ.

N. Padmamma & Ors. Vs. S. Ramakrishna Reddy & Ors.

Civil Appeal No. 3632 of 2008

23rd September, 2014.

Petitioner Counsel: Mr. SHRIDHAR POTARAJU
Respondent Counsel: Ms. D. BHARATHI REDDY

Possession - Possession of one co-heir - Is treated as possession of all the co-heirs - Co-heir in possession cannot render its possession adverse to other co-heirs who are not in possession.

It is fairly well settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other.

A Co-heir could merely on the basis of grant of occupancy rights in his name exclude the other co-heirs from partition of the property so granted.

(1995) 3 SCC 291 Overruled.

AIR 1957 SC 314, (1971) 1 SCC 556, 1989 Supp (1) SCC 246, 1995 Supp(1) SCC 162 Rel.on. [Para 11,16]

Cases Cited:
N. Padmamma and Ors. Vs. S. Ramakrishna Reddy and Ors., (2008) 15 SCC 517 [Para 1]

Corea Vs. Appuhamy, 1912 AC 230 [Para 11]

P. Lakshmi Reddy Vs. L. Lakshmi Reddy, AIR 1957 SC 314 [Para 11]

Bhubaneshwar Prasad Narain Singh and Ors. Vs. Sidheswar Mukherjee and Ors., (1971) 1 SCC 556 [Para 12,16]


Kalgonda Babgonda Patil Vs. Balgonda Kalgonda Patil and Ors., 1989 Supp (1) SCC 246 [Para 13,14]

Shivappa Tammannappa Karaban Vs. Parasappa Hanammappa Kuraban and Ors., 1995 Supp (1) SCC 162 [Para 14]

Lokraj and Ors. Vs. Kishan Lal and Ors., (1995) 3 SCC 291 [Para 15,16]



JUDGMENT

T. S. THAKUR, J. :- This appeal has been placed before this larger bench pursuant to a reference made by a Division Bench of this Court comprising S.B. Sinha and Lokeshwar Singh Panta, JJ. The reference Order reported in N. Padmamma and Ors. v. S. Ramakrishna Reddy and Ors. (2008) 15 SCC 517 formulates the following question for determination:

"Whether the civil court has jurisdiction to entertain a suit for partition for division of respective shares amongst the members of a joint family, when in respect of some of the lands, occupancy right has been granted in favour of one of them in terms of the provisions of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 (for short "the Act") is the question involved herein."

2. We may before adverting to the precise question and the rival contentions urged before us, briefly recapitulate the facts:

3. S. Ramakrishna Reddy original owner was survived by his sons, namely, S. Ramachandra Reddy and S. Anantharam Reddy. The former passed away in the year 1968 leaving behind two wives, two daughters and a son. In this appeal the two wives and their children are pitted against each other. While the appellants-plaintiffs in this appeal are the first wife and her daughter, the defendants-respondents are the son, second wife and the daughter left behind by the deceased.

4. Civil Suit No.933 of 1981 filed by the plaintiffs (appellants herein) before the II Additional Judge, City Civil Court, Hyderabad, sought a decree for partition of the property left behind by S.Ramachandra Reddy by metes and bounds. The plaint inter alia, stated that Ramchandra Reddy and his brother late Anantharam Reddy had acquired several items of immovable properties including agricultural land admeasuring 26 acres, 37 guntas, residential house bearing M.C.H No.2-2-977 and Mulgi M.C.H. No.2-2-1010 situate at Bagh Amberpet, Musheerabad Taluka of Hyderabad district. In the partition between the two brothers, the suit schedule properties fell to the share of Ramachandra Reddy. The plaintiff's case was that after the death of Ramachandra Reddy, the parties continued to jointly own and possess the properties in dispute and being self-acquired property of Ramachandra Reddy, each one of the five heirs were entitled to 1/5th share in the same.

