Dr. Ashok Dhamija
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Dr. Ashok DhamijaAdvocateIt is necessary that the mutation chain in respect of a property should be complete and unbroken. You have said that initially the property stood in the name of R in the mutation records. R had sold it to Q and then Q sold it to P. Now, without a copy of the sale deed between R and Q, and also without there being any mutation entry of this transfer between R and Q, how will anybody know for sure whether R had actually sold the property to Q? In the absence of proof of title of Q to this property, how he could sell this property to P, and how did P purchase it from Q?
In fact, generally, when a sale transaction takes place in respect of an immovable property, the buyer takes all previous sale deeds from the seller to complete the chain. At least, all sale deeds to complete the chain from the last mutation entry should be taken. Therefore, it is not understood why did P not ask for previous sale deeds in the chain.
In the absence of the complete chain, the mutation authorities have no way of finding out whether the last sale deed is genuine. Therefore, P should get the sale deed between Q and R and produce it before the authorities concerned for mutation.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 2, 2017 at 8:46 am in reply to: Is consent needed from other legal heirs for selling property acquired by will? #2501Dr. Ashok DhamijaAdvocateSince it is the self-acquired property of the father, he can full discretion to give it to anyone by a validly executed will. Therefore, if the will is otherwise validly executed, the son will get full rights in respect of the property and he will not need consent from his sisters or any other heir for selling such property.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 11:22 pm in reply to: What is difference between sale deed and conveyance deed? #2498Dr. Ashok DhamijaAdvocateIn the case of CGT v. N.S. Getti Chettiar, (1971) 2 SCC 741, the Supreme Court held that “conveyance” means transfer of ownership. Thus, in law, conveyance basically implies transfer of legal title of a property from one person to another.
A conveyance deed thus transfers legal title of a property from one person to another. Such transfer can be on account of sale, gift, exchange, etc.
Sale deed is also basically a conveyance deed, but it is only when the transfer is by way of sale of property. Therefore, if a property is transferred from one person to another by way of sale, it may be called a sale deed or a conveyance deed; in such situation, both mean basically the same thing. But, a conveyance deed may also happen by way of other types of transfers of property, such as by way of gift of property or exchange of property, etc.
Thus, every sale deed is also a conveyance deed, but the reverse may not always be true.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 10:56 pm in reply to: Can accused be examined under Section 161 CRPC by police during investigation? #2495Dr. Ashok DhamijaAdvocateIt is noteworthy that the main body of Section 161(1) of the Criminal Procedure Code clearly states that “Any police officer making an investigation … … may examine orally any person supposed to be acquainted with the facts and circumstances of the case.”
It clearly lays down that the investigating officer may examine any person under Section 161 Cr.P.C. who is supposed to be acquainted with the facts and circumstances of the case. An accused person will also come within the scope of this expression. Therefore, an accused person can also be examined by the investigating officer under Section 161 Cr.P.C.
Sub-section (2) of Section 161 provides protection to accused / suspects during such examination by laying down that such person shall not be bound to answer the questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
Let me point out that long back, in the case of Pakala Narayana Swami v. Emperor, AIR 1939 PC 47, the Privy Council had held that “any person” in Section 161 Cr.P.C., would include persons then or ultimately accused.
The view was approved by the Supreme Court in the case of Mahabir Mandal v. State of Bihar, (1972) 1 SCC 748.
Likewise, in the case of Nandini Satpathy v. P.L. Dani, (1978) 2 SCC 424 : 1978 Cri LJ 968 : AIR 1978 SC 1025, the Supreme Court held that “any person supposed to be acquainted with the facts and circumstances of the case” [in Section 161 of the Cr.P.C.] includes an accused person who fills that role because the police suppose him to have committed the crime and must, therefore, be familiar with the facts.
Therefore, it should be unequivocally clear that an accused person can also be examined by police under the provisions of Section 161 Criminal Procedure Code.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 9:47 pm in reply to: 482 Crpc petition in High Court where conviction without hearing accused #2492Dr. Ashok DhamijaAdvocateIt is a conviction from the Magistrate court, against which there is a provision for appeal in the Sessions Court. Therefore, it would not be possible to approach the high court by way of a petition under Section 482 Criminal Procedure as an alternative remedy of appeal to Sessions Court is available.
In your appeal to the Sessions Court, in addition to your arguments on merits, you can also show all irregularities in the trial, including denial of proper opportunity of being heard. The appellate court has sufficient powers to take all corrective actions and do justice in the appeal. So, do not worry about filing an appeal.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateAs per the provisions of Section 54 of the Transfer of Property Act, 1882, and also as per the provisions of Section 17 of the Registration Act, 1908, sale of an immovable property whose value is more than Rs. 100 can be made only by way of a registered document. Thus, registration is compulsory for sale of an immovable property if its value exceeds Rs. 100.
