[Dr. Ashok Dhamija]

Please note that eligibility to receive family pension by an unmarried daughter beyond the age of 25 years would depend on the relevant rules of the Government concerned.

Recently, I had written that Family pension to unmarried daughter of more than 25 years age is permissible for the Central Government employees. This is possible in view of the Office Memorandum No. 1/19/03-P&PW (E) dated 6^th September 2007, mentioned in the above reply, which was issued by the Government of India, Ministry of Personnel, P.G. & Pension, Department of Pension & Pensioners’ Welfare, in the case of Central Government employees.

In your question, you have mentioned that you were working with a State Government, though you have not mentioned the state concerned. Likewise, you have mentioned that you are getting family pension in respect of the government service rendered by your husband, but you have not mentioned under which Government he was working. If he was working under the Central Government, then your unmarried daughter of 47 years age also would be entitled to get the family pension after you.

So, you may have to check the relevant family pension rules for the State Government concerned (and, also where your husband was employed). If the relevant rules do not have necessary provisions for family pension to unmarried daughter above the age of 25 years, then it may not be possible for your 47-year old daughter to get such family pension after you.

However, you may request the State Government to change its family pension rules and modify its guidelines to make them similar to the Central Government guidelines on this issue, to implement welfare measures for unmarried daughters. You may also seek help of employee associations in this regard and petition the State Government. Perhaps, good sense may prevail and the State Government may modify its guidelines suitably.

     

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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]

Please ask this question to your local lawyer, since it depends on pendency level in the DRT concerned.     

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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 what has been held by the Supreme Court, on this issue, in the case of Noratanmal Chouraria v. M.R. Murli, (2004) 5 SCC 689:

“7. Misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, “improper behaviour, intentional wrongdoing or deliberate violation of a rule or standard of behaviour”.

“8. Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law.”

If the lawyer concerned has deliberately back-dated the notice sent to you, with the mala fide intention of showing that the notice was issued by him (or his client) prior to your letter, then in my opinion it may amount to a misconduct. However, sometimes, it so happens that a letter is genuinely prepared and signed on a particular date but remains pending for dispatch and is dispatched later due to some problems or due to negligence or oversight, in such a situation, it may not amount to misconduct. So, it all depends on the facts of the case.

     

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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]

Once the FIR has been registered, police gets statutory powers to investigate the case and the courts will not interfere with the investigation. Lower courts have no power to interfere in the investigation. Only the high court can sometimes monitor the investigation and give directions during investigation, but that happens in very rare cases and not in a routine manner. If you have very strong material to show injustice, you may file a writ petition in the high court, but the chances of the high court interfering in the investigation would be very less.

What perhaps can help is approaching the senior police officers, such as SP of the district. If convinced, senior police officers can ensure proper investigation in the case, including application of the correct sections of law. You can show the evidence to the senior officers.

Once the investigation is over and a charge sheet is filed, the court can direct further investigation and if needed the court can frame charges under different sections if there is evidence to support such different sections, as mentioned by you.

     

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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 husband is the sole owner of the property, which is his self-acquired property, then legally speaking, there is no need for obtaining the no-objection certificate (NOC) or consent of the wife for the buyer who wants to buy such property from the husband. Husband, being the sole owner, has the full authority to sell his property, during his lifetime, as per his own wishes. This is presuming that there is no court stay order, etc., against sale of the property or against any other type of transfer of the property.

In practice, it may perhaps be advisable to find out whether any case is pending in the family court for maintenance, divorce, etc., between the husband and wife and whether there is any stay order, etc., against transfer of such property. In fact, it may be advisable to ascertain whether any other court case is pending in respect of the property and whether there is any interim stay order, etc. against transfer of such property. It may also be advisable to ascertain whether the property is mortgaged or some loan etc. has been taken against such property as a security.

Subject to the above, a person who is the sole owner of a property can sell his self-acquired property without taking consent from any family members, including wife.

     

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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]

Being a co-owner of 50% share in the property, you can sell your share. Under the provisions of Section 44 of the Transfer of Property Act, 1882, a co-owner can transfer his share in an immovable property and this section lays down as to what rights are acquired by the buyer / transferee in such case:

“44. Transfer by one co-owner.— Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred.

Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him of joint possession or other common or part enjoyment of the house.”

