Latest Supreme Court Judgments/Orders

Keshav Bhaurao Yeole (D) vs Muralidhar (D) 2023 INSC 939 – Maharashtra Tenancy and Agricultural Lands Act, 1948

M.A Biviji vs Sunita 2023 INSC 938 – Medical Negligence

Naveen @ Ajay vs State of Madhya Pradesh 2023 INSC 936 – Principle of Judicial Calm – Death Sentence Set Aside

Indrakunwar vs State of Chhattisgarh 2023 INSC 934 – Section 313 CrPC – Privacy Right

Chennai Metro Rail Limited Administrative Building vs Transtonnelstroy AFCONS(JV) 2023 INSC 932 – Arbitration Act0*902888

Unibros vs All India Radio 2023 INSC 931 – Arbitration and Conciliation Act- Section 34

Initiatives for Inclusion Foundation vs Union of India 2023 INSC 927 Effective implementation of the Sexual Harassment at Workplace (Prevention, Prohibition and Redressal) Act, 2013 [POSH] – Directions issued.

Ram Kishan vs Daya Nand (D) 2023 INSC 926 – right of pre-emption – Punjab Land Revenue Act, 1887

Debasish Paul vs Amal Boral 2023 INSC 925 – West Bengal Premises Tenancy Act – Limitation Act

Abhishek Sharma vs State (Govt. Of NCT of Delhi) 2023 INSC 924 – Dying Declaration

Tottempudi Salalith vs State Bank of India 2023 INSC 923 – IBC – Limitation

Jammu Development Authority vs S. Paramjeet Singh 2023 INSC 922 – Public Auction

Kalyani Rajan vs Indraprastha Apollo Hospital 2023 INSC 921 – Medical Negligence.

Supriyo @ Supriya Chakraborty vs Union of India 2023 INSC 920 – Same Sex Marriage

Mohammed Ibrahim vs Chairman Managing Director 2023 INSC 914 – Public Employment – Disability Rights

X vs Union of India 2023 INSC 919 – Abortion Rights – MTP Act

Mathews J Nedumpara vs Union of India 2023 INSC 918 – Senior Advocate Designation Constitutional Validity

CIT Delhi vs Bharti Hexacom 2023 INSC 917

Solaris Chem Tech Industries Ltd vs Assistant Executive Engineer Karnataka Urban WaterSupply and Drainage Board- 2023 INSC 915 – Arbitration

Balwinder Singh (Binda) vs Narcotics Control Bureau 2023 INSC 852 – Section 67 NDPS Act –Any confessional statement made by an accused to an officer invested with the powers under Section 53 of the NDPS Act, is barred for the reason that such officers are “police officers” within the meaning of Section 25 of the Evidence Act, a statement made by an accused and recorded under Section 67 of the NDPS Act cannot be used as a confessional statement in the trial of an offence under the NDPS Act – Section 54 NDPS – For attracting the provisions of Section 54 of the NDPS Act, it is essential for the prosecution to establish the element of possession of contraband by the accused for the burden to shift to the accused to prove his innocence. This aspect of possession of the contraband has to be proved by the prosecution beyond reasonable doubt – Possession of the contraband is a sine qua non to secure a conviction under Section 21 of the NDPS Act and that such a contraband article should be recovered in accordance with the provisions of Section 50 of the NDPS Act, being a statutory safeguard favouring the accused; otherwise the recovery itself shall stand vitiated in law – Section 100(4) CrPC – it is a general provision relating to search and applies to a closed place, as for example, a residence, office, shop, a built-up premises etc, where a search is required to be Crl. Appeal No. .1136 of 2014 a/w Crl. Appeal 1933 of 2014 Page 24 of 25 conducted by the investigation. It is in this context that sub-section (4) of Section 100 Cr.P.C. provides that to maintain the purity of the process, before undertaking a search, a couple of independent and respectable inhabitants of the locality where the place to be searched is located, be joined as witnesses to the search.

Batliboi Environmental Engineers Limited vs Hindustan Petroleum Corporation Limited 2023 INSC 850 – Arbtiration and Conciliation Act – Section 34,37

R Raghavendran vs C Raja John 2023 INSC 849 – Insolvency and Bankruptcy Code (IBC) – The impugned judgment is predicated on a broad reasoning as if ipso facto there is no need to call other proposals if it is an MSME. In view of the larger context it would have, we clearly observe and hold that this is not the correct position of law.

Hemavathi vs V Hombegowda 2023 INSC 848 – Civil Procedure Code – Section 100 CPC – Second Appeal – If no substantial question of law arose in the case then the appeal could not have been entertained and ought to have been dismissed at the stage of admission. But on the other hand, in the absence of framing any substantial question of law the appeal has been allowed, that too, at the stage of admission, without issuance of notice to the other respondents and by hearing only counsel for one respondent before the High Court who was on caveat.