In view of this, mutation on the basis of unregistered sale deed of an immovable property (presuming that its value is more than Rs. 100), will not be possible. It is required to be registered first.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 9:33 pm in reply to: Permission to add additional pleadings in SLP in Supreme Court #2490Dr. Ashok DhamijaAdvocateYou can file an I.A. / Crl.M.P. (depending upon whether it is SLP Civil or SLP Criminal) in the Supreme Court seeking permission to file additional pleadings, giving grounds as to why you need to file these additional pleadings. If the Court permits you, then these additional pleadings may be filed. Generally speaking, if you are able to give some reasonable explanation as to why you need to file these additional pleadings, the Supreme Court may permit the same.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateThe telecom operators are not permitted to record the actual phone conversations and save them on their servers. Only those calls can be recorded which are allowed to be intercepted by competent authorities authorized under the Telegraph Act, 1885, or under the Information Technology Act, 2000. And, nowadays, most of such calls also may be directly intercepted and recorded by the concerned authorities, such as law enforcement agencies, instead of the telecom service providers doing it on their behalf.
Therefore, it may not be possible to obtain actual call recordings from the telecom operators.
However, the telecom operators maintain call record details, i.e., merely the details of the incoming and outgoing phone numbers, date/time/duration of the call, etc. (but not the actual phone conversations). Usually, the telecom service providers are not supposed to provide call record details to private parties; they supply such information only to police and other law enforcement agencies and may be under court orders. You may request your telecom service provider for call record details of your own mobile phone and they may perhaps give that to you.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateI think it should be possible to accept the pension under protest on the ground that you do not have any other means of livelihood, since now you have lost the salary also. You may undertake to repay the pension amount if you win the appeal against compulsory retirement. Even otherwise, merely because you file the appeal against the punishment of compulsory retirement, in the absence of a stay order, the department has to process the pension payment as per its own order of compulsory retirement. The department cannot deprive you of the pension if it due under the rules, as per its own order since the punishment imposed is not dismissal or removal but compulsory retirement wherein pension is admissible.
You have a right to challenge the penalty before the appellate authority or in the appropriate court or tribunal, as the case may be. That right cannot be taken away just because you are accepting the pension under protest.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateSection 139-A(7) of the Income Tax Act, 1961, lays down that: “No person who has already been allotted a Permanent Account Number under the new series shall apply, obtain or possess another Permanent Account Number.”
So, it is not permissible for a person to have two or more PAN (Permanent Account Number) Cards.
For violation of the above provision, a penalty of Rs. 10,000 may be imposed under the provisions of Section 272-B of the Income Tax Act by the assessing officer, by giving the person concerned (who has multiple PAN cards) an opportunity of being heard.
If a person has got two PAN cards by mistake, he should surrender one PAN card immediately to the Income Tax authorities in accordance with the procedure in this regard.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 2:48 pm in reply to: Procedure after getting anticipatory bail – what should be done #2480Dr. Ashok DhamijaAdvocateAn order of grant of anticipatory bail under Section 438 of the Criminal Procedure Code basically is “a direction under this section that in the event of such arrest he shall be released on bail”. What it implies is that as and when you are arrested, you shall be released on bail in terms of the order of anticipatory bail.
The police may already be aware of the anticipatory bail order since the court would generally pass the anticipatory bail order after hearing the public prosecutor who represents the investigating officer.
In any case, it is not expected that you should yourself go and approach the police after getting the anticipatory bail order. But, even if you do so, that should be alright. Otherwise, as and when the police officer concerned feels the need to arrest you, he would have to release you on bail in terms of the order of anticipatory bail passed by the court. So, you may better wait.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateFrom your question, it appears that an FIR is yet to be registered against you on the complaint of your wife. In these circumstances, at this stage when the FIR is yet to be registered, it may be difficult to get anticipatory bail. While there is no complete prohibition under Section 438 Cr.P.C. to grant anticipatory bail where FIR is yet to be registered, usually the court would see whether there is a reasonable apprehension of arrest in a non-bailable offence which should have been committed already (and not merely a future event or a speculative incident) even if the FIR is still to be registered. Under Section 438 Cr.P.C., an application for anticipatory bail can be made “(w)here any person has reason to believe that he may be arrested on accusation of having committed a non-bailable offence…”. An apprehension of arrest on accusation is the sine qua non for taking recourse to S. 438 Cr.P.C. An accusation may exist before a case is registered by the police. Thus the apprehension must be based on real belief and the arrest must be imminent.