5. The suit was contested by the defendants-respondents, inter alia, alleging that agricultural lands covered by Surveys No. 21 to 28 were inams lands which were acquired by the grandfather of defendant-respondent no.1 and enjoyed by him as holder by paying land revenue. It was further alleged that upon a partition between late Shri Anantharam Reddy and S. Ramakrishan Reddy that took place in the year 1960 land underlying Survey Nos.21-28 and house bearing M.C.H No.2-2-977 and Mulgi M.C.H. No.2-2-1010 situate at Bagh Amberpet, Musheerabad Taluka of Hyderabad district was allotted in favour of Ramchandra Reddy after whose death defendant no.1 came in possession of the said properties. Defendant no.1 also claimed to have constructed a new house after demolition of the old. Besides, he acquired occupancy rights in respect of Survey Nos.21-28 under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 mentioned earlier. The defendant's case, therefore, was that he had by reason of the grant of occupancy rights in his favour become the absolute owner and occupant of the inams lands underlying Survey Nos.21-28 in which the plaintiffs could claim no share. It was also alleged that agricultural land covered by Survey Nos.282/1, 283/1, 283/2, 283/3, and 284 measuring 5 acres and 16 guntas was purchased to the extent of 1/2 by defendant no.1 with the help of money which defendant no.1's grandmother had provided for that purpose. Defendant no.1 was, therefore, the absolute owner of the said property comprising items 9-13 of plaint 'A' schedule.

6. The Trial Court framed as many as six issues and by its judgment and order dated 24th April, 1989 decreed the suit in part. The Trial Court held that defendant no.1 was the absolute owner of property covered by Survey Nos.21-28 mentioned above but had failed to establish that he was the absolute owner of the property covered by item 9-14 on the basis of the instrument of sale in his favour. The said properties were held by the Trial Court to be joint family properties partitioned. The Trial Court further held that the plaintiffs-appellants were entitled to 1/5th share only in Schedule 'B' and 'C' properties.

7. Aggrieved by the judgment and order passed by the Trial Court the respondents filed C.C.C. Appeal No.94 of 1989 to which the appellants filed cross-objections. The appeal and the cross-objections were both heard and disposed of by a Single Judge of the High Court with the modification that the plaintiffs will be entitled to 3/8th share in the property held jointly among the parties. The claim for allotment of a share in the inam lands over which defendant no.1 had acquired occupancy rights was held untenable as the grant of such occupancy rights was in favour of defendant no.1 in his individual capacity and not as a member of the joint family. The Single Judge observed:

"In view of the decision of the Supreme Court in Laxman Ambaji's case referred to above, I agree with the contention of the leaned counsel for the appellant/1st defendant that in so far as sec. 8 of the Act, the date of vesting should taken as 1-11-1073 and since the first defendant is registered as an occupant of the land, he does so in his individual capacity and not as a member of the joint family and so, the lower court is right in dismissing the plaintiff's claim as regards these items of property."

8. The matter was then brought up before a Division Bench of the High Court in Letters Patent Appeal No.3 of 1993 filed by the appellants which appeal also failed and was dismissed by the Division Bench in terms of its order dated 11th August, 2006. The Division Bench of the High Court affirmed the finding recorded by the Trial Court and the Single Judge that defendant no.1 (respondent herein) had failed to prove the alleged relinquishment by the plaintiffs of their share in items 7 and 8 of plaint 'A' schedule property and plaint 'B' and 'C' properties. As regards items 9 to 14 of plaint 'A' Schedule property also the Division Bench affirmed the findings of the Courts below that defendant no.1 was not the absolute owner of the property even when the same had been purchased in his name as the sale consideration came from out of the joint family funds. Defendant No.1 was, in any case, a minor who had no income of his own. The story that his grandmother had contributed money for the purchase of said items of property was disbelieved by all the three Courts and the claim of exclusive ownership over the said property rejected. More importantly, the Division Bench while affirming the view taken by the Single Judge held that the grant of occupancy rights in favour of defendant no.1 was in his individual capacity as the occupant of the land in question.

9. While we have given the factual contours of the case in the above paragraphs, we must make it clear that none of the findings recorded by the Courts below are under challenge before us except the ones that relate to the question whether grant of occupancy rights in favour of respondent No.1 was in his individual capacity to the exclusion of the other members of the family so as to deny to the plaintiffs-appellants their share in the said property. For a proper determination of that question, it is necessary to extract Sections 3, 8, 10, 24 and 29 of the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 that came into force on 20th July, 1955, which are as under:

"3. Abolition and vesting of inams and the consequences thereof.-(1) Notwithstanding anything to the contrary contained in any usage, settlement, contract, grant, sanad, order or other instrument, Act, regulation, rules or order having the force of law and notwithstanding any judgment, decree or order of a Civil, Revenue or Atiyat Court, and with effect from the date of vesting, all inams shall be deemed to have been abolished and shall vest in the State.