Meena Pradhan vs Kamla Pradhan 2023 INSC 847 – Indian Succession Act, Section 63,68 – WILL – A Will is an instrument of testamentary disposition of property. It is a legally acknowledged mode of bequeathing a testator’s property during his lifetime to be acted upon on his/her death and carries with it an element of sanctity. It speaks from the death of the testator. Since the testator/testatrix, at the time of testing the document for its validity, would not be available for deposing as to the circumstances in which the Will came to be executed, stringent requisites for the proof thereof have been statutorily enjoined to rule out the possibility of any manipulation. -The court has to consider two aspects: firstly, that the Will is executed by the testator, and secondly, that it was the last Will executed by him; – It is not required to be proved with mathematical accuracy, but the test of satisfaction of the prudent mind has to be applied. – A Will is required to fulfil all the formalities required under Section 63 of the Succession Act, that is to say: (a) The testator shall sign or affix his mark to the Will or it shall be signed by some other person in his presence and by his direction and the said signature or affixation shall show that it was intended to give effect to the writing as a Will; (b) It is mandatory to get it attested by two or more witnesses, though no particular form of attestation is necessary; (c) Each of the attesting witnesses must have 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 such signatures; (d) Each of the attesting witnesses shall sign the Will in the presence of the testator, however, the presence of all witnesses at the same time is not required; – For the purpose of proving the execution of the Will, at least one of the attesting witnesses, who is alive, subject to the process of court, and capable of giving evidence, shall be examined; – The attesting witness should speak not only about the testator’s signatures but also that each of the witnesses had signed the will in the presence of the testator; – If one attesting witness can prove the execution of the Will, the examination of other attesting witnesses can be dispensed with; – Where one attesting witness examined to prove the Will fails to prove its due execution, then the other available attesting witness has to be called to supplement his evidence; – Whenever there exists any suspicion as to the execution of the Will, it is the responsibility of the propounder to remove all legitimate suspicions before it can be accepted as the testator’s last Will. In such cases, the initial onus on the propounder becomes heavier. – The test of judicial conscience has been evolved for dealing with those cases where the execution of the Will is surrounded by suspicious circumstances. It requires to consider factors such as awareness of the testator as to the content as well as the consequences, nature and effect of the dispositions in the Will; sound, certain and disposing state of mind and memory of the testator at the time of execution; testator executed the Will while acting on his own free Will; -One who alleges fraud, fabrication, undue influence et cetera has to prove the same. However, even in the absence of such allegations, if there are circumstances giving rise to doubt, then it becomes the duty of the propounder to dispel such suspicious circumstances by giving a cogent and convincing explanation. – Suspicious circumstances must be ‘real, germane and valid’ and not merely ‘the fantasy of the doubting mind . Whether a particular feature would qualify as ‘suspicious’ would depend on the facts and circumstances of each case. Any circumstance raising suspicion legitimate in nature would qualify as a suspicious circumstance for example, a shaky signature, a feeble mind, an unfair and unjust disposition of property, the propounder himself taking a leading part in the making of the Will under which he receives a substantial benefit, etc. – In short, apart from statutory compliance, broadly it has to be proved that (a) the testator signed the Will out of his own free Will, (b) at the time of execution he had a sound state of mind, (c) he was aware of the nature and effect thereof and (d) the Will was not executed under any suspicious circumstances.

Suresh Lataruji Ramteke vs Sumanbai Pandurang Petkar 2023 INSC 846 – Civil Procedure Code – Section 100 CPC – Second Appeal – A Court sitting in second appellate jurisdiction is to frame substantial question of law at the time of admission, save and except in exceptional circumstances. Post such framing of questions the Court shall proceed to hear the parties on such questions, i.e., after giving them adequate time to meet and address them. It is only after such hearing subsequent to the framing that a second appeal shall come to be decided – In ordinary course, the High Court in such jurisdiction does not interfere with finding of fact, however, if it does find any compelling reason to do so as regard in law – it can do but only after perusing the records of the Trial Court, on analysis of which the conclusion arrived at by such a Court is sought to be upturned. In other words, when overturning findings of fact, the Court will be required to call for the records of the Trial Court or if placed on record, peruse the same and only then question the veracity of the conclusions drawn by the Court below.

First Global Stockbroking  Pvt. Ltd vs Anil Rishiraj 2023 INSC 845 – FEMA and FERA

P Sarangapani(D) vs State of Andhra Pradesh 2023 INSC 844 – Prevention of Corruption Act ; Section 20.

Joseph vs State of Kerala – 2023 INSC 843 – Remission – Premature release

Sudesh Kumar Goyal vs State of Haryana 2023 INSC 842 – Public Employement- Selection

Panchayat Qureshian vs State of Rajasthan – 2023 INSC 841 – Water Pollution – Lok Adalat – Slaughter House

Sunil vs State of NCT Of Delhi 2023 INSC 840 – Section 313 CrPC – What is the effect of not putting the incriminating circumstance to the accused while recording their statements under Section 313 CrPC.?To enable an accused to explain the circumstances appearing in the evidence against him, all the incriminating circumstances appearing against him in the evidence must be put to him. – Where there has been a failure in putting those circumstances to the accused, the same would not ipso facto vitiate the trial unless it is shown that its non-compliance has prejudiced the accused – Where there is a delay in raising the plea, or the plea is raised for the first time in this Court, it could be assumed that no prejudice had been felt by the accused-Section 34 IPC – to fasten liability with the aid of Section 34 of the I.P.C. what must necessarily be proved is a common intention to commit the crime actually committed and each accused person can be convicted of that crime, only if it is in furtherance of common intention of all. Common intention pre-supposes a prior concert, though pre-concert in the sense of a distinct previous plan is not necessary as common intention to bring about a particular result may develop on the spot. The question whether there was any common intention or not depends upon the inference to be drawn from the proven facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted.

Rajesh vs State of MP 2023 INSC 839 – The Supreme Court acquitted three accused who were sentenced to death penalty in a murder case. “Yawning infirmities and gaps in the chain of circumstantial evidence in this case warrant acquittal of the appellants by giving them the benefit of doubt”, the Court said – Section 26-27 Evidence Act- Being in ‘the custody of a police officer’ and being ‘accused of an offence’, are indispensable pre-requisites to render a confession made to the police admissible to a limited extent, by bringing into play the exception postulated under Section 27 of the Evidence Act. In this case, the accused’s name was not in the FIR. He was taken to the police station. Before his arrest was recorded, he is said to have made a confession. The court held thus: “It was his arrest which resulted in actual ‘police custody’, and the confession made by him, before such arrest and prior to his being ‘accused of any offence’, would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact.” So the court held that the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at his behest of, cannot be proved against him, as he was not ‘accused of any offence’ and was not in ‘police custody’ at the point of time he allegedly made a confession – Police Investigation– “It is high time, perhaps, that a consistent and dependable code of investigation is devised with a mandatory and detailed procedure for the police to implement and abide by during the course of their investigation so that the guilty do not walk free on technicalities, as they do in most cases in our country.”  The court expressed its ‘deep and profound’ concern about the disappointing standards of police investigation. “A young boy in the first flush of youth was cruelly done to death and the wrongdoers necessarily had to be brought to book for the injustice done to him and his family. However, the manner in which the police tailored their investigation, with complete indifference to the essential norms in proceeding against the accused and in gathering evidence; leaving important leads unchecked and glossing over other leads that did not suit the story that they had conceived; and, ultimately, in failing to present a cogent, conceivable and fool-proof chain of events pointing to the guilt of the appellants, with no possibility of any other hypothesis, leaves us with no option but to extend the benefit of doubt to the appellants. The higher principle of ‘proof beyond reasonable doubt’ and more so, in a case built on circumstantial evidence, would have to prevail and be given priority.”, the court said- Panchanamas – Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence. DNA Evidence– as the source and origin of the DNA evidence, viz., the hair, is rendered suspect, the end result of that DNA analysis serves no real purpose in establishing the prosecution’s case.

