Extent of right to Self-Defence: Sec99 IPC

Q) A and B were both security guards posted outside the home of a senior army officer, Mr X. They often used to exchange hot words with each other in context to the other. On the day of holi festival both of them had a verbal exchange due to the fact that both wanted to go to home early for festival that led to altercation b/w the two, both of them instantaneously aimed their revolvers at each other respectively. ‘C’ who was also on duty with them intervened and pacified both of them. Both agreed to lower their weapons respectively. The moment ‘B’ noted that ‘A’ had lowered his revolver, he immediately fired at ‘A’ and killed him. On being tried ‘B’ was awarded death sentence. However, on appeal the HC acquitted ‘B’ on the plea of self-defence. The state intends to go in for appeal in the SC against the decision of HC. Advise in light of the case-law on the subject

 On perusal of the facts provided following are crucial:

a) It is a recorded fact that both A and B had no liking for each other and they would often engage in verbal spat

b) ‘B’ act of firing upon A was a  conscious fact for a simple reason that he waited for ‘A’ to lower his weapon. And seeing ‘A’ do so he fired the shot killing A

For completion of offence under Sec 300 culpable homicide of the degree mentioned in any of the four clauses of Sec 300 must be proved. The first three are at higher level as ‘intention’ of offender in causing death must be proved whereas for fourthly ‘knowledge’ of offender in causing death must be shown. Besides these other attributes too form part of these clauses

In the giving circumstances there is no doubt in the fact that B had garnered intention to kill A. this is clear from the fact that both A and B often entered in hot verbal exchanges in some context or other. The plea of self-defence has no application in this case because it is a noted fact that A had lowered his gun after which B shot him. This subsequent conduct of B precisely demolishes the self-defence plea because Sec 99 para 4 (IPC ) lays :

“ the right of self-defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence”

When A had lowered his gun the danger on B’s life ceased but B still had grudge against A which resulted in him firing at A and killing him. There cannot be a malicious or vindictive intent in act of self-defence.

Even Sec 100 under which the right of private defence to cause death is included, the restricitons are explicit: 

" When the right of private defence of the body extends to causing death.—The right of private defence of the body extends, under the restrictions mentioned in the last preceding section, to the voluntary causing of death or of any other harm to the assailant, if the offence which occasions the exercise of the right be of any of the descriptions hereinafter enumerated, namely:—

(First) — Such an assault as may reasonably cause the apprehension that death will otherwise be the consequence of such assault"

There was no resonable apprehension on B's life or limb when A had lowered his pistol, still B shot A.  

In Darshan Singh v State of Punjab [(2010) 2 SCC 333] it was stated:

“ When there is real apprehension that the aggressor might cause death or grievous hurt, in that event the right of private defence of the defender could even extend to causing of death. A mere reasonable apprehension is enough to put the right of self-defence into operation, but it is also

settled position of law that a right of self-defence is only right to defend oneself and not to retaliate. It is not a right to take revenge.”

 In Mahabir Choudhary v. State of Bihar [(1996) 5 SCC 107] where accused were alleged to have exceeded their private defence against property…..“The court observed that right to private defence cannot be used to kill the wrongdoer unless the person concerned has a reasonable cause to fear that otherwise death or grievous hurt might ensue in which case that person would have full measure of right to private defence including killing”

Herein reasonable apprehension of death or grevious hurt upon body of B ceased as soon as A lowered the pistol after tempers were pacified at C behest. But  B acyions dilute his stand that he shot in order to protect himself.

Sec 300 Excp 4

Even if the plea of exception 4 of Sec 300 is taken by B, the same shall hold no good. The exception states:  

 “Exception 4.—Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.”

The above exception is applied on th premise that even if it is assumed that fight between A nd B was a sudden fight in heat of passion as both wanted to go home early for Holi. The exception requires that offender must not have taken undue advantage, which certainly is not the case here, B had fired upon A when he had lowered the gun which is a action emerging from violent intention aimed at ending the life of A. Moreover the heat of passion had cooled down as A had lowered his gun.

In State of MP v Shiv Shankar [Sept 2014 SC] An altercation took place between accused and complainant party.   The accused went inside his house, brought the licensed gun of his brother and fired a shot hitting the deceased on the stomach. Apart from the accused, acquitted co-accused and others had Kattas and 12 bore single barrel guns. The acquitted co- accused also fired in the air. The deceased succumbed to his injuries. Here SC convicted the accused for murder

“It is clear from the case of the prosecution mentioned above that the accused first slapped the complainant which was followed by verbal abuses and thereafter the accused brought the licensed gun and fired at the deceased, who died. It was, thus, a voluntary and intentional act of the accused which caused the death. Intention is a matter of inference and when death is as a result of intentional firing, intention to cause death is patent unless the case falls under any of the exceptions. We are unable to hold that the case falls under Exception 4 of Section 300, IPC as submitted by learned counsel for the respondent. Exception 4 is attracted only when there is a fight or quarrel which requires mutual provocation and blows by both sides in which the offender does not take undue advantage. In the present case, there is no giving of any blow by the complainant side. The complainant side did not have any weapon. The accused went to his house and brought a gun. There is neither sudden fight nor a case where the accused has not taken undue advantage.

