[Dr. Ashok Dhamija]

Sanction for prosecution in a corruption case is required to be taken from the competent authority under the provisions of Section 19 of the Prevention of Corruption Act, 1988.

No time limit has been fixed under the above Act for grant of sanction by the competent authority. However, there are directions from the Supreme Court to grant sanction in a time-bound manner.

In the case of Vineet Narain v. Union of India, (1998) 1 SCC 226, the Supreme Court issued the following guidelines for time limit for grant of sanction in corruption cases:

“Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.”

Likewise, in the case of Subramanian Swamy v. Manmohan Singh, (2012) 3 SCC 64 : AIR 2012 SC 1185 : 2012 Cri LJ 1519 : (2012) 1 SCC (Cri) 1041, the Supreme Court held that:

“Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG’s office. In future every competent authority shall take appropriate action on the representation made by a citizen for sanction of the prosecution of a public servant strictly in accordance with the direction contained in Vineet Narain case.”

Thus, there is a time limit of 3 months for grant of sanction for prosecution in corruption cases, as laid down by the Supreme Court. This time limit is extended up to 4 months, when consultation is required with the Attorney General (AG) or any other law officer in the AG’s office.

     

---

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 Dhamija]

It is a controversial topic and its answer would generally depend also upon the relevant law governing the concerned cooperative housing society as also the provisions in the bye-laws of the housing society concerned.

However, it is pertinent to point out that in the case of Zoroastrian Coop. Housing Society Ltd. v. District Registrar, Coop. Societies (Urban), (2005) 5 SCC 632 : AIR 2005 SC 2306, the Supreme Court has held that it was permissible to restrict the membership of the Zoroastrian Coop. Housing Society Ltd. only to those persons who are Parsis, i.e., belong to a particular religion / community only.

In the above case, the Bye-law 7 of the Bye-laws of the said housing society restricted membership of the hosing society only to members of Parsi community. The society had refused permission to the Respondent No. 2 to transfer his plot in the society to a person who was not a Parsi.

The Supreme Court repelled the argument that the right to equality was violated by denying membership of the society to a person who was not a Parsi. It was held as under:

“It is true that in secular India it may be somewhat retrograde to conceive of cooperative societies confined to a group of members or followers of a particular religion, a particular mode of life, a particular persuasion. But that is different from saying that you cannot have a cooperative society confined to persons of a particular persuasion, belief, trade, way of life or a religion. A cooperative society is not State unless the tests indicated in Ajay Hasia are satisfied. There is no case here that the appellant Society satisfies the tests laid down by Ajay Hasia so as to be considered to be State within the meaning of Article 12 of the Constitution. The fundamental rights in Part III of the Constitution are normally enforced against State action or action by other authorities who may come within the purview of Article 12 of the Constitution. It is not possible to argue that a person has a fundamental right to become a member of a voluntary association or of a cooperative society governed by its own bye-laws. So long as this position holds, we are of the view that it is not possible, especially for a Registrar who is an authority under the Cooperative Societies Act, to direct a cooperative society to admit as a member, a person who does not qualify to be a member as per the bye-laws registered under the Act. Nor can a Registrar direct in terms of Section 14 of the Act to amend the bye-laws since it could not be said that such an amendment, as directed in this case is necessary or desirable in the interests of the appellant Society. What is relevant under Section 14 of the Act is the interests of the society and the necessity in the context of that interest. It is not the interest of an individual member or an aspirant to a membership.”

The Supreme Court held that no citizen has a fundamental right under Article 19(1)(c) to become a member of a voluntary association or a cooperative society. His right is governed by the provisions of the statute. So, the right to become or to continue being a member of the society is a statutory right. On fulfilment of the qualifications prescribed by the statute, Rules and the approved bye-laws of the society concerned does a person become eligible for membership thereof. Hence, the action of the Society in refusing membership to a person has to be tested on the anvil of the provisions of the Act, the Rules and its bye-laws. The bye-laws of the appellant Society had already been approved on the basis that they were consistent with the Act and the Rules. Normally, the bye-laws of a cooperative society do not have the status of a statute and are only the rules which govern the internal management or administration of a society and they are of the nature of articles of association of a company incorporated under the Companies Act. They may be binding between the persons affected by them but they do not have the force of a statute. It may therefore be possible in a given case to point out that a particular bye-law even if approved, such as Bye-law 7 of the appellant Society, is against the terms of the Act or the Rules governing cooperative societies. In so testing, the search should be to see whether a particular bye-law violates the mandate of any of the provisions of the Act or runs counter to any of its provisions or to any of the Rules. There is nothing in the Gujarat Cooperative Societies Act and the Gujarat Cooperative Societies Rules restricting the rights of citizens to form a voluntary association and get it registered under the Cooperative Societies Act confining its membership to a particular set of people recognised by their profession, their sex, their work or the position they hold or with reference to their beliefs, either religious or otherwise. Hence it is not possible, especially for a Registrar who is an authority under the Cooperative Societies Act, to direct a cooperative society to admit as a member, a person who does not qualify to be a member as per the bye-laws registered under the Act.