CELIR LLP vs Bafna Motors (Mumbai ) Pvt. Ltd 2023 INSC 838 – SARFAESI –Section 13(8) – As per the amended Section 13(8) of the SARFAESI Act, once the borrower fails to tender the entire amount of dues with all cost & charges to the secured creditor before the publication of auction notice, his right of redemption of mortgage shall stand extinguished / waived on the date of publication of the auction notice in the newspaper in accordance with Rule 8 of the Rules of 2002 – Article 226 –  Writ Jurisdiction – High Courts should not entertain a petition under Article 226 of the Constitution if an effective remedy is available to the aggrieved person under the provisions of the SARFAESI Act. –  Interpretation of Statutes –  The sum and substance of a provision is determined by what is given in the provision and not by its heading or marginal note- Conduct of Bank – Bank is duty bound to follow the provisions of the law as any other litigant. It is to be noted that the Bank i.e., the secured creditor acts under the SARFAESI Act through the authorised officer who is appointed under Section 13(2). Thus, the authorised officer and the Bank cannot act in a manner so as to keep the sword hanging on the neck of the auction purchaser. The law treats everyone equally and that includes the Bank and its officers. The said enactments were enacted for speedy recovery and for benefitting the public at large and does not give any license to the Bank officers to act de hors the scheme of the law or the binding verdicts –Equity – equity cannot supplant the law. Equity has to follow law, if the law is clear and unambiguous

State of Madhya Pradesh vs Bhupendra Yadav – 2023 INSC 837 – An employer has the discretion to terminate or condone an omission in the disclosure made by a candidate. While doing so, the employer must act with prudence, keep in mind the nature of the post and the duties required to be discharged. Higher the post, more stringent ought to be the standards to be applied. Even if a truthful disclosure has been made, the employer is well within its right to examine the fitness of a candidate and in a concluded criminal case, keep in mind the nature of the offence and verify whether the acquittal is honourable or benefit has been extended on technical reasons. If the employer arrives at a conclusion that the incumbent is of a suspect character or unfit for the post, he may not be appointed or continued in service – Police Service – The standard of rectitude to be applied to any person seeking appointment in a Law Enforcement Agency must always be higher and more rigourous for the simple reason that possession of a higher moral conduct is one of the basic requirements for appointment to a post as sensitive as that in the police service.

Shivani vs State of UP SLP(Crl) 451 of 2020 – Criminal Procedure Code – Section 319 CrPC – Summoning order against Appellants (brother and sister-in-law of the husband of the deceased lady) set aside – No specific allegation against the appellants barring allegations of harassment, which are omnibus in nature.

Appaiya vs Andimuthu@ Thangapandi 2023 INSC 835– Civil Procedure Code – Section 100 CPC– What is the meaning of the phrase “substantial question of law” in Section 100 of Code of Civil Procedure ? The test is whether it is of general public importance or whether it directly or substantially affects the right of the parties or whether the question is still open i.e., it is not finally settled by the Supreme Court- The word substantial, as qualifying “question of law”, means — of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with — technical, of no substance or consequence, or academic merely-Legislature has chosen not to qualify the scope of “substantial question of law” by suffixing the words “of general importance” as has been done in many other provisions such as Section 109 of the Code or Article 133(1)(a) of the Constitution. The substantial question of law on which a second appeal shall be heard need not necessarily be a substantial question of law of general importance- A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law- To be “substantial” a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law “involving in the case” there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter- It will depend on the facts and circumstance of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicious balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.-When court is called upon to interpret documents and examine their effect, depending upon the nature of controversy and the issues involved, it would constitute substantial question (s) of law. Evidence Act – Whether there exists any law declaring such certified copy of a public document as admissible in evidence for the purpose of proving the contents of its original document. Subsection (5) of Section 57 of the Registration Act is the relevant provision that provides that certified copy given under Section 57 of the Registration Act shall be admissible for the purpose of proving the contents of its original document. In this context it is to be noted that certified copy issued thereunder is not a copy of the original document, but is a copy of the registration entry which is itself a copy of the original and is a public document under Section 74(2) of the Evidence Act and Sub-section (5) thereof, makes it admissible in evidence for proving the contents of its original.

Samir Kumar Majumder vs Union of India – 2023 INSC 836 -Constructive Res Judicata – Service Law

Ajmal Ahmed R. vs Union of India – CA 5404 OF 2023 – “It is not within the Court’s domain to decide as to what would be the choice of food for the children of a particular region for Mid­day Meal Scheme. “ “There is no scope of guess work by the law Courts on that count and the Court will have to accept the administrative decision in that regard unless some outstanding arbitrariness is pointed out.” Supreme Court made these observations while dismissing the plea challenging modification in menu for mid­day meals supplied to the school students by the Lakshadweep Administration, dropping meat and chicken. The court noted the submission that the Administration has retained non­-vegetarian items like egg and fish. The court said it does not find the decisions of the Administration to be ‘befouled with such degree of arbitrariness.’

Rameshji Amarsing Thakor vs State of Gujarat –CrA 1183 of 2016 “..Exaggerated devotion to rule of benefit of doubt must not nurture fanciful doubts letting guilty escape..” “An eyewitness to a gruesome killing cannot in deposition narrate blow by blow account of the knife strikes inflicted on the deceased like in a screenplay.” Supreme Court made these observations while upholding conviction of a murder accused.

Ram Murti Shukla vs State of UP CrA 2788 of 2023 – Code of Criminal Procedure – Section 482 – Normally the power under Section 482, Cr.P.C. is to be exercised sparingly but the very sequence of events stated herein in the complaint case filed makes it quite obvious that almost an unbelievable story has been made to somehow create a case under Section 392, IPC as a counter blast to the proceedings pending against the respondent (complainant).

Shahid Hussain vs Mahtaba Begum – SLP(C) 4698-4700 OF 2018 – Trial Court passed a decree. First Appellate Court passed a remand order. Against this, a party filed appeal before High Court as remand order is an appealable order under Order XLIII Rule 1(u) CPC – The said appeal before HC is not available as a matter of right. “This is consistent with the public policy.. For all purposes, an appeal under clause (u) of Rule 1 of Order XLIII of the CPC will be treated as a second appeal under Section 100 of the CPC.” So the appeal against a remand order can be heard provided a substantial question of law within the meaning of Section 100 of the CPC arises.