(2) Save as expressly provided by or under the provisions of this Act and with effect from the date of vesting the following consequences shall ensue, namely:

(a) * * *

(b) all rights, title and interest vesting in the inamdar, kabiz-e-kadim, permanent tenant, protected tenant and non-protected tenant in respect of the inam land, other than the interest expressly saved by or under provisions of this Act and including those in all communal lands, cultivated and uncultivated lands (whether assessed or not), waste lands, pasture lands, forests, mines and minerals, quarries, rivers and streams, tanks and irrigation works, fisheries and ferries shall cease and be vested absolutely in the State free from all encumbrances;

(c)-(f) * * *

(g) the inamdar and any other person whose rights have vested in the State under clause (b) shall be entitled only to compensation from the Government as provided for in this Act;

(h) the relationship with regard to inam land as between the inamdar and kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant shall be extinguished;

(i) * * *

(3) * * *

8. Registration of non-protected tenant as occupant.-(1) Every non-protected tenant shall, with effect from the date of vesting subject to Section 37 of the Andhra Pradesh (Telangana Area) Tenancy and Agricultural Lands Act, 1950 (21 of 1950) be entitled to be registered as an occupant of such inam lands in his possession as may be left over after the allotment under Section 4 which, immediately before the date of vesting were under his personal cultivation and which together with any lands he separately owns and cultivates personally, are equal to four and a half times the family holding.

(2) The non-protected tenant shall be entitled to compensation from the Government as provided for under this Act in respect of inam lands in his possession in excess of the limit prescribed in sub-section (1) whether cultivated or not.

(3) No non-protected tenant shall be registered as an occupant of any land under sub-section (1) unless he pays to the Government as premium an amount equal to sixty times the land revenue for dry land and twenty times for wet land. The amount of premium shall be payable in not more than ten annual instalments along with the annual land revenue and in default of such payment, shall be recoverable as arrears of land revenue due on the land in respect of which it is payable.

* * *

10. Enquiry by Collector in certain cases.-The Collector shall examine the nature and history of all lands in respect of which an inamdar, kabiz-e-kadim, permanent tenant, protected tenant or non-protected tenant, claims to be registered as an occupant under Sections 4, 5, 6, 7 and 8 as the case may be, and decide-

(a) in whose favour, and in respect of which inam lands, the claims should be allowed;

(b) the land revenue and the premium payable in respect of such lands.

24. Appeals from orders under Section 10 to prescribed authority.-(1) Any person aggrieved by a decision of the Collector under Section 10 may, within thirty days from the date of decision, or such further time as the prescribed authority may for sufficient cause allow, appeal to the prescribed authority and its decision shall be final.

(2) If any question arises whether any building or land falls within the scope of Section 9 the same shall be referred to the prescribed authority whose decision shall be final.

* * *

29. Savings.-Save as otherwise provided in this Act, no order passed by the Collector or by the Special Tribunal under this Act shall be liable to be cancelled or modified except by the High Court as aforesaid or be questioned in any court of law."

10. From a reading of Section 3 (supra), it is manifest that all inam lands stand vested in the State of Andhra Pradesh with effect from 20th July, 1955, the date when the Act came into force. Even so, it is common ground that the inam land in dispute had continued to be in possession of Ramachandra Reddy till his demise in the year 1968 whereupon the rights and privileges in regard to the same including those that would have entitled Ramachandra Reddy to claim occupancy rights under the Act on account of his being in cultivating occupation of the land on the date of the vesting were inherited by his legal heirs - the parties to this appeal. Respondent No.1, it is noteworthy, was the only male member in the family left behind by the deceased. Any recognition of his being in possession and personal cultivation of the land held by his father was, in the absence of any plea or proof of ouster, to be taken as cultivation on behalf of the entire family, and not in his individual capacity. We say so because the demise of Ramachandra Reddy, the original occupant of the land, could not on any juristic principle grant exclusivity to his son (respondent No.1 in this appeal) to claim the right to possession or cultivation of the land which Ramachandra Reddy held in his individual capacity and which upon his demise would logically and as a matter of course devolve upon the legal heirs left behind by him in equal share. The status of respondent No.1 as a legal heir of the deceased was no better than other legal heirs of Ramachandra Reddy. Grant of occupancy rights to Respondent No.1 as the only male member of the family, could not result in the extinction of the rights of the appellants who had an equal claim in no way inferior to that of respondent No.1 to succeed to estate left behind by the deceased including succession to all such rights that may have been inchoate on the date of the demise of Ramachandra Reddy but as could result in a beneficial grant in his favour based on his being an Inamdar. That the family was joint on the demise of Ramachandra Reddy is not in dispute. That it was dependent upon the land is also not in dispute. In the absence of any evidence much less cogent and credible one to establish ouster of the other members of the Ramachandra Reddy's family it is difficult to appreciate how respondent No.1 could claim the legacy of Ramachandra Reddy whether in regard to the property owned by the deceased or the rights which the deceased had as an occupant. The reference order is, therefore, right when it says :