In the end, the Supreme Court upheld “the right of the Society to insist that the property has to be dealt by Respondent 2 only in terms of the bye-laws of the Society and assigned either wholly or in parts only to persons qualified to be members of the Society in terms of its bye-laws”.

Thus, it should be possible for a housing society to have its bye-laws to refuse sale / transfer of a flat / house by a member of the society to some one on grounds of religion and insist that such flat or house may be sold only to a member of the community for whose benefit the society was formed. This is what has been held by the Supreme Court itself.

     

---

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 Dhamija]

Section 45(1) of the Income Tax Act, 1961, clearly states that any profits or gains arising from the transfer of a capital asset effected in the previous year shall, save as otherwise provided in Sections 54, 54-B, 54-D, 54-E, 54-EA, 54-EB, 4-F, 54-G and 54-H be chargeable to income tax under the head “Capital gains”, and shall be deemed to be the income of the previous year in which the transfer took place. Therefore, if there is any profit or gain arising from the above transfer, then capital gains tax will have to be paid. This is irrespective of whether the property was acquired on GPA.

Section 48 of the Income Tax Act lays down the mode of computation of the capital gains. It is computed, by deducting from the full value of the consideration received or accruing as a result of the transfer of the capital asset the following amounts, namely:—

(i) expenditure incurred wholly and exclusively in connection with such transfer;

(ii) the cost of acquisition of the asset and the cost of any improvement thereto.

Since in your case, long-term capital gains arise from the said transfer, you are entitled to deduce “indexed cost of acquisition” and “indexed cost of any improvement”.

In cases which are covered under Sections 54, 54-B, 54-D, 54-E, 54-EA, 54-EB, 4-F, 54-G and 54-H of the Income Tax Act, the capital gains tax may not be charged or may be reduced to extent mentioned in those sections, as applicable.

Please consult some CA or some other expert in Income Tax to calculate the actual tax that may be payable on account of capital gains in your case.

     

---

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 Dhamija]

Uploading an obscene video on the social media is an offence punishable under the provisions of the Information Technology Act, 2000. There are 3 different offences under this Act which may be attracted depending upon the nature and gravity of the offence relating to obscene material being uploaded.

(1) Section 67 of the IT Act provides punishment (up to 3 years’ imprisonment) for publishing or transmitting obscene material in electronic form.

(2) Section 67-A of the IT Act provides harsher punishment (up to 5 years’ imprisonment) for publishing or transmitting of material containing sexually explicit act, etc., in electronic form

(3) Section 67-B of the IT Act provides strict punishment (up to 5 years’ imprisonment) for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.

(4) In addition to the above, offence under Section 292 of the Indian Penal Code (IPC) may also be attracted in such a situation.

Offences under Information Technology Act, 2000:

67. Punishment for publishing or transmitting obscene material in electronic form.—Whoever publishes or transmits or causes to be published or transmitted in the electronic form, any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it, shall be punished on first conviction with imprisonment of either description for a term which may extend to three years and with fine which may extend to five lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to five years and also with fine which may extend to ten lakh rupees.

67-A. Punishment for publishing or transmitting of material containing sexually explicit act, etc., in electronic form.—Whoever publishes or transmits or causes to be published or transmitted in the electronic form any material which contains sexually explicit act or conduct shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees.