Bijoy Shankar Mishra vs State of Jharkhand SLP (Crl.) No. 894/2022 – “The Code (CrPC) is procedural in nature and technical defects and irregularities should not come in the way of substantial justice” X filed cheque case before a Magistrate Court. It took cognizance, summoned accused and recorded evidence. At the time of final arguments, Magistrate found that he did not have territorial jurisdiction and thus discharged the accused. High Court dismissed X’s petition and upheld Magistrate’s order. Allowing X’s appeal, the Supreme Court observed that the Magistrate had passed the order without realizing the legal consequences as well as the fact that the trial had remained pending for more than four years and had proceeded without any objection to territorial jurisdiction, till the stage of final arguments. The court therefore invoked Article 142 powers and set aside the Magistrate’s order and directed that the trial will continue.

Keshav Sood vs Kirti Pradeep Sood – CA 5841 OF 2023 – Can the issue of res judicata be decided in an application seeking rejection of the plaint under Order VII Rule 11? In a recent order, the Supreme Court observed that the issue of res judicata cannot be decided on an application under Order VII Rule 11 CPC. This is because: The reason is that the adjudication on this issue involves consideration of the pleadings in the earlier suit, the judgment of the Trial Court and the judgment of the Appellate Courts -The Court can look into only the averments made in the plaint and at the highest, documents produced along with the plaint. -The defence of a defendant and documents relied upon by him cannot be looked into while deciding such application.

National Insurance Company Ltd vs National Building Construction India Ltd. SLP(C) 5383 of 2020 – Code of Civil Procedure – Service contemplated in terms of Order V Rule 2 of the Code would imply service of summons along with the copy of the plaint.

Shiv Kumar vs State of UP CrA 2782 of 2023 – Directions issued – henceforth, all cases arising out of the principal crime,should be tried and decided in the course of the same trial before the same judge instead of being bifurcated and sent for trial to different courts, unless and until a Court has been specially designated to try an offence under a particular Statute – Secretary (Home), State of Uttar Pradesh, to take immediate remedial measures to sensitize and streamline the Directorate of Prosecution, which is the very backbone of the criminal justice system and cannot afford to falter.

Principal Commissioner Of Income Tax – 10 vs Krishak Bharti Cooperative Ltd 2023 INSC 834 – Appellant has not been able to demonstrate as to why the provisions contained in Article 25 of DTAA and Article 8 (bis) of the Omani Tax Laws would not be applicable – the assessee is entitled to claim the tax credit, which has been allowed by the Assessing Officer.

People’s Union for Civil Liberties vs The State of Maharashtra 2023 INSC 833 – Union Ministry of Home Affairs should prepare a comprehensive manual on media briefings by police personnel – ensure that the disclosure does not result in a media trial so as to allow for the pre-judging of the guilt of the accused. Media trials are liable to result in a derailment of justice by impacting upon the evidence which would be adduced and its assessment by the adjudicating authorities.

Bajaj Alliance General Insurance Co Ltd vs Rambha Devi – 2023 INSC 832 – whether a person holding a driving licence in respect of a “light motor vehicle” could on the strength of the licence be entitled to drive a “transport vehicle of light motor vehicle class” having unladen weight not exceeding 7500 kgs – The decision in Mukund Dewangan vs Oriental Insurance Company Limited (2017) 14 SCC 663 has held the field for nearly six years and the impact of the reversal of the decision, at this stage, particularly on the social sector, is a facet which would have to be placed in balance by the policy arm of the Government – it would be appropriate if the entire matter is evaluated by the Government before this Court embarks upon the interpretative exercise.

Buddhadeb Saha vs State of West Bengal CrA 1692 of 2022 – Section 304B –Conviction of accused upheld – Where the deceased dies as a result of poisoning, it is difficult to successfully isolate the poison and recognise it. Lack of positive evidence in this respect would not result in throwing out the entire prosecution case, if the other circumstances clearly point out the guilt of the accused.- We find it difficult to take the view that in the absence of any positive viscera report, the prosecution could be said to have failed to establish its case.

V E Maya vs K S Vetrivel SLP(C) 11761 of 2022 – Section 13 HMA – High Court committed error of law by relying on the principle of irretrievable breakdown of marriage to dissolve the marriage between the parties in a contested divorce proceeding.

Ashok Kumar Goel vs Ram Niwas Goel – SLP(C) .6474-6475/2019 -Section 100 CPC (second appeal)- High Court judgment in a second appeal set aside by the Supreme Court on the ground of non framing of substantial questions of law. In this case, Uttarakhand High Court framed a substantial question of law only to recall it later. Thereafter without framing a new substantial question of law, it disposed of the second appeal re-appreciating evidence. Supreme Court now set aside this HC judgment and directed it to consider the second appeal afresh. “if the appeal was entertained without framing substantial questions of law, then it would be illegal and would amount to failure or abdication of the duty cast on the court. Further, it was held that existence of substantial question of law is the sine qua non for exercise of power under Section 100, Code“.

Brihan Karan Sugar Syndicate Private Limited vs Yashwantrao Mohite Krushna Sahakari Sakhar Karkhana – 2023 INSC 831 – Trademark & Passing Off Action -The volume of sale and the extent of advertisement made of the product in question will be a relevant consideration for deciding whether the appellant had acquired a reputation or goodwill. – The passing off action which is premised on the rights of the prime user generating goodwill, shall remain unaffected by any registration provided in the Act. – If goodwill or reputation in a particular jurisdiction is not established by the plaintiff, no other issue really would need any further examination to determine the extent of the plaintiff’s right in the action of passing ­off. -For establishing goodwill of the product, it was necessary to prove not only the figures of sale of the product but also the expenditure incurred on promotion and advertisement of the product. -While deciding an application for a temporary injunction in a suit for passing­off action, in a given case, the statements of accounts signed by the Chartered Accountant of the plaintiff indicating the expenses incurred on advertisement and promotion and figures of sales may constitute a material which can be considered for examining whether a prima facie case was made out by the ­plaintiff. However, at the time of the final hearing of the suit, the figures must be proved in a manner known to law – Copyright Infringement – Acquiescence is a defence available in action for the infringement of copyright- If the acquiescence in infringement amounts to consent, it will be a complete defence. Acquiescence is a course of conduct inconsistent with the claim for exclusive rights and it applies to positive acts and not merely silence or inaction such as is involved in laches. Mere negligence is not sufficient – Advocacy – Fairness is a hallmark of great advocacy.” “Members of the Bar are expected to act as officers of the Court, to conduct themselves in a reasonable and fair manner.” Supreme Court reminds lawyers ! The Court, referred to the National Judicial Data Grid, and found that there is a huge pendency of suits in the Trial Courts in the State of Maharashtra. In this case, due to persistent objections raised by an Advocate, the Trial Court had to record a substantial part of the cross­ examination in question­ and answer form which consumed a lot of time of the Court. Taking note of this, the Apex court said: “If the members of the Bar do not cooperate with the Trial Courts, it will be very difficult for our Courts to deal with the huge arrears. …. If the advocates start objecting to every question asked in the cross examination, the trial cannot go on smoothly. The trial gets delayed”

KS Palanisamy (D) vs Hindu Community in General And Citizens OF Gobichettipalayam – MA 548-549/2018 – Courts should not permit hearing of such an applications for ‘clarification’, ‘modification’ or ‘recall’ if the application is in substance a clever move for review. – Supreme Court dismisses an application for clarification. Says it is a review application in disguise.