"Right of inheritance and succession is a statutory right. A right in a property which is vested in terms of the provisions of the Hindu Succession Act cannot be taken away, except in terms of provisions of another statute, which would have an overriding effect. Such special statute should be a complete code. It shall ordinarily be a later statute. Ordinarily again it must contain a non obstante clause."

11. It is fairly well settled principle of law that the possession of a co-heir is in law treated as possession of all the co-heirs. If one co-heir has come in possession of the properties, it is presumed to be on the basis of a joint title. A co-heir in possession cannot render its possession adverse to other co-heirs not in possession, merely by any secret hostile animus on his own part, in derogation of the title of his other co-heirs. Ouster of the other co-heirs must be evidenced by hostile title coupled by exclusive possession and enjoyment of one of them to the knowledge of the other. (See Corea v. Appuhamy 1912 AC 230). Reference may also be made to the decision of this Court in P. Lakshmi Reddy v. L. Lakshmi Reddy AIR 1957 SC 314 where this Court has succinctly summed up the legal position as under:

"But it is well-settled that in order to establish adverse possession of one co-heir as against another it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The coheir in possession cannot render his possession adverse to the other co-heir, not in possession. merely by any secret hostile animus on his own part in derogation of the other co-heir's title. It is a settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster."

12. Relying upon the principles stated above, this Court in Bhubaneshwar Prasad Narain Singh and Ors. V. Sidheswar Mukherjee and Ors. (1971) 1 SCC 556, almost in similar circumstances held:

"In this case we have to consider whether the appellants had laid a claim which a co-sharer could not put forward except by pleading ouster or any other independent ground. Even if they were in actual Khas possession within the meaning of Section 2(k) of the Act it must be held that the plaintiff who was a co-sharer was in constructive possession through the appellants as "under the law possession of one co-sharer is possession of all the co-sharers". We see no reason to hold that the observations of this Court to the above effect in P.L. Reddy v. L.L. Reddy6 are not applicable to the case before us. The appellants do not claim to be trespassers on the property: neither did they claim any title to the lands adversely to the plaintiff-respondent. The deeming provision of Section 6 must therefore ensure for the benefit of all who in the eye of law would be regarded as in actual possession. It follows that the plaintiff had not lost his share in the Bakasht lands and had a right to them though not as tenure-holder or proprietor but certainly as a Raiyat under the provisions of the Land Reforms Act. The appeal must therefore be dismissed with costs."

13. In Kalgonda Babgonda Patil v. Balgonda Kalgonda Patil and Ors. 1989 Supp (1) SCC 246, this Court was dealing with inam lands held by ancestors of appellants under Vat Hukums of Kolhapur State. The ancestors of the appellant were holding the watan (inam) land in lieu of service and as they were holding in the capacity of watan or inam, they were impartible. The Trial Court decreed the suit for partition in regard to watan land. In an appeal before the High Court of Bombay, the Division Bench of that Court held that when watan (inam) rights were abolished, all rights including the right of partition also stood abolished. A three-Judge Bench of the High Court of Bombay overruled the view in another case holding that in view of abolition of inam, the properties enure for enjoyment of the members of the family who are entitled to claim partition. This Court held:

"These watan lands continued to be the hereditary property of the family although according to the custom the watan was only in the name of the senior member of the family and the succession according to the custom was in accordance with rule of primogeniture. For the first time under this Act these watans were abolished and the lands were converted into rayotwari lands and therefore it became partible."