67-B. Punishment for publishing or transmitting of material depicting children in sexually explicit act, etc., in electronic form.—Whoever,—

(a) publishes or transmits or causes to be published or transmitted material in any electronic form which depicts children engaged in sexually explicit act or conduct; or

(b) creates text or digital images, collects, seeks, browses, downloads, advertises, promotes, exchanges or distributes material in any electronic form depicting children in obscene or indecent or sexually explicit manner; or

(c) cultivates, entices or induces children to online relationship with one or more children for and on sexually explicit act or in a manner that may offend a reasonable adult on the computer resource; or

(d) facilitates abusing children online; or

(e) records in any electronic form own abuse or that of others pertaining to sexually explicit act with children,

shall be punished on first conviction with imprisonment of either description for a term which may extend to five years and with fine which may extend to ten lakh rupees and in the event of second or subsequent conviction with imprisonment of either description for a term which may extend to seven years and also with fine which may extend to ten lakh rupees:

Provided that provisions of Section 67, Section 67-A and this section does not extend to any book, pamphlet, paper, writing, drawing, painting representation or figure in electronic form—

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting representation or figure is in the interest of science, literature, art or learning or other objects of general concern; or

(ii) which is kept or used for bona fide heritage or religious purposes.

Explanation.—For the purposes of this section, “children” means a person who has not completed the age of 18 years.

Offence under the Indian Penal Code (IPC):

292. Sale, etc., of obscene books, etc.—(1) For the purposes of sub-section (2), book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or (where it comprises two or more distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and corrupt person who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.

(2) Whoever—

(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire, distribution, public exhibition or circulation, makes, produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or

(b) imports, exports or conveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or

(c) takes part in or receives profits from any business in the course of which he knows or has reason to believe that any such obscene objects are, for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, conveyed, publicly exhibited or in any manner put into circulation, or

(d) advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or

(e) offers or attempts to do any act which is an offence under this section,

shall be punished 4[on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent conviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees].

Exception.—This section does not extend to—

(a) any book, pamphlet, paper, writing, drawing, painting, representation or figure—

(i) the publication of which is proved to be justified as being for the public good on the ground that such book, pamphlet, paper, writing, drawing, painting, representation or figure is in the interest of science, literature, art or learning or other objects of general concern, or

(ii) which is kept or used bona fide for religious purposes;

(b) any representation sculptured, engraved, painted or otherwise represented on or in—

(i) any ancient monument within the meaning of the Ancient Monuments and Archaeological Sites and Remains Act, 1958 (24 of 1958), or

(ii) any temple, or on any car used for the conveyance of idols, or kept or used for any religious purpose.

     

---

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 Dhamija]

If you have evidence to prove a case of medical negligence, then you may have following three options for taking action against the doctor who is responsible for such medical negligence:
(1) File a case before the consumer court for medical negligence for deficiency in services rendered to you causing financial loss to you as well as mental and physical harassment.
(2) File a complaint before the Medical Council of India, which is the disciplinary and controlling authority for doctors.
(3) Depending upon the facts of the case, you may also file a police complaint with the concerned police station, if the facts disclose commission of a cognizable offence.
     

---

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 Dhamija]

Since it is a self-acquired property of your father, he has full rights to dispose of it as he pleases. He has the power to gift that property to you out of his natural love and affection. The gift deed may be properly documented and should also be got registered by paying the stamp duty as payable. This is necessary since one of the exceptions to the general principles laid down in Section 25 of the Contract Act, 1872, which says that an agreement which is without consideration is void, is that such an agreement is expressed in writing and registered under the law for the time being in force for registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other.     

---

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 Dhamija]

In certain situations, when the nature of the act committed is such that it is doubtful which of several offences the facts which can be proved will constitute, Section 221 of the Criminal Procedure Code (Cr.P.C.) permits conviction under a different section vis-à-vis the section under he was charged subject to certain conditions, as mentioned below:

“221. Where it is doubtful what offence has been committed.— (1) If a single act or series of acts is of such a nature that it is doubtful which of several offences the facts which can be proved will constitute, the accused may be charged with having committed all or any of such offences, and any number of such charges may be tried at once; or he may be charged in the alternative with having committed some one of the said offences.

(2) If in such a case the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of sub-section (1), he may be convicted of the offence which he is shown to have committed, although he was not charged with it.

Illustrations

(a) A is accused of an act which may amount to theft, or receiving stolen property, or criminal breach of trust or cheating. He may be charged with theft, receiving stolen property, criminal breach of trust and cheating, or he may be charged with having committed theft, or receiving stolen property, or criminal breach of trust or cheating.

(b) In the case mentioned, A is only charged with theft. It appears that he committed the offence of criminal breach of trust, or that of receiving stolen goods. He may be convicted of criminal breach of trust or of receiving stolen goods (as the case may be), though he was not charged with such offence.

