Limitation for revocation of Probate is three years

Application of Limitation Act to Probate Proceedings

Court in Kerala State Electricity Board, Trivandrum v. T.P. Kunhaliumma, AIR 1997 SC 282 has held that any application under any Act, including a Writ Petition under any Special Act will fall under within Article 137 of the Limitation Act and have a limitation period of three years.

“22. The changed definition of the words “applicant” and “application” contained in Section 2(a) and 2(b) of the 1963 Limitation Act indicates the object of the Limitation Act to include petitions, original or otherwise, under special laws. The interpretation which was given to Article 181 of the 1908 Limitation Act on the principle of ejusdem generis is not applicable with regard to Article 137 of the 1963 Limitation Act. Article 137 stands in isolation from all other Articles in Part I of the third division. This Court in Nityanada Joshi’s case (supra) has rightly thrown doubt on the two Judge Bench decision of this Court in Athani Municipal Council case (supra) where this Court construed Article 137 to be referable to applications under the Civil Procedure Code. Article 137 includes petitions within the word “applications.”

Continue reading “Limitation for revocation of Probate is three years”

Theft of immovable property.

Squatting in property if a theft?

Ronald Alexander Hobby (“Petitioner”) was charged with, and convicted of, theft of property valued in excess of $100,000 and related offenses arising out of his unauthorized occupancy of a home for a period of approximately seven months. He held on to property on the basis of a lease document from the landlady, who denied its execution, on oath.

Defence disputing theft:

Petitioner contends that the evidence is insufficient to support a conviction for theft “in any amount.” Petitioner argues that a theft of a house did not occur, as the house was not asported to another location, and thus, the evidence is insufficient “to prove the mode of theft specifically set forth in the indictment.” Alternatively, Petitioner contends that the State failed to prove that he deprived Brathwaite (Landlady) and Severn Bank (Mortgagee) of the property through deception because there was no prospective purchaser or lessee “displaced” as a result of his occupancy; i.e., there was no deprivation and thus no theft. Petitioner also asserts that the State failed to prove that he exerted unauthorized control over the property, as his action in occupying the home as a “squatter” did not constitute theft under the theory of “exerting unauthorized control.”<!–nextpage–>

Discussion/enunciation of law of Maryland about theft:

C.L. § 7-104 of the Maryland Code prohibits theft committed in several ways, including the following two: (a) Unauthorized control over property. – A person may not willfully or knowingly obtain or exert unauthorized control over property, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. (b) Unauthorized control over property – By deception. – A person may not obtain control over property by willfully or knowingly using deception, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. “Obtain” is defined, in relevant part, in C.L. § 7-101(g) as “(1) in relation to property, to bring about a transfer of interest in or possession of the property[.]” “Property,” as used in the theft statute, “means anything of value[,]” C.L. § 7-101(i)(1), and includes “real estate” as well as “a thing growing on or affixed to, or found on land, or part of or affixed to any building[.]” C.L. § 7-101(2)(i) and (2)(vi). Contra Sheffield v. State, 708 So.2d 899, 900, 902, 906, 910 (Ala. Crim. App. 1997), cert. denied, 708 So.2d 911 (Ala. 1997) (The Court of Criminal Appeals of Alabama held that a person could not steal real property, specifically an “interest in land,” because Alabama‟s theft statute failed to explicitly include “real property” within the definition of “property”; the Court further observed: “[I]n most states, the evolution of [the types of property that can be the subject of theft and theft-related offenses] has produced a broader definition of „property‟ than it has in Alabama–a definition that, in most instances, explicitly and specifically includes real property.”). In Maryland, the common law crime of larceny was traditionally defined as “the intentional taking, without legal warrant, of the personal property of another with the unlawful intention to deprive the owner of such property.” Murray v. State, 214 Md. 383, 386, 135 A.2d 314, 315 (1957) (citation and internal quotation marks omitted) (emphasis added). “[M]odern [theft] statutes[, however,] have generally covered other kinds of property as well.” Wayne R. LaFave, Substantive Criminal Law § 19.4 (2d ed.) (updated Oct. 2013). In Maryland, “[b]y chapter 849 of the Acts of 1978, . . . the General Assembly . . ., effective July 1, 1979, consolidated a number of theft-related offenses . . . into a single newly created statutory offense known as theft.” Jones v. State, 303 Md. 323, 326, 493 A.2d 1062, 1063 (1985).3 By Chapter 849 of the Acts of 1978, the General 3 The consolidated theft statute “combin[ed] what were previously seven separate larceny offenses into the one crime of theft[,]” including “larceny, larceny by trick, larceny after trust, embezzlement, false pretenses, shoplifting, and receiving stolen (Continued…) Assembly expanded the common law definition of “property” to include, among other things, “real estate” and “things growing on or affixed to, or found on land, or part of or affixed to any building[.]” 1978 Md. Laws 2466. That definition remains in force today. The theft statute distinguishes between “personal property” and “property,” as seen in C.L. § 7-104(c), which, in contrast to C.L. § 7-104(a) and (b), narrowly prohibits possessing stolen personal property; specifically, pursuant to C.L. § 7-104(c), “[a] person may not possess stolen personal property knowing that it has been stolen, or believing that it probably has been stolen[.]” (Emphasis added). The modern consolidated theft statute does not distinguish, however, between “movable” and “immovable” property, as does the Model Penal Code. See Model Penal Code § 223.2. In addition, the modern consolidated theft statute does not require asportation4 of property. See Charles E. Moylan, Jr., Maryland‟s Consolidated Theft Law and Unauthorized Use § 4.2, 24 (2001) (“Significantly missing from the current definition of theft‟s proscribed acquisition, however, are common law larceny‟s requirements of a trespassory taking (the caption) and a carrying away (asportation).”)

It was concluded:

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We reject Petitioner‟s argument that theft of the house did not occur as the house remains at its original location and was not asported to another location. Petitioner confuses the common law crime of larceny with theft under the modern consolidated theft statute. Asportation, or the carrying away or removal of property, is not required under the modern consolidated theft statute. See C.L. § 7-104; Moylan, supra, at 24. Stated otherwise, the State is not required to demonstrate that Petitioner carried away the house from its original location to prove that Petitioner committed theft of the house. And, the indictment did not aver that Petitioner carried away the home. As to theft of the house pursuant to C.L. § 7-104(b)–theft by deception–viewing the evidence in the light most favorable to the State (as we must), we are convinced that the evidence is sufficient to support the conclusion that Petitioner committed theft by obtaining control and possession of the property through deception, and, specifically, that Petitioner brought about the physical transfer of possession of the house located at 2742 Kirk Drive through deception.

To be a dwelling, the place must be of human habitation, that is, a “place to sleep in[.]”

A structure does not become a dwelling until someone occupies it. Once a dwelling, however, the structure does not lose its character as a dwelling simply because it is left vacant for a time. The length of the vacancy, moreover, does not, of itself, disturb the character of the place as a dwelling. “Certain it is that the dweller and his entire household may be away for months, without depriving the house of its character as his dwelling.” Id. at 127, 962 A.2d at 1002 (citations omitted). We observed: To be sure, burglary does not require that the dwelling be occupied by its residents at the time of the breaking; however, the law distinguishes a temporarily unoccupied dwelling house from a building [that], although at times used as a dwelling, has at the time of the breaking been abandoned by its occupants. The former is a proper subject of burglary; the latter is not.