Om Parkash @ Atam Parkash vs Sohan Lal 6398-6399/2017 –A Civil suit of the year 1987. Dismissed by Trial Court. First Appeal also dismissed by the first appellate court. Second appeal filed by plaintiff in the year 1990 before Punjab & Haryana High Court. After 26 years, High Court allowed second appeal and decreed the suit in 2016. Defendant filed SLP before Apex Court in 2017. Now, six years later, Supreme Court allows appeal and sets aside High Court judgment noticing that the HC had disposed appeal in a very cryptic and telegraphic manner. High Court has been directed to take fresh decision in the second appeal. In short, a second appeal remained pending for 26 years in High Court which was ultimately allowed. Further, Supreme Court took another six years to find out that the High Court had disposed the second appeal in a very cryptic and telegraphic manner. Now RSA …./1990 is restored to the file of High Court !

Kerala State Co-operative Agricultural and Rural Development Bank vs Assessing Officer, Trivandrum 2023 INSC 830 – When the definition of “co-operative bank” in Section 56 of Banking Regulation Act, 1949 is viewed in terms of Sections 2(u) of the NABARD Act, 1981, it is clear that only a state co-operative bank would be within the scope and meaning of a banking company under Section 2(c) of the BR Act, 1949 on obtaining licence under Section 22 of the said Act – Appellant society is an apex cooperative society within the meaning of the State Act, 1984, it is not a co-operative bank within the meaning of Section 5(b) read with Section 56 of the BR Act, 1949 – the appellant is entitled to the benefit of deduction under Section 80P of the Income Tax Act.

Javed Shaukat Ali Qureshi vs State Of Gujarat – 2023 INSC 829 – Can Supreme Court suo moto invoke Article 136 jurisdiction to acquit an accused (who did not prefer appeal) on the ground of parity? Here is one such case: Out of 7 people convicted by the High Court, 5 preferred SLP/appeals before the Apex Court at different points of time. One SLP was dismissed in limine against one accused (in 2018). Appeals by three were heard together and they were acquitted (in 2018) Now, appeal by one accused was allowed and he was also acquitted. Even though two accused did not file appeal, the Court acquitted them too on the ground of parity. It even recalled the order dismissing SLP filed by one accused and acquitted him. On invocation of Article 136 Jurisdiction suo motu, the court said: the jurisdiction under Article 136 of the Constitution of India can be invoked in favour of the party even suo moto when the Court is satisfied that compelling ground for its exercise exists. However, such suo moto power should be used very sparingly with caution and circumspection. The power must be exercised in the rarest of the rare cases. The court also said: “”When there is similar or identical evidence of eyewitnesses against two accused by ascribing them the same or similar role, the Court cannot convict one accused and acquit the other. In such a case, the cases of both the accused will be governed by the principle of parity. This principle means that the Criminal Court should decide like cases alike, and in such cases, the Court cannot make a distinction between the two accused, which will amount to discrimination”.

S G Vombatkere vs Union of India WP(C) 682 of 2021 – Fundamental rights do not exist in silos, the Supreme Court observed while it referred the challenge against constitutional validity of Section 124A IPC (sedition) to a larger bench. The court noted that the Kedar Nath Singh Vs State of Bihar did not : (1) make a distinction between the State which falls within the ambit of Article 19(2) and the Government, which does not (2) consider the validity of the provision against a constitutional challenge on the basis of Article 14. The court also rejected the Union Government’s plea to defer considering whether a reference should be made to a larger bench. It had submittted that the Parliament is in the process of reenacting the provisions of the Penal Code and the Bill has been placed before a Standing Committee. “The validity of the prosecutions which have been launched or would be launched so long as Section 124A continues to remain on the statute would have to be assessed under it. The issue of the validity of the provision for the period that it continues to operate would, therefore, need to be determined.”, the court noted.

B.C. Nagaraj vs State of Karnataka 2023 INSC 828 – Service

Chen Khoi Kui Vs Liang Miao Sheng 2023 INSC 827 – West Bengal Registration Act, 1961

Rupesh Manger (Thapa) vs State of Sikkim –2023 INSC 826 – “The standard of proof to prove the lunacy or insanity is only ‘reasonable doubt..The court is concerned with legal insanity and not with medical insanity.” Accused allegedly murdered his grand father. Trial Court acquitted accused on the ground of insanity.High Court reversed this finding and convicted him. Now, Supreme Court restores acquittal taking note of medical evidence about his mental illness and evidence regarding his abnormal behaviour at the time of occurrence.

Vasant Nature Cure Hospital & Pratibha Maternity Hospital Trust Vs Ukaji Ramaji (D) 2023 INSC 825 – No litigant should be permitted to be so lethargic and apathetic much less should be permitted to misuse the process of law.

State of West Bengal vs Chiranjilal (Mineral) Industries of Bagandih 2023 INSC 824 – West Bengal Land Reforms Act, 1955 – Mines and Minerals (Development and Regulation) Act, 1957

A Valliammai vs KP Murali 2023 INSC 823 – Article 54 of Part II of the Schedule to the Limitation Act, 1963 – Limitation period for filing a suit for specific performance –  The court will have to see whether any time was fixed for performance of the agreement to sell and if so fixed, whether the suit was filed beyond the prescribed period, unless a case for extension of time or performance was pleaded or established. However, when no time is fixed for performance, the court will have to determine the date on which the plaintiff had notice of refusal on part of the defendant to perform the contract.