(c) A states on oath before the Magistrate that he saw B hit C with a club. Before the Sessions Court A states on oath that B never hit C. A may be charged in the alternative and convicted of intentionally giving false evidence, although it cannot be proved which of these contradictory statements was false.”

In your case, the charge was under Section 13(1)(d) of the Prevention of Corruption Act, 1988, but the conviction is under Section 13(1)(c) of the said Act. Generally speaking, the charges under 13(1)(c) and 13(1)(d) of the PC Act are not similar. However, it will depend upon the facts of the case as to whether the act allegedly committed by you was of a nature described in the Section 221 of Cr.P.C., as mentioned above which would have permitted the judge to convict you under Section 13(1)(c) of the Act even though the charge was framed under Section 13(1)(d) of the Act.

Please consult some good lawyer having expertise in the corruption matters, by showing the papers of your case. Some lawyer who has seen your detailed papers can only guide you properly.

     

---

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 Dhamija]

An aggrieved person or a Protection Officer or any other person on behalf of the aggrieved person may present an application under Section 12 to the Magistrate seeking one or more reliefs under the Protection of Women from Domestic Violence Act, 2005.

The above Act does not appear to be laying down any specific limitation period for filing such application. But, then, the provisions of the Limitation Act, 1963, shall be applicable to such an application seeking relief against domestic violence.

Article 137 in the Schedule to the Limitation Act lays down the period of limitation for filing any other application for which no period of limitation is provided elsewhere is three years from the date when the right to apply accrues.

Therefore, the limitation period should be 3 years filing the application under the Protection of Women from Domestic Violence Act, 2005, for seeking relief against domestic violence. However, if the domestic violence of a continuing or recurring nature, then the limitation period may be considered from the last date of such recurrence.

     

---

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 Dhamija]

Section 35 of the Arbitration and Conciliation Act, 1996, states that: “Subject to this Part an arbitral award shall be final and binding on the parties and persons claiming under them respectively.”

Now, recourse to a Court against an arbitral award may be made only by an application filed under Section 34 of the said Act for setting aside such award in accordance with the provisions of that Section. Such application for setting aside the arbitration award has to be made within a period of 3 months from the date of receipt of the award. However, if the Court is satisfied that the applicant was prevented by sufficient cause from making the application under Section 34 to challenge the award within the said period of 3 months, it may entertain the application within a further period of 30 days, but not thereafter. Thus, the total period allowed for making an application for setting aside the award in arbitration is 4 months. Within this period, your opposite party can make an application to set aside the award.

Further, Section 36 of the Arbitration and Conciliation Act lays down that where the time for making an application to set aside the arbitral award under Section 34 has expired (i.e., when the period of 4 months has expired), then such award shall be enforced as if it were a decree of the court. However, meanwhile, if an application to set aside the arbitral award has been filed in the Court under Section 34, the filing of such an application shall not by itself render that award unenforceable, but the Court can grant an order of stay of the operation of the said arbitral award for reasons to be recorded in writing. Section 36 is reproduced below:

“36. Enforcement.— (1) Where the time for making an application to set aside the arbitral award under Section 34 has expired, then, subject to the provisions of sub-section (2), such award shall be enforced in accordance with the provisions of the Code of Civil Procedure, 1908 (5 of 1908), in the same manner as if it were a decree of the court.

(2) Where an application to set aside the arbitral award has been filed in the Court under Section 34, the filing of such an application shall not by itself render that award unenforceable, unless the Court grants an order of stay of the operation of the said arbitral award in accordance with the provisions of sub-section (3), on a separate application made for that purpose.

(3) Upon filing of an application under sub-section (2) for stay of the operation of the arbitral award, the Court may, subject to such conditions as it may deem fit, grant stay of the operation of such award for reasons to be recorded in writing:

Provided that the Court shall, while considering the application for grant of stay in the case of an arbitral award for payment of money, have due regard to the provisions for grant of stay of a money decree under the provisions of the Code of Civil Procedure, 1908 (5 of 1908).”

Thus, after waiting for the period of 4 months, you can seek execution of the arbitration award as if it were a decree of a 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.

[Dr. Ashok Dhamija]

From your question, it appears that you were under “deemed suspension” under Rule 10(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [CCS (CCA) Rules], since your suspension was on account of detention in custody for more than 48 hours.