In your question, you have mentioned that the property co-owned by you is a residential house, therefore, in view of (the second part of) the above legal provision, the buyer will not get a right to joint possession of the house or right to part enjoyment of the property if he is not a family member, but he will get all other rights of co-ownership as provided in the main part of the above section.

     

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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 263 of the Income Tax Act, 1961, lays down for revision of orders prejudicial to revenue. It says that the Commissioner may call for and examine the record of any proceeding under the Act, and if he considers that any order passed therein by the Assessing Officer is erroneous in so far as it is prejudicial to the interest of the revenue, he may, after giving the assessee an opportunity of being heard and after making or causing to be made such inquiry as he deems necessary, pass such order thereon as the circumstances of the case justify, including an order enhancing or modifying the assessment, or cancelling the assessment and directing a fresh assessment.

No order under this provisions can be made after the expiry of 2 years from the end of the financial year in which the order sought to be revised was passed. Thus, the limitation period for revision under Section 263 is two years from the end of the financial year (in which the order sought to be revised was passed).

However, an order in revision under this section may be passed at any time in the case of an order which has been passed in consequence of, or to give effect to, any finding or direction contained in an order of the Appellate Tribunal, National Tax Tribunal, the High Court or the Supreme Court; and, in these situations, the above limitation would not apply.

It has further been laid down that in computing the period of limitation as above, the time taken in giving an opportunity to the assessee to be reheard under the proviso to Section 129 of the said Act and any period during which any proceeding under this section is stayed by an order or injunction of any court shall be excluded.

     

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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 can file the RTI application, since what you want to know is what action has been taken on your complaint and not any information which is exempted from being supplied under Section 8 [clauses (g) and (h) thereof] of the Right to Information Act.

Please also note that, instead of waiting for RTI reply for a long period of a month or so, you can directly ascertain from police as to whether FIR has been filed or not and whether they are likely to register it or not. Further, nowadays, all the FIRs are required to be uploaded on the police website. So, check the website of the your state police and district and locate your police station and try to locate FIR, if any, registered on your complaint.

General experience has been that police avoid to register FIRs on most complaints.

If the police has not registered the FIR, then, generally speaking, they would not have done anything else on your complaint. You have said that you have already approached the SP office also, but without any result. So, in such a situation, if you know that FIR is not filed by police, then you should approach the Magistrate court under Section 156(3) of the Criminal Procedure Code for directing the police to investigate the case or under Section 190 of the Cr.P.C. for filing your private complaint directly in court.

     

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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]

Though you have not made it clear, it appears that you have a private complaint case or the complaint is yet to be filed by you before police.

Please note that a Government forensic science laboratory may not accept a request for examination of handwriting and/or signature unless such request comes from police or court. So, if you are yet to file the FIR with the police, the police can send that document to the Government laboratory for such forensic examination during its investigation. In the case of a private complaint case (which does not involve police), you may make an application to the court for directing forensic examination of the document by a Government laboratory, and if the court agrees to give such a direction, then also such Government laboratory would examine it.

However, if it is not possible for you to get the police or court to make such a request / direction to the Government laboratory, such laboratory may not accept a document for examination from a private person directly (though, you may try contacting them). But, of course, you may get such document examined from a private forensic science expert, and there are many such private experts. Their expert reports on scientific examination of the handwriting and signature may be considered as trustworthy if you can show that such expert has sufficient technical qualifications / expertise and has also given a well-reasoned opinion for his examination. The opinion of the private scientific expert may also be considered admissible under Section 45 of the Evidence Act as scientific expert’s opinion, subject to conditions such as above. There are many retired scientific experts who earlier worked in Government forensic science laboratories who have sufficient expertise in the field. You’ll also have to send some specimen handwriting / signature samples of the person concerned along with his questioned handwriting / signature. For this, you may use some of his previous documents (which are not disputed) which contain his handwriting / signature.

     

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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]

There are at least two legal provisions which can help the old-aged mother to claim maintenance from her son.

The first provision is Section 125 of the Criminal Procedure Code which, inter alia, provides that if any person having sufficient means neglects or refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.

So, the old-aged mother can file a case under Section 125 Cr.P.C. against her son to claim monthly maintenance from him.

Secondly, about 10 years back, a new law by the name of Maintenance and Welfare of Parents and Senior Citizens Act, 2007, was passed by the Parliament. As per the provisions of Section 1(3) of this Act, it comes into effect within a State from the date to be fixed by the State Government concerned. So, it has to be checked whether this Act has been made applicable in your State. If so, then under the provisions of this Act, an application can be made by the old-aged mother before the Maintenance Tribunal set up under the said Act, for seeking maintenance from her son.