14. The decisions in Kalgonda's case (supra) and Nagesh Bisto Desai case (supra) were followed in Shivappa Tammannappa Karaban v. Parasappa Hanammappa Kuraban and Ors. 1995 Supp (1) SCC 162. That was a case arising under the Karnataka Village Officers Abolition Act, 1961. Re-grant was made in that case in the name of the former holder of the village office as a watandar. This Court held that just because the grant was made in the name of watandar, did not mean that the properties ceased to be joint family properties.

15. In Lokraj and Ors. V. Kishan Lal and Ors. (1995) 3 SCC 291 also this Court was dealing with abolition of inam under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955. A suit for partition of the inam land was filed which was contested on the ground that abolition of the pre-existing right, title and interest of inamdar and grant of occupancy right to the occupant of the land disentitled anyone to claim a partition of such land. This Court while holding that the suit was not maintainable on account of abolition of pre-existing right, title and interest of the inamdar, observed:

"4. Consequent to the abolition, the pre-existing right, title and interest of the inamdar or any person having occupation of the inam lands stood divested and vested the same in the State until re-grant is made. The inamdar, thereby lost the pre-existing right, title and interest in the land. The right to partition itself also has been lost by the statutory operation unless re-grant is made. We are not concerned with the consequences that would ensue after re-grant of this appeal. Therefore, it is not necessary for us to go into the question that may arise after the re-grant."

16. It is evident from the above that the right of partition was held to have been lost by operation of law. Till such time the grant was made no such right could be recognized observed this Court. This Court specifically held that it was not concerned with the consequences that would ensue after grant is made. The suit in the present case was filed after the grant of occupancy rights. The question here is whether the grant of such rights is for the benefit of one of the members of the joint family or for all the heirs left behind by Ramachandra Reddy. Our answer to that question is in favour of the appellants. In our opinion, the grant of such occupancy rights in favour of respondent no.1 was for the benefit of all the legal heirs left behind by Ramachandra Reddy. Reliance upon Lokraj's case (supra), therefore, is of no assistance to the respondents. We are also of the view that the decision in Lokraj's case (supra), does not correctly apply the earlier decision of this Court in Bhubaneshwar Prasad Narain Singh's case (supra). With utmost respect to the Hon'ble Judges who delivered the decision in Lokraj's case, the law was not correctly laid down, if the same was meant to say that even in the absence of a plea of ouster, a co-heir could merely on the basis of grant of the occupancy rights in his name exclude the other co-heirs from partition of the property so granted.

17. In the result, we allow this appeal and set aside the judgment and order passed by the Courts below to the extent the same hold that inam lands granted in favour of respondent no.1 upon abolition of the inam under the Andhra Pradesh (Telangana Area) Abolition of Inams Act, 1955 are not partible among the heirs left behind by Shri Ramachandra Reddy. The suit filed by the appellants shall resultantly stand decreed even qua the inam land in the same ratio as has been determined by the High Court by the impugned judgment in regard to other items of properties. No costs.

Appeal allowed.


 

 


Thursday, 20 March 2025

Direct transfer of amounts to the Bank Accounts of litigants in all types of cases such as Motor Accident Claim Cases, Land Acuisition Cases, MCs, DVCs etc.,- Directions of Hon'ble Apex Court to prevent middlemen exploitation and delay in disbursement



Supreme Court of India

Parminder Singh vs Honey Goyal on 18 March, 2025

Author: Rajesh Bindal

Bench: Rajesh BindalJ.K. Maheshwari

2025 INSC 361 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION



CIVIL APPEAL NO………………….OF 2025

(Arising out of S.L.P. (C) No. 4484 OF 2020)

PARMINDER SINGH … Appellant(s)

VERSUS

HONEY GOYAL AND OTHERS … Respondent(s)

JUDGMENT

Paras 14.3 onwards of the Judgment 

14.3 It is a matter of common knowledge that large number of motor accident cases are settled in Lok Adalats at the stage of Tribunal and some percentage at the appeal level. In the Lok Adalat recently held in the Supreme Court some matters were disposed of. 14.4 As per the practice now followed, the cases in which Insurance Companies are held liable to indemnify the insured and pay compensation to the claimant(s), the amount is calculated and the same is either deposited by these companies in the Tribunal or in some small percentage of cases, transferred in the accounts of the claimants, if directed by the Tribunal in the award. Some of the companies are quick in depositing the compensation whereas some take time. In some cases, there may be intimation to the claimants regarding the deposit of the amount with the Tribunal, whereas in some there is no  notice. The fact remains that these are the awards, which are not challenged.