In view of the fact that the case against you has been quashed by the courts, without a prosecution, there is a very good possibility that you should get full salary for the suspension period. Your case appears to be fully covered by the following instructions issued by the Government of India, vide Department of Personnel & A.R. OM No. 35014/9/76-Estt. (A) dated 08.08.1977:

“Erroneous detention or detention without basis –

One of the items considered by the National Council (JCM) in its meeting held in January, 1977 was a proposal of the Staff Side that a  Government servant who was deemed to have been placed under suspension on account of his detention or on account of criminal proceedings against him should be paid full pay and allowances for the period of suspension if he has been discharged from detention or has been acquitted by a Court.

2. During the discussion, it was clarified to the Staff Side that the mere fact that a Government servant who was deemed to have been under suspension, due to detention or on account of criminal proceedings against him, has been discharged from detention without prosecution or has been acquitted by a Court would not make him eligible for full pay and allowances because often the acquittal may be on technical grounds but the suspension might be fully justified.  The Staff Side were, however, informed that if a Government servant was detained in police custody erroneously or without any basis and thereafter he is released without any prosecution, in such cases the official would be eligible for full pay and allowances.

3. It has accordingly been decided that in the case of a Government servant who was deemed to have been placed under suspension due to his detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, the competent authority should apply its mind at the time of revocation of the suspension and re-instatement of the official and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed.”

In view of the above instructions, since you have been deemed to have been placed under suspension due to your detention in police custody erroneously or without basis and thereafter released without any prosecution having been launched, and since the competent authority has already revoked your suspension and has reinstated you in service, such authority should apply its mind and if he comes to the conclusion that the suspension was wholly unjustified, full pay and allowances may be allowed to you. You may convince the authority in this regard by citing the above instructions issued by the Government of India.

     

---

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 Dhamija]

This is a general question that often arises in relation to the validity of a Power of Attorney. The question is whether Power of Attorney (POA) is valid after the death of person who executed it, i.e., after the death of the donor of POA. The answer to this question would depend upon the facts of each case. But, generally speaking, a Power of Attorney becomes invalid after the death of the donor / principal. However, if it is an irrevocable Power of Attorney, for valuable consideration, creating an agency wherein the donee / agent has an interest in the subject-matter property, then such Power of Attorney may be valid even after the death of the donor / principal.

Though the Powers of Attorney Act, 1882, defines what is “Power of Attorney”, it is merely an inclusive definition. Section 1A of the said Act says that “Powers-of-Attorney” include any instrument empowering a specified person to act for and in the name of the person executing it.

Basically, a POA holder is an “agent” of the person executing the POA, as defined under Section 182 of the Contract Act, 1872, which is reproduced as under:

“182. “Agent” and “principal” defined.—An “agent” is a person employed to do any act for another, or to represent another in dealings with third persons. The person for whom such act is done, or who is so represented, is called the “principal”.”

Under Section 2 of the Powers of Attorney Act, the donee of a power-of-attorney is empowered to execute or do any instrument or thing in and with his own name and signature, and his own seal, where sealing is required, by authority of the donor of the power; and every instrument and thing so executed and done, shall be as effectual in law as if it had been executed or done by the donee of the power in the name, and with the signature and seal, of the donor thereof.

The POA holder has thus the power to affect the position of his principal by doing acts on his behalf.

While the Powers of Attorney Act is silent on the issue of termination of POA, the Contract Act has provisions with regard to termination of “agency”. Since POA is also basically an agency, the provisions of the Contract Act would be applicable to the termination of POA.

Section 201 of the Contract Act lays down how an agency can be terminated:

“201. Termination of agency.—An agency is terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated an insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.”

It should thus be clear that, generally speaking, an agency is terminated by the death of either the principal or the agent. Accordingly, generally speaking, a Power of Attorney is terminated by the death of either the donor of POA or of the donee of the POA.

However, Section 202 of the Contract Act lays down an exception to the above general rule of termination of agency:

“202. Termination of agency, where agent has an interest in subject-matter.—Where the agent has himself an interest in the property which forms the subject-matter of the agency, the agency cannot, in the absence of an express contract, be terminated to the prejudice of such interest.

Illustrations

(a) A gives authority to B to sell A’s land, and to pay himself, out of the proceeds, the debts due to him from A. A cannot revoke this authority, nor can it be terminated by his insanity or death.