Source: Hobby v. State  [Maryland (USA) Court of Appeal]

Arbitration clause can not oust tenancy protection law

Arbitration clause in Rent Agreement

Facts of the Tenancy eviction case:

The appellants have inducted the respondents as tenants in respect of a shop room measuring 600 sq. feet at HA-3, Sector-3, Salt Lake City, Kolkata, and paying a monthly rent to the appellants. In respect of the tenancy, the appellants and the respondents have executed an unregistered tenancy agreement which has been notarized on 10.11.2003. On 06.03.2008, the appellants, through their Advocates, served a notice on the respondents terminating the tenancy and asking them to vacate the shop premises and the notice stated that after April, 2008 the relationship of landlord and tenant between the appellants and the respondents shall cease to exist and the respondents will be deemed to be trespassers liable to pay damages at the rate of Rs.500/- per day for wrongful occupation of the shop. The respondents, however, did not vacate the shop premises and the appellants filed Title Suit No.89 of 2008 against the respondents for eviction, arrears of rent, arrears of municipal tax, mesne profit and for permanent injunction in the Court of the Civil Judge (Senior Division), 2nd Court at Barasat, District North 24-Parganas in the State of West Bengal. In the suit, the respondents filed a petition under Section 8 of the Arbitration and Conciliation Act, 1996 (for short ‘the 1996 Act’) stating therein that the tenancy agreement contains an arbitration agreement in clause 15 and praying that all the disputes in the suit be referred to the arbitrator. By order dated 10.06.2009, the learned Civil Judge dismissed the petition under Section 8 of the 1996 Act and posted the matter to 10.07.2009 for filing of written statement by the defendants (respondents herein).

Aggrieved, the respondents filed an application (C.O. No.2440 of 2009) under Article 227 of the Constitution of India before the Calcutta High Court and contended that the tenancy agreement contains an arbitration agreement in Clause 15, which provides that any dispute regarding the contents or construction of the agreement or dispute arising out of the agreement shall be settled by Joint Arbitration of two arbitrators, one to be appointed by the landlords and the other to be appointed by the tenants and the decision of the arbitrators or umpires appointed by them shall be final and that the arbitration will be in accordance with the 1996 Act and, therefore, the learned Civil Judge rejected the petition of the respondents to refer the disputes to arbitration contrary to the mandate in Section 8 of the 1996 Act. The appellants opposed the application under Article 227 of the Constitution of India contending inter alia that the dispute between the appellants and the respondents, who are landlords and tenants respectively, can only be decided by a Civil Judge in accordance with the provisions of the West Bengal Premises Tenancy Act, 1997 (for short ‘the Tenancy Act’). By the impugned judgment dated 16.04.2010, the High Court has held that in view of the decisions of this Court in Hindustan Petroleum Corporation Ltd. v. Pinkcity Midway Petroleums [(2003) 6 SCC 503], Agri Gold Exims Ltd. v. Sri Lakshmi Knits & Wovens & Ors. [(2007) 3 SCC 686] and Branch Manager, Magma Leasing & Finance Limited & Anr. v. Potluri Madhavilata & Anr. [(2009) 10 SCC 103], the Court has no other alternative but to refer the disputes to the arbitrators to be appointed by the parties as per the arbitration agreement. The High Court, however, has observed in the impugned judgment that if any dispute is raised regarding arbitrability of such dispute before the arbitral tribunal, such dispute will be decided by the arbitral tribunal.

Relevant Rent/Tenancy Law:

The relevant portion of Section 6 of the Tenancy Act 1997 is quoted hereinbelow:

“6. Protection of tenant against eviction.—(1) Notwithstanding anything to the contrary contained in any other law for the time being in force or in any contract, no order or decree for the recovery of the possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, except on a suit being instituted by such landlord on one or more of the following grounds………..”
[Note the words in red.]

 

Supreme Court decided that arbitration clause is overridden by Tenancy Act:

It will be clear from the language of Section 6 of the Tenancy Act 1997 quoted above that ‘notwithstanding anything to the contrary contained in any contract’, no order or decree for recovery of possession of any premises shall be made by the Civil Judge having jurisdiction in favour of the landlord against the tenant, ‘except on a suit being instituted by such landlord’ on one or more grounds mentioned therein. It is, thus, clear that Section 6 of the Tenancy Act overrides a contract between the landlord and the tenant and provides that only the Civil Judge having jurisdiction can order or decree for recovery of possession only in a suit to be filed by the landlord.