     

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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]

I think I have already replied to you in this regard earlier. As I have mentioned earlier, you should consult some lawyer by providing full factual details, along with all relevant documents (including marriage certificate, if any) in order to get proper advice. It is not possible for us to give help on detailed facts of an individual case without having seen the documents in detail. We can guide on general legal provisions but it is not advisable to guide specifically on facts without having seen the detailed papers. So, please consult some lawyer and show him your detailed papers to get a proper advice.     

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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]

The relevant guidelines in OM No. 18011/3/88-Estt(D) dated 24.09.1992 in this regard have been reiterated in the OM No. 28020/1/2010-Estt(C) dated 21st July, 2014, of the Government of India Ministry of Personnel, Public Grievances and Pensions (Department of Personnel & Training). It has been stated that if a Government servant is appointed to another post by direct recruitment either in the same department or a different department, it may be necessary to consider him for confirmation in the new post in which he has been appointed by direct recruitment irrespective of the fact that the officer was holding the earlier post on a substantive basis. Further confirmation in the new entry grade becomes necessary because the new post may not be in the same line or discipline as the old post in which he has been confirmed and the fact that he was considered suitable for continuance in the old post (which was the basis for his confirmation in that post) would not automatically make him suitable for continuance or confirmation in the new post the job requirements of which may be quite different from those of the old post.

From the above guidelines, it appears that a discretion has been given (by use of the words “it may be necessary”) to the competent authority on the issue of confirmation in the new job on the basis of a direct appointment. Further indication is that if the job requirements are different from the old post, confirmation in the new job may be necessary. It also implies that where the new job is in the same line or discipline as the old post, confirmation in new job may not perhaps be necessary, but the discretion appears to have been given to the authority concerned. In both the cases mentioned by you, it appears that the line or discipline of the old job was the same as in the new job, then the confirmation in the new job may not be necessary, but it may be in the discretion of the competent authority.

You may make a request to the competent authority citing the above guidelines for taking benefit of the same and if the competent authority does not give you the benefit, you may have to approach the Central Administrative Tribunal (CAT) if you want to challenge such decision.

     

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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 the case does not involve any public money and if the opposite party is willing to compromise the case and willing to withdraw the case, you could have filed a petition under Section 482 of the Criminal Procedure Code for quashing of the FIR and/or the criminal proceedings on the basis of such compromise. If this was the petition that you have already filed, which you say has been dismissed, then you may have to approach the Supreme Court by filing a Special Leave Petition (SLP) against the decision of the High Court.

Second option is to file a discharge application after charge sheet is filed by the police, or to face the trial wherein if the opposite party does not make a statement against you, you may stand a better chance to get acquitted from the case.

     

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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 appears from your question that the property in question is yet to be auctioned. Since the amount remaining to be unpaid appears to be comparatively small when compared with the total amount, it may perhaps be advisable for you to make the remaining payment (as per notice or as per the actual amount due including charges, costs, expenses) to the company to prevent auction of the property; in this regard, Section 13(8) of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002, is reproduced below:

“(8) Where the amount of dues of the secured creditor together with all costs, charges and expenses incurred by him is tendered to the secured creditor at any time before the date of publication of notice for public auction or inviting quotations or tender from public or private treaty for transfer by way of lease, assignment or sale of the secured assets,—

(i) the secured assets shall not be transferred by way of lease assignment or sale by the secured creditor; and

(ii) in case, any step has been taken by the secured creditor for transfer by way of lease or assignment or sale of the assets before tendering of such amount under this sub-section, no further step shall be taken by such secured creditor for transfer by way of lease or assignment or sale of such secured assets.”

Otherwise, you may make an application to the Debt Recovery Tribunal (DRT) under the provisions of Section 17 of the above Act.

If your application has already been dismissed by the DRT, as it appears from your question, you may file an appeal (under Section 18 of the said Act) before the Debt Recovery Appellate Tribunal (DRAT) against such decision of the DRT.

     

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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 difficult to understand what legal question you are asking. Please appreciate that it is Forum for helping people with their legal problems. Your question does not appear to be relating to law but relating to valuation of property. Please consult some expert in that field or ask in some online forum which deals with such matters.

     

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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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