14.5 After the amount of compensation is deposited before the Tribunal, when the claimant(s) come to know about the same, they need to move an application for withdrawal of the same. Certainly, such an application will take some time in processing as the amount, which was deposited in the treasury has to be withdrawn from there. On an average the entire process takes about 15-20 days. Besides this, there may be delay in filing such application due to lack of knowledge of deposit. This process is besides the expenses to be incurred by the claimant(s). It is also a matter of common knowledge that with the increase in income level, the amount of compensation awarded by the Tribunal runs into lakhs of rupees and in some cases crores. The aforesaid process will certainly result in loss of interest to the claimant(s) for those 15-20 days and more in some cases, where the claimants had no knowledge about deposit of amount. The process of aforesaid disbursement by the Tribunal has its own risks of error or omission, especially considering the huge amount involved therein. Still there may be cases where the amount may remain with the Tribunal because of lack of knowledge to the claimant and/ or non- withdrawal thereof.

14.6 Apparently, no uniform practice is followed regarding deposit of the amount before the Tribunal, namely whether the amount will remain in government treasury or will be transferred in bank to be kept in interest bearing fixed deposit so that claimants do not suffer on account of interest for any delay in disbursement after deposit in Tribunal.

15. This is an era of technology, where now artificial intelligence is taking over. For conducting any bank transactions earlier we had to visit the bank branch in person and that too within the banking hours. Now all transactions can be affected 24x7, either sitting in the office or at home or even on mobile, while on the move. Practically the bank is in your mobile. Even cheques deposited in the banks for local clearance used to take couple of days. The outstation cheques took weeks together. Now, debits and credits in the accounts are instant with the help of technology.

15.1 Our country has done wonders in digital payment transactions. As per the website of Ministry of Finance, Government of India, starting in the F.Y. 2013-14 from 220 crores, the transactions have increased to 18,592 crores in the F.Y. 2023-24. The value of the transaction has grown from ₹952 lakh crores to ₹3,658 lakh crores. Unified Payment Interface (UPI) is an indigenous developed digital  payment system, which is easy to operate on a mobile. The UPI transactions have grown from 92 crores in the F.Y. 2017-18 to 13,116 crores in the F.Y. 2023-24 at CAGR7 of 129%. The UPI transactions are likely to cross 20,000 crores in the F.Y. 2024-25. It is a matter of common knowledge that now under various schemes of the Government, funds are transferred to the beneficiaries directly in their bank accounts. As per the rough estimate, about 80% of the adult population in the country have bank accounts.

16. A lot of matters come to the Court in which the amount is required to be paid to the litigants. Normal practice used to be, and still prevalent is to deposit the amount in court and thereafter to be withdrawn by the litigant. This process is not only followed in the cases where huge amount is involved but it is also seen prevalent even in the cases of payment of a small amount of maintenance to the wife, when fixed by the court either under Section 125 Cr.P.C. or under Section 12 of the Domestic Violence Act, 2005 or any other statute. Withdrawal of the amount deposited in the court by any litigant certainly needs time and also expenses.

Cumulative Annual Growth Rate  16.1 This Court in the case of Haryana State Industrial Development Corporation v. Pran Sukh and others 8 while considering a matter pertaining to payment of enhanced amount of compensation to the landowners, directed for transfering the same in their bank accounts. Relevant paras thereof are extracted below:

“With a view to ensure that the land owners are not fleeced by the middleman, we deem it proper to issue following further directions:

(i) The Land Acquisition Collector shall depute officers subordinate to him not below the rank of Naib Tehsildar, who shall get in touch with all the land owners and/or their legal representatives and inform them about heir entitlement and right to receive enhanced compensation.

(ii) The concerned officers shall also instruct the land owners and/or their legal representatives to open saving bank account in case they already do not have such account.

(iii) The bank account numbers of the land owners should be given to the land Acquisition Collector within three months.

(iv) The Land Acquisition Collector shall deposit the cheques of compensation in the bank accounts of the land owners.” (2010) 11 SCC 175.