In this case, there is an arbitration agreement in clause 15 of the tenancy agreement, which provides that any dispute regarding the contents or construction of the tenancy agreement or dispute arising out of the tenancy agreement shall be settled by arbitration in accordance with the provisions of the 1996 Act. But the words ‘notwithstanding anything in any contract’ in Section 6 of the Tenancy Act, will override the arbitration agreement in clause 15 of the tenancy agreement where a suit for recovery of possession of any premises has been filed by a landlord against the tenant. Such a suit filed by the landlord against the tenant for recovery of possession, therefore, cannot be referred under Section 8 of the 1996 Act to arbitration. In fact, sub-section (3) of Section 2 of the 1996 Act expressly provides that Part-I which relates to ‘arbitration’ where the place of arbitration is in India shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. Section 6 of the Tenancy Act is one such law which clearly bars arbitration in a dispute relating to recovery of possession of premises by the landlord from the tenant. Since the suit filed by the appellants was for eviction, it was a suit for recovery of possession and could not be referred to arbitration because of a statutory provision in Section 6 of the Tenancy Act.

The High Court, therefore, was not correct in coming to the conclusion that as per the decisions of this Court in the aforesaid three cases, the Court has no alternative but to refer the parties to arbitration in view of the clear mandate in Section 8 of the 1996 Act. On the contrary, the relief claimed by the appellants being mainly for eviction, it could only be granted by the “Civil Judge having jurisdiction” in a suit filed by the landlord as provided in Section 6 of the Tenancy Act. The expression “Civil Judge having jurisdiction” will obviously mean the Civil Judge who has jurisdiction to grant the other reliefs: decree for arrears of rent, decree for recovery of arrears of proportionate and enhanced municipal taxes, a decree for mesne profits and a decree for permanent injunction claimed in the suit.

[Source: Ranjit Kumar Bose v. Anannya Chowdhury]

Death Sentence and Mercy Petition: Balancing the Justice.

Death SentenceBalancing between the Death Sentence, Mercy and Speedy Justice.

Execution of death sentence by hanging: Validity.

[T]he State has discharged the heavy burden which lies upon it to prove that the method of hanging prescribed by Section 354(5) of the CrPC does not violate the guarantee right contained in Article 21 of the Constitution. The material shows that the system of hanging which is now in vogue consists of a mechanism which is easy to assemble. The preliminaries to the act of hanging are quick and simple and they are free from anything that would unnecessarily sharpen the poignancy of the prisoner’s apprehension. The chances of an accident during the course of hanging can safely be excluded. The method is a quick and certain means of executing the extreme penalty of law. It eliminates the possibility of a lingering death. Unconsciousness supervenes almost instantaneously after the process is set in motion and the death of the prisoner follows as a result of the dislocation of the cervical vertebrae. Continue reading “Death Sentence and Mercy Petition: Balancing the Justice.”

Proof of attestation of Will.

Will: Conditions for proper and legal attestation.

Should the two attesting witnesses be present at the same time when the will is executed?

Evidence Act, 1872; Section 68.

View of Kerala High Court:

For valid attestation unlike the English Law, as it stood before the amendment of English Wills Act, 1837 Indian Law does not insist that the two attesting witnesses also should be present at the same time when the will is executed. It is possible for executing a will with proper attestation by the attesting witnesses signing at different times and without knowing each other. Since the requirement of Section 63 Succession Act is only that there should be two attesting witnesses in the will and that there is no insistence that the attesting witnesses also should be present at the same time, we find it difficult to extend the provision of Section 68 of the Evidence Act so as to make it obligatory even when only one attesting witness is called and the propounder is not in a position to call the other witness, to elicit a fact which the attesting witness called may not be in a position to speak honestly before the court. We feel that such an insistence would only be an addition of an unnecessary technicality and that it may lead to witness called for proving, execution and attestation of wills deposing falsehood before the court. In this view, we find it difficult to follow the decisions reported in AIR 1946 Bom 12; AIR 1949 Bom 266, AIR 1974 AP 13; AIR 1981 Mad 252.