(b) A consigns 1,000 bales of cotton to B, who has made advances to him on such cotton and desires B to sell the cotton, and to repay himself, out of the price, the amount of his own advances. A cannot revoke this authority, nor is it terminated by his insanity or death.”

Thus, where the agent himself has an interest in the property which forms the subject-matter of the agency, such agency cannot be terminated to the prejudice of such interest in the absence of an express contract. This situation will generally arise when the agent acquires such an interest in the subject-matter property for some valuable consideration paid or payable to the principal. In such situations, the agency may be irrevocable. However, if there is an express contract between the agent and the principal that even in such a situation, the agency may be terminated (subject to conditions, if any), in that case such agency may also be terminable.

Accordingly, if there is an irrevocable Power of Attorney (POA) creating an interest in favour of the donee  of the POA in respect of the property which forms the subject-matter of the POA, which is generally for some valuable consideration paid or payable to the donor of the POA, then such POA may not be terminated even after the death of the donor of POA and may continue to be valid. It may be binding on the heirs / successors of the donor of POA in these circumstances.

Barring the above exception, generally speaking, a POA gets terminated by the death of either the donor or of the donee of the POA.

     

---

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 Dhamija]

@Venkat: You have put this question at two places. The answer to your question has been given at the following link: http://tilakmarg.com/forum/topic/daughters-cannot-inherit-ancestral-property-if-father-died-before-2005-sc/     

---

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 Dhamija]

You appear to be referring to the Supreme Court judgment in the case of Prakash v. Phulavati, (2016) 2 SCC 36, which was quoted in a Tilak Marg Forum answer given at the following link: Hindu daughters cannot inherit property if father died before 2005.

This judgment related to devolution of interest in coparcenary property in a Joint Hindu family governed by the Mitakshara law. Please read the above Tilak Marg Forum answer where it is explained in detail.

In so far as general law of succession amongst Hindus is concerned, it is governed by the Hindu Succession Act, 1956, under which daughters are equally entitled to property of their father or mother. This is in spite of whether the death of father took place prior to 2005 or thereafter. Please see sections 8 along with the Schedule of the said Act; and also see section 15 thereof.

General law of succession amongst Hindus should not be confused with devolution of interest in coparcenary property in a Joint Hindu family to which the above SC rule was applicable.     

---

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 Dhamija]

Generally speaking, you should not worry about a failed NEFT (National Electronic Funds Transfer) or RTGS (Real Time Gross Settlement) transaction. If such a transaction has failed, i.e., the account of the beneficiary is not credited, whether or not your own account is debited, then you should get the amount back in your account after some time if it was debited to your account in the first instance. However, there may be some delay in the amounted being returned to your account.

As per the website of State Bank of India:

• If an RTGS transaction is not credited to a beneficiary account for any reason, the beneficiary’s bank will return the money to the remitting bank within 1 hour. Once the amount is received by the remitting bank, it is credited to the remitters account by the branch concerned.
• If an NEFT transaction is not credited to a beneficiary account, for any reason, the beneficiary’s bank has to return the money within next two batches i.e. (B+2) to the remitting bank. Once this amount is received back by the remitting bank, the amount is credited to the Remitter’s account by the remitting bank.

The SBI website further states that in case of non-credit or delay in credit to the beneficiary account for NEFT transaction, you may contact your bank/branch or the receiver bank/branch or the Customer Facilitation Service center of the banks. The Customer Facilitation Service details for NEFT can be downloaded from here.

Therefore, if you have a failed NEFT / RTGS transaction, the amount debited to your account shall be returned to your account after some. In case of delay, you may contact the above authorities along with details of the failed transaction.

     

---

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 Dhamija]

In the absence of full facts given by you, it is hoped that your marriage is a legally valid marriage and is property registered with the Registrar of Marriages office. I am writing so, because the Arya Marriage Validation Act, 1937, validates marriage between two “Arya Samajists” even if prior to such marriage they were from a religion other than Hinduism. But, they should have been “Arya Samajists” at the time of marriage. I hope this condition was satisfied for the marriage to be valid. Secondly, it is not clear where the marriage is registered and under which Act or law, since you have merely mentioned Registrar office.

In any case, presuming that your marriage is valid, if your wife is refusing to come back to reside with you, in that case you can file a petition for restitution of conjugal rights in the appropriate court, which appears to be district court in this case, from the facts mentioned by 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.

[Author]

Posts