16.2 Referring to the aforesaid judgement of this Court considering the fact that even at the stage of acquisition of land, compensation is required to be paid to the landowners, High Court of Punjab & Haryana in the case of Haryana State Industrial & Infrastructure Development Corporation Ltd. V. Smt. Krishna Rani & another9 directed that even that amount should also be transferred in their bank accounts directly. Normal practice, which is followed in that process is that the compensation amount is deposited in the government treasury and the process of withdrawal is followed by the land owners. The relevant paras of that judgment are extracted below:

“Taking lead from the aforesaid directions issued by Hon'ble the Supreme Court and finding that harassment of the land owners is not only at the stage when enhanced amount of compensation is to be paid, rather, it is even at the stage when the award by the Collector is announced as for the payment of compensation, the land owners are to run after the Patwaris or the officials in the office of the Collector.

xxx xxx xxx …….. The land owners can be asked to furnish the details of their bank accounts in response to the notices issued to them under Section 9 of the Act and in all undisputed claims, the amount should directly be transferred by the Collector in R.F.A. No.1492 of 2008 dated 08.04.2011  the bank accounts of the land owners immediately after announcement of the award. This will not only save harassment of the land owners but also time and energy of the officials of the office of the Collector.

The aforesaid system should not only be restricted to the State of Haryana, rather, the same system should be followed even in the State of Punjab and Union Territory, Chandigarh, where also the Collector at the time of issuance of notices under Section 9 of the Act should ask the land owners to furnish the details of their bank account particulars and the Collector shall be duty-bound to directly transfer the amount of compensation in their bank accounts in all the undisputed cases.”

17. The case in hand pertains to the compensation awarded under the Motor Vehicles Act. The general practice followed by the insurance companies, where the compensation is not disputed, is to deposit the same before the Tribunal. Instead of following that process, a direction can always be issued to transfer the amount into the bank account(s) of the claimant(s) with intimation to the Tribunal. 17.1 For that purpose, the Tribunals at the initial stage of pleadings or at the stage of leading evidence may require the claimant(s) to furnish their bank account particulars to the Tribunal along with the requisite proof, so that at the stage of passing of the award the Tribunal may direct that the amount of compensation be  transferred in the account of the claimant and if there are more than one then in their respective accounts. If there is no bank account, then they should be required to open the bank account either individually or jointly with family members only. It should also be mandated that, in case there is any change in the bank account particulars of the claimant(s) during the pendency of the claim petition they should update the same before the Tribunal. This should be ensured before passing of the final award. It may be ensured that the bank account should be in the name of the claimant(s) and if minor, through guardian(s) and in no case it should be a joint account with any person, who is not a family member. The transfer of the amount in the bank account, particulars of which have been furnished by the claimant(s), as mentioned in the award, shall be treated as satisfaction of the award. Intimation of compliance should be furnished to the Tribunal.

18. In some cases, where the compensation is awarded to minor claimant(s) or otherwise, the Tribunal directs for keeping a certain percentage of the amount in a fixed deposit. Such a direction can always be issued in the award itself to be complied with by the concerned bank. When the amount is transferred by the Insurance Company in the account of the claimant(s), it shall be the responsibility  of the bank to ensure that specified portion thereof is kept in the fixed deposit. Compliance is to be reported by the bank(s) to the Tribunal.

19. It is also a fact that substantial amount of compensation in motor accident cases remains deposited in the Tribunal as the claimant(s) may not have approached the Tribunal for release thereof for various reasons. Delay for any reason in release of compensation in motor accident cases by the Tribunal to the claimant(s), where the amount is deposited in Tribunal, as directed, results in loss of interest to the claimant(s). In case the aforesaid process is followed, the gap would be bridged. The real object of the beneficial legislation, namely to compensate for the loss of earning member of the family or for the injuries suffered by the claimant(s), will be achieved and compensation can be disbursed without any delay.

20. We may add that directions are being issued for bank transfer of the amount of compensation in motor accident cases, but the Courts/Tribunals can always follow this process in any matter, whenever any amount is to be paid by one party to another, however, ensuring proper compliance.

21. The Registry is directed to send a copy of this order to (1) the Registrars General of all the High Courts for placing the same  before the Chief Justice of the High Court for further circulation and compliance by the concerned Tribunals/Courts; and (2) the Directors of the National Judicial Academy and the State Judicial Academies.