As a condition precedent to its application, S. 438 Cr.P.C. makes it incumbent that there must be an existing accusation of having already committed a non-bailable offence. On such an accusation there must be reason to believe that applicant may be arrested. A mere apprehension of arrest will not suffice. That must be on the basis of an accusation of having committed a non-bailable offence. That means the apprehension must be reasonable and based on existing facts. Imaginary accusation or future possible accusations will not be sufficient. On such accusations which are yet to come there cannot be any reasonable apprehension of an existing threat of arrest. It is a condition precedent for an application under S. 438 that there must be an existing reasonable apprehension of arrest on an existing accusation of having already committed a non-bailable offence prior to the point of time of filing the application. That accusation will have to be specified in the application and the direction to be sought for is for release in case of arrest in connection with that accusation. Protection under S. 438 could be claimed only against specified accusation and not against possible arrest in general against unspecified existing accusations or accusations likely to arise in future. What is contemplated is not a blanket protection.
On the other hand, if the FIR has already been registered against you under Section 498-A of IPC, then you may apply for anticipatory bail either with the Sessions Court or with the High Court. Preferably, you should file this application before the Sessions Court.
But, if the FIR is yet to be registered then generally speaking, your application for anticipatory bail may not be entertained, though in such cases, sometimes the court may verify from the police and the court may in its discretion direct the police to give you advance intimation of a few days before making arrest (as and when it is about to happen) so that you could apply for anticipatory bail in that situation.
[Note: Some contents in the above reply have been taken from my book: Law of Bail, Bonds, Arrest and Custody (2009 Edition) by Dr. Ashok Dhamija, appx. 1625 pages, published by LexisNexis Butterworths Wadhwa, New Delhi (ISBN: 978-81-8038-440-0).]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateFirstly, it is not understood whether you do some background check before employing a person. Usually, a woman employee would not complain like this in the very beginning of her job. There may have been some incident, knowingly or unknowingly which she might have noticed but you might not have noticed. Try first to discuss with her and see what her grievance is and try to solve her problem amicably. If it is necessary, and if you find that she is a complete nuisance and without any reason she is threatening you, you may consider putting an end to her employment to avoid future problems since a person who threatens or blackmails others without a reason cannot be good for the work discipline.
You should have CCTV in your office covering all vulnerable areas. Let it record all events in your office. Secondly, if the woman employee threatens you or blackmails you, it can also be recorded in CCTV or otherwise. Take some other senior employees of the office, preferably woman employees, in confidence about this incident and discuss the issue with them to find out some proper solution. Keep proper office record of the work done by her in an unobtrusive manner. If needed, you may even inform the police about her threats of Section 354 IPC.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
August 1, 2017 at 8:48 am in reply to: Difference between unregistered will and registered will in India #2473Dr. Ashok DhamijaAdvocateIndian Succession Act, 1925, defines “will” to mean the legal declaration of the intention of the testator with respect to his property which he desires to be carried into effect after his death. Testator is the person who wants to make the will in respect of his property.
Registration of will is not compulsory. It is optional at the discretion of the testator. However, if a will is registered then it gives that much extra evidence of its genuineness. If a dispute arises among the successors about the genuineness of the will after the death of the testator, registered will definitely have a better legal backing. Therefore, a registered will is of better help in case of a future dispute, though, of course, even a registered will can be challenged.
Will is registered in the office of the sub-registrar.
Section 63 of the Succession Act, shown below, lays down how a will is to be executed and this applies even to an unregistered will:
“Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman so employed or engaged, or a mariner at sea, shall execute his will according to the following rules:—
(a) The testator shall sign or shall affix his marks to the will, or it shall be signed by some other person in his presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for him, shall be so placed that it shall appear that it was intended thereby to give effect to the writing as a will.
(c) The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his mark to the will or has seen some other person sign the will, in the presence and by the direction of the testator, or has received from the testator a personal acknowledgment of his signature or mark, or of the signature of such other person; and each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that more than one witness be present at the same time, and no particular form of attestation shall be necessary.”
So, even an unregistered will has to be attested by two or more witnesses since the above provision applies to all wills whether registered or unregistered. But, the registered will has the additional advantage of being registered.
In view of what is mentioned above, it is definitely better to have a registered will rather than an unregistered will.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
Dr. Ashok DhamijaAdvocateIt is very difficult to comprehend your question. What is objectionable has not been mentioned. Remedy will be based on the content which is supposed to be objectionable. In any case, if it relates to some criminal matter (such as defamation), as it appears, you may file a private complaint in the Magistrate court.
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
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