Jamboo Bhandari vs MP State Industrial Development Corporation Ltd – 2023 INSC 822 – Section 148 Negotiable Instruments Act – Section 389 CrPC- The view that the deposit of minimum 20% amount is an absolute rule which does not accommodate any exception is erroneous – Normally, the Appellate Court will be justified in imposing the condition of deposit as provided in Section 148. However, in a case where the Appellate Court is satisfied that the condition of deposit of 20% will be unjust or imposing such a condition will amount to deprivation of the right of appeal of the appellant, exception can be made for the reasons specifically recorded. 

Bhaktu Gorain vs State of West Bengal 2023 INSC 821 – Murder Case- Conviction and life sentence affirmed.

Axis Bank Limited vs Naren Sheth 2023 INSC 820 – Section 7 IBC – Section 18 Limitation Act

Religare Finvest Limited vs State of NCT of Delhi 2023 INSC 819 – Section 482 CrPC – Criminal cases against DBS Bank Directors quashed – Amalgamation – “The power to quash a criminal investigation or proceedings should not be lightly exercised. Yet, to refuse recourse to that power, in cases that require or may demand it, is being blind to justice, which the courts can scant afford to be.”

Loonkaran Gandhi(D) vs State of Maharashtra – 2023 INSC 818 – Land Acquisition – State and its authorities to pass an award within a reasonable time.

CBI vs RR Kishore – 2023 INSC 817 – Retrospectivity of Subramanian Swamy vs Director CBI judgment quashinng Section 6A DSPE Act – Once a law is declared to be unconstitutional, being violative of Part-III of the Constitution, then it would be held to be void ab initio, still born, unenforceable and non est – The declaration made by the Constitution Bench in the case of Subramanian Swamy vs. Director,CBI (2014) 8 SCC 682 will have retrospective operation. This means that Section 6A of the Delhi Special Police Establishment Act is held to be not in force from the date of its insertion i.e. 11.09.2003  – Article 20 – Sub-article (1) of Article 20 of the Constitution consists of two parts. The first part prohibits any law that prescribes judicial punishment for violation of law with retrospective effect. Subarticle (1) to Article 20 of the Constitution does not apply to civil liability, as distinguished from punishment for a criminal offence. Further, what is prohibited is conviction or sentence for any offence under an ex post facto law, albeit the trial itself is not prohibited. Trial under a procedure different from the one when at the time of commission of an offence, or by a court different from the time when the offence was committed is not unconstitutional on account of violation of sub-article (1) to Article 20 of the Constitution. It may be different, if the procedure or the trial is challengeable on account of discrimination under Article 14 of the Constitution or violation of any other fundamental right- The right under first part of sub-article (1) to Article 20 of the Constitution is a very valuable right, which must be safeguarded and protected by the courts as it is a constitutional mandate – the second part of sub-article (1) to Article 20, which states that a person can only be subjected to penalties prescribed under the law at the time when the offence for which he is charged was committed. Any additional or higher penalty prescribed by any law after the offence was committed cannot be imposed or inflicted on him. The sub-article does not prohibit substitution of the penalty or sentence which is not higher or greater than the previous one or modification of rigours of criminal law – Article 20(1) of the Constitution only and only confines to conviction and sentence. It does not at all refer to any procedural part which may result into conviction or acquittal and/or sentence.

RPS Infrastructure Ltd vs Mukul Kumar 2023 INSC 816 – Caution against allowing claims after the resolution plan has been accepted by the COC – The mere fact that the Adjudicating Authority has yet not approved the plan does not imply that the plan can go back and forth, thereby making the CIRP an endless process. This would result in the reopening of the whole issue, particularly as there may be other similar persons who may jump onto the bandwagon – We find it difficult to unleash the hydra-headed monster of undecided claims on the resolution applicant.

Eva Agro Feeds Private Limited vs Punjab National Bank 2023 INSC 809 – Section 5(24) – Related Party- the expressions ‘related party’ and ‘relative’ contained in the definition sections must be read noscitur a sociis with the categories of person mentioned in Explanation I. So read, it would include only persons who are connected with the business activity of the resolution applicant – The expression ‘connected person’ would also cover a person who is in management or control of the business of the corporate debtor during the implementation of a resolution plan – Swiss Ribbons Private Limited and Another Versus Union of India (2019) 4 SCC 17 – Section 29A – Crucial link in ensuring that the objects of the Code are not defeated by allowing ‘ineligible persons’ responsible for running a company (corporate debtor) aground, to return in the new avatar of a resolution applicant.

N Ramkumar vs State 2023 INSC 812 – Section 300 IPC – It would be unsafe to treat ‘intent’ and ‘knowledge’ in equal terms. They are not different things. Knowledge would be one of the circumstances to be taken into consideration while determining or inferring the requisite intent. Where the evidence would not disclose that there was any intention to cause death of the deceased but it was clear that the accused had knowledge that his acts were likely to cause death, the accused can be held guilty under second part of Section 304 IPC. It is in this background that the expression used in Indian Penal Code namely “intention” and “knowledge” has to be seen as there being a thin line of distinction between these two expressions. The act to constitute murder, if in given facts and circumstances, would disclose that the ingredients of Section 300 are not satisfied and such act is one of extreme recklessness, it would not attract the said Section. In order to bring a case within Part 3 of Section 300 IPC, it must be proved that there was an intention to inflict that particular bodily injury which in the ordinary course of nature was sufficient to cause death. In other words, that the injury found to be present was the injury that was intended to be inflicted – “Culpable homicide” is a genus and “murder” is its species and all “murders” are “culpable homicides, but all “culpable homicides” are not “murders”. The intention of the accused must be judged not in the light of actual circumstances, but in the light of what is supposed to be the circumstances.

 Satnam Singh vs State of Uttaranchal – CrA 2723/2023 – Section 307 IPC – It is the degree of the injury and the nature of surrounding circumstances which are decisive in any given case. The circumstances in this case proved by the prosecution are that rather unusually the accused was literally stalking the victim at 1.00 in the morning and when the opportunity arose, he shot at him. This, ipso facto, establishes that the intention was to cause serious if not fatal injury. Consequently, the conviction under Section 307 IPC cannot be faulted – 10 years rigorous imprisonment is rather too severe and harsh. It is in any number of decided cases, 4 this Court has held that even for a grave offence punishable under Section 304 Part II IPC, ordinarily a standard sentence of upto 5 years to 7 years has been imposed. In these circumstances, the given sentence of 10 years RI is hereby modified to one of 3 years RI. This Court also is cognizant that no antecedents showing violence of the appellant, or his proneness to such behaviour have been shown.