22. Pending interlocutory applications (if any) shall stand disposed of.

..J. (J.K. MAHESHWARI) ……………….……………..J. (RAJESH BINDAL) New Delhi March 18, 2025.

Monday, 17 March 2025

Challenge to DNA test on child to prove adultery.

 APARNA AJINKYA FIRODIA V. AJINKYA ARUN FIRODIA

2023 INSC 146 (20 February 2023)
Justices:

Justice V. Ramasubramanian, Justice B. V. Nagarathna

Question(s):

Whether DNA test of a child can be directed in divorce proceedings to prove the ground of adultery.

Factual Background:
  • The husband (Respondent) in an ongoing divorce proceeding filed an application to ascertain the paternity of the second child born to his wife during their marriage by a deoxyribonucleic acid test (“DNA test”). The Family Court allowed it and the decision was affirmed by the Bombay High Court.

  • The wife (Petitioner) approached the Supreme Court against the decision of the Bombay High Court.

Decision of the Supreme Court:
  • The Supreme Court held that in this case it is not in the best interest of the child to allow the DNA test because the ultimate object for demanding DNA test is not for determining parentage of the child but for proving allegations of adultery (extramarital relations) during the marriage, which can be proved by adducing any other evidence. The Court also held that children have the right not to have their legitimacy questioned frivolously before a court of law. This is an essential attribute of their right to privacy. The judgment of the Court was authored by Justice B.V. Nagarathna and signed by Justice V. Ramasubramanian. Justice V. Ramasubramanian also wrote a separate concurring opinion.

Reasons for the Decision:

DNA Tests of Children : Principles

  • Justice Nagarathna summarised the principles of when a Court should direct a DNA test on a minor (¶12):

  • DNA tests of children shall not be conducted in a routine manner in case of matrimonial disputes unless there is no other way of proving infidelity .

  • Section 112 of Indian Evidence Act, 1872 provides that a child born during a valid marriage is considered to be the legitimate child of the husband. A DNA test of a child born during continuance of a valid marriage can only be directed when the husband can prove he did not have access to the wife.

  • No DNA Test is justified when paternity of a child is not directly in issue, but is merely collateral to the proceeding .

  • While directing DNA tests to prove adultery, the Court should consider the consequences on the children born out of adultery, including inheritance-related consequences and social stigma.

Right to Privacy of Children

  • The Supreme Court noted that a child's right to privacy is not equal to that of an adult. However, children have their own identity, and Article 8 of the United Nations Convention on Rights of Child provides children with an express right to preserve their identity (¶21). The Court noted that one's genetic information is personal and intimate and is protected by the right to privacy applicable to children(¶16). The Court held that the details of their parentage form an essential attribute of a child's identity and therefore they should not be challenged frivolously before the courts (¶21).

Best interests of a child

  • The Supreme Court stated that the interest of the child should be given primary consideration in actions involving children. The Court noted that a revelation of illegitimacy of a child through a DNA test can not only cause confusion in the mind of the child but a quest to find out who is his/her real father (¶22). The Court observed that not knowing who one’s father is creates a mental trauma in a child, and may lead to a bittering relationship between the child and parents (¶22.3). Further, this also creates lots of social stigma towards both the child and the mother. Hence, the Court held that a parent may, in the best interests of the child, choose not to subject a child to a DNA test (¶22.3).

  • Justice V. Ramasubramanian in his separate opinion observed that whether DNA tests should be allowed or not should be decided by looking from the child's perspective and not from the perspective of the parents (¶33 J. Ramasubramanian). The child cannot be used as a means to prove adulterous (out of marriage) relations. The adulterous conduct of the wife can be proved by the respondent by advancing other evidence but the identity of the child should not be compromised (¶33 J. Ramasubramanian).

Adverse inference cannot be drawn

  • J. Ramasubramanian in his separate opinion took note of Illustration (h) under Section 114 of Indian Evidence Act, 1872. It says that if a man refuses to answer a question which he is not compelled to answer by law, the Court may presume that the answer, if given, would be unfavourable to him (¶16 J. Ramasubramanian). J. Ramasubramanian held that if the wife raises an objection as to the DNA test of the child for her benefit, then the presumption under Section 114, illustration (h) can be raised against her. However, if the wife raises objections as to the DNA test of the child in the capacity of a mother for the benefit of her child then no presumption under the said provision can be drawn against her (¶28 J. Ramasubramanian).