Ilavarasan vs Superintendent of Police 2023 INSC 813. – Section 7A HMA (applicable in Tamil Nadu) – Section 7A required the intending spouses to declare and express to each other their willingness to take each other as spouses and symbolically garlanding each other and tying a “Thali”. In S. Balakrishnan Pandiyan v Inspector of Police, 2014 (7) MadLJ 651, Madras High Court interpreted the procedure of declaration by the intending spouses “in the presence of relatives, friends or other persons”. Now, the Supreme Court held that this view is erroneous as it is premised on the assumption that every marriage requires a public solemnization or declaration. The court observed: Such a view is simplistic because often due to parental or pressure among kinship groups, or caste/community institutions, couples intending to enter into matrimony, may not be able to, for the reasons of such opposition- hold or give such a public declaration. Doing so would imperil their lives or could in the very least likely result in danger to their bodily integrity or at worst, a forceable or coerced separation of one from the other. It is not hard to visualize other pressures being brought to bear upon two individuals, who are otherwise adults and have exercised their freewill. To superimpose the condition of a public declaration, which is absent in section 7A , in the opinion of this Court, it is not only narrowing the otherwise wide import of the statue but also would be violative of the rights under Article 21 of the Constitution of India – Advocacy – Advocates or lawyers should not, while acting as counsel or advocates or their capacity as advocates, undertake or volunteer to solemnize marriages. That can well result in Advocates chambers or offices turning out to be matrimonial “establishment”- a consequence never intended- or perhaps never contemplated by law. However, in their capacity as friends or relatives of the intending spouses, their role as witnesses cannot be ruled out.

 K. Hymavathi vs State of Andhra Pradesh 2023 INSC 811 – Negotiable Instruments Act – Section 138,139 – Time Barred cheque – If the question as to whether the debt or liability being barred by limitation was an issue to be considered in such proceedings, the same is to be decided based on the evidence to be adduced by the parties since the question of limitation is a mixed question of law and fact. It is only in cases wherein an amount which is out and out non-recoverable, towards which a cheque is issued, dishonoured and for recovery of which a criminal action is initiated, the question of threshold jurisdiction will arise. In such cases, the Court exercising jurisdiction under Section 482 CrPC will be justified in interfering but not otherwise – Entertaining a petition under Section 482 CrPC to quash the proceedings at the stage earlier to the evidence would not be justified (Para 10) .

RA Samy vs C Ravichandran – CrA 2732/2023 – Section 141 NI Act- Dishonoured cheque was issued by Director on behalf of company. Cheque bounce complaint was filed under Section 138 Negotiable Instruments Act and only this director is the sole accused. Can such a complaint be entertained ? A criminal complaint under Section 138 of the Negotiable Instruments Act, 1881 cannot be proceeded with without making the company as accused in the case – 

NHPC Ltd vs State of Himachal Pradesh– 2023 INSC 810 Can legislature set aside a judgment ? What is Doctrine of Abrogation ? Law on the adoption of the legislative device of abrogation, to remove the basis of a judgment of a Court in a legislation – A legislature cannot directly set aside a judicial decision. However, when a competent legislature retrospectively removes the substratum or foundation of a judgment to make the decision ineffective, the same is a valid legislative exercise provided it does not transgress on any other constitutional limitation- There is no legal impediment to enacting a law to validate a legislation which has been held by a court to be invalid, provided, such a law removes the basis of the judgment of the court, by curing the defects of the legislation as it stood before the amendment.-The validating legislation may be retrospective. It must have the effect that the judgment pointing out the defect would not have been passed, if the altered position as sought to be brought in by the validating statute existed before the court at the time of rendering its judgment.- Retrospective amendment should be reasonable and not arbitrary and must not be violative of any Constitutional limitations.- Setting at naught a decision of a court without removing the defect pointed out in the said decision is opposed to the rule of law and the scheme of separation of powers under the Constitution of India.- Abrogation is not a device to circumvent an unfavourable judicial decision. If enacted solely with the intention to defy a judicial pronouncement, such amendment/legislation may be declared as ultra-vires.

ARN Infrastructure India Limited vs Hara Prasad Ghosh CA (Diary) 31182 of 2023 – Consumer Protection Act– Practice and Procedure – Although the opposite party had not filed its version and may not have participated in the proceedings before the NCDRC, nevertheless, had the right to address final arguments before the NCDRC.

Rohit Chaudhary vs Vipul Ltd 2023 INSC 807 – Consumer Protection Act, 1986 – Section 2(1)(d) – Interpretation of the word and expression “Commercial Purpose” – When there is an assertion in the complaint filed before the Consumer Court or Commission that such goods are purchased for earning livelihood, such complaint cannot be nipped at the bud and dismissed. Evidence tendered by parties will have to be evaluated on the basis of pleadings and thereafter conclusion be arrived at. Primarily it has to be seen as to whether the averments made in the complaint would suffice to examine the same on merits and in the event of answer being in the affirmative, it ought to proceed further. On the contrary, if the answer is the negative, such complaint can be dismissed at the threshold. Thus, it would depend on facts and circumstances of each case. There cannot be any defined formula with mathematical precision to examine the claims for non-suiting the complainant on account of such complaint not falling within the definition of the expression ‘consumer’ as defined under Section 2(1)(d).

 Balwantbhai Somabhai Bhandari Vs Hiralal Somabhai Contractor – 2023 INSC 805 – Contempt of Courts Act – An assurance in the form of an undertaking given by a counsel / advocate on behalf of his client to the court; the wilful breach or disobedience of the same would amount to “civil contempt” as defined under Section 2(b) of the Contempt of Court Act 1971 -An undertaking given to a party to the lis by way of an agreement of settlement or otherwise would not attract the provisions of the Act 1971 –The apology tendered should not be accepted as a matter of course and the court is not bound to accept the same. The apology may be unconditional, unqualified and bona fide, still if the conduct is serious, which has caused damage to the dignity of the institution, same should not be accepted. There ought not to be a tendency by courts, to show compassion when disobedience of an undertaking or an order is with impunity and with total consciousness – Although the transfer of the suit property pendente lite may not be termed as void ab initio yet when the court is looking into such transfers in contempt proceedings the court can definitely declare such transactions to be void in order to maintain the majesty of law. Apart from punishing the contemnor, for his contumacious conduct, the majesty of law may demand that appropriate directions be issued by the court so that any advantage secured as a result of such contumacious conduct is completely nullified. This may include issue of directions either for reversal of the transactions by declaring such transactions to be void or passing appropriate directions to the concerned authorities to ensure that the contumacious conduct on the part of the contemnor does not continue to enure to the advantage of the contemnor or any one claiming under him.– The beneficiaries of any contumacious transaction have no right or locus to be heard in the contempt proceedings on the ground that they are bona fide purchasers of the property for value without notice and therefore, are necessary parties. Contempt is between the court and the contemnor and no third party can involve itself into the same 

Union Territory of Ladakh vs Jammu and Kashmir National Conference – 2023 INSC 804 – Can High Courts refuse to decide cases on the ground that the leading judgment of the Supreme Court is (1) referred to a larger Bench or (2) a review petition relating thereto is pending or (3) a later Coordinate Bench has doubted its correctness ? No ! High Courts have to proceed to decide matters on the basis of the law as it stands ! It is not open to a High Court to refuse to follow a judgment by stating that it has been doubted by a later Coordinate Bench. In any case, when faced with conflicting judgments by Benches of equal strength of this Court, it is the earlier one which is to be followed by the High Courts. 

Union of India vs Manjurani Routray – 2023 INSC 787 – Article 226 Constitution of India– For striking down the provisions of law or for declaring any rules as ultra vires, specific pleading to challenge the rules and asking of such relief ought to be made -Supreme Court sets aside HC judgment that had struck down Rule 4(b) of Ministry of Information Technology (in-situ Promotion under Flexible Complementing Scheme) Rules 1998.

Roopa Soni vs Kamalnarayan Soni | 2023 INSC 814 –Section 13 HMA – An element of subjectivity has to be applied albeit, what constitutes cruelty is objective. Therefore, what is cruelty for a woman in a given case may not be cruelty for a man, and a relatively more elastic and broad approach is required when we examine a case in which a wife seeks divorce. – Historically, the law of divorce was predominantly built on a conservative canvas based on the fault theory. Preservation of marital sanctity from a societal perspective was considered a prevailing factor. With the adoption of a libertarian attitude, the grounds for separation or dissolution of marriage have been construed with latitudinarianism – The court must also keep in mind that the home which is meant to be a happy and loveable place to live, becomes a source of misery and agony where the partners fight. When there are children they become direct victims of the said fights, though they may practically have no role in the breakdown of marriage. They suffer irreparable harm especially when the couple at loggerheads, remain unmindful and unconcerned about the psychological and mental impact it has on her/him – Section 23 HMA – Condonation of cruelty by the petitioner in a divorce petition filed on the ground of cruelty, and non-suiting a decree of divorce – It has to be seen in context with the position of a man and woman in a marital relationship. In other words, Section 23(1) is a word of caution to check cases of abuse and misuse of law to get relief. To elaborate, due to her unenviable position, a wife may not be in a state to raise her voice and express her dissent, which cannot be construed as a passive consent. – Court before granting any relief under the Act shall, in the first instance, where it is possible in the nature and circumstances of the case, make every endeavour to bring about reconciliation between the parties. The proviso carves out certain exceptions with which we are not concerned -The object and purpose of these provisions is to check any party taking advantage of social and economic inequalities between the sexes given the fact that on many occasions a divorce may solve one problem, but create another when the woman is separated both socially and economically.

Oriental Structural Engineers Pvt. Limited Vs  Secretary To Government Public Works (D) Department, Government Of Kerala – SLP(C) 22075/2022 – Arbitration and Conciliation Act – Section 37 – When the view expressed by the Tribunal is a plausible view, in exercise of powers conferred under Section 37 of the Arbitration Act, the said view cannot be replaced though another view is also possible.

Revanasiddappa v. Mallikarjun 2023 INSC 783 – Hindu Marriage Act ; Section 16 – Hindu Succession Act ; Section 6 – Right of children from void/voidable marriages to their parents’ share in Hindu Undivided Family Property (governed by Mitakshara law) –  For the purpose of ascertaining the interest of a deceased Hindu Mitakshara coparcener, the law mandates the assumption of a state of affairs immediately prior to the death of the coparcener namely, a partition of the coparcenary property between the deceased and other members of the coparcenary. Once the share of the deceased in property that would have been allotted to him if a partition had taken place immediately before his death is ascertained, his heirs including the children who have been conferred with legitimacy under Section 16 of the HMA 1955, will be entitled to their share in the property which would have been allotted to the deceased upon the notional partition, if it had taken place; The provisions of the HSA 1956 have to be harmonized with the mandate in Section 16(3) of the HMA 1955 which indicates that a child who is conferred with legitimacy under sub-sections (1) and (2) will not be entitled to rights in or to the property of any person other than the parents. The property of the parent, where the parent had an interest in the property of a Joint Hindu family governed under the Mitakshara law has to be ascertained in terms of the Explanation to sub-section (3), as interpreted above – The very concept of a coparcener postulates the acquisition of an interest by birth. If a person born from a void or voidable marriage to whom legitimacy is conferred by sub-sections (1) or (2) of Section 16 were to have an interest by birth in a Hindu Undivided Family governed by Mitakshara law, this would certainly affect the rights of others apart from the parents of the child. Holding that the consequence of legitimacy under sub-sections (1) or (2) of Section 16 is to place such an individual on an equal footing as a coparcener in the coparcenary would be contrary to the plain intendment of sub-section (3) of Section 16 of the HMA 1955 which recognises rights to or in the property only of the parents. In fact, the use of language in the negative by Section 16(3) places the position beyond the pale of doubt. We would therefore have to hold that when an individual falls within the protective ambit of sub-section (1) or sub-section (2) of Section 16, they would be entitled to rights in or to the absolute property of the parents and no other person. 

Derha vs Vishal | 2023 INSC 785 – Hindu Succession Act ; Section 6 – Explanation 1 to Section 6 provides a fictional expedient, namely, that his share is deemed to be the share in the property that would have been allotted to him if a partition had taken place immediately before his death. Once that assumption has been made for the purpose of ascertaining the share of the deceased, one cannot go back on the assumption and ascertain the shares of the heirs without reference to it, and all the consequences which flow from a real partition have to be logically worked out, which means that the shares of the heirs must be ascertained on the basis that they had separated from one another and had received a share in the partition which had taken place during the life-time of the deceased. In effect, the Bench held that the inevitable corollary of this position is that the heir will get his or her share in the interest which the deceased had in the coparcenary property at the time of his death, in addition to the share which he or she received or must be deemed to have received in the notional partition –