In any case, the pleas of  accused do not withstand the scrutiny of self-defence principles. And HC was not justified in acquitting B on this ground. The conviction under Sec 302 must be restored, though the punishment could be lowered.

In Darshan Singh’s case following principles were evolved regulating the use of self-defence plea under IPC:

“(i) Self-preservation is the basic human instinct and is duly recognized by the criminal jurisprudence of all civilized countries. All free, democratic and civilized countries recognize the right of private defence within certain reasonable limits.

(ii) The right of private defence is available only to one   who    is   suddenly    confronted   with    the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self defence into operation. In other words, it is not necessary that there should be an actual commission of the offence in order to give rise to the right of private defence. It is enough if the accused apprehended that such an offence is contemplated and it is likely to be committed if the right of private defence is not exercised.

(iv) The right of private defence commences as soon as a reasonable apprehension arises and it is co- terminus     with       the   duration     of     such   apprehension.

 (v) It is unrealistic to expect a person under assault to modulate his defence step by step with any arithmetical exactitude.

(vi) In private defence the force used by the accused ought not to be wholly disproportionate or much greater than necessary for protection of the person or property.

(vii) It is well settled that even if the accused does not plead self-defence, it is open to consider such a plea if the same arises from the material on record.

(viii) The accused need not prove the existence of the right of private defence beyond reasonable doubt.

(ix) The Indian Penal Code confers the right of private defence only when that unlawful or wrongful act is an offence.

(x) A person who is in imminent and reasonable danger of losing his life or limb may in exercise of self defence inflict any harm even extending to death on his assailant either when the assault is attempted or directly threatened.”

Rash Driving Cases: When Punishment under Sec 304 II applied?

•       When a person through his rash or negligent act commits death of another than he is made punishable under Sec 304A
•       And when such act results in either endangering human life or causing hurt or causing grievous hurt than he could be made punishable under cluster of sec 336 to sec 338
•       In category of rash and negligent acts, is also covered driving or riding any vehicle on public way in a manner which is rash and negligent to the extent it endangers human life. Such driving or riding is punishable under Sec 279 IPC.

 In any case, IPC provides ample provisions to nail the accused, but much rests on investigative agencies and able prosecution. High and mighty may still go scot free if they press the right buttons.

It was in Alister Anthony Pareira v St of Maharashtra [(2012) 2 SCC 648] that a well-crafted issued was urged before the apex court: whether a person can be made liable under Sec 304 II and Sec 338 IPC together and is not such a framing mutually destructive ?

Before the charge is further expounded let’s have a brief of factual situation:

Appellant herein Mr Alister Pareira is accused of driving in rash and negligent manner and with knowledge that people were asleep on footpath rammed his car over a pavement. His act resulted in death of seven persons and injuries to eight persons. It is an established fact that he was fully familiar with the road on which he was driving and that he as under influence of alcohol.

 Issue:

It has been stressed by the defence that “the appellant was charged for the above offences for committing a single act i.e., rash or negligent for causing injuries to eight persons and at the same time committed with knowledge resulting in death of seven persons which is irreconcilable and moreover that has caused grave prejudice to the appellant resulting in failure of justice.”

For sake of convenience it is to be recalled that for punishment under Sec 304 II  accused must have committed culpable homicide not amounting to murder and the act done by him was done with the knowledge that it is likely to cause death or to cause such bodily injury as is likely to cause death. Thus the act should fall under Sec 299 clause 4. Though the knowledge attribute is also covered mentioned in Sec 300 Fourthly but facts of this case do not attract other requirements of Sec 300 Fourthly

Suffice it say following must be shown to bring any given set of facts under Sec 299 Clause 4:

•  Death must be caused;
• Act done was with knowledge that he (accused) is likely by such act to cause death

On the contrary Sec 338 has no knowledge element. It states:

“338. Causing grievous hurt by act endangering life or personal safety of others.—Whoever causes grievous hurt to any person by doing any act so rashly or negligently as to endanger human life, or the personal safety of others, shall be punished with impris­onment of either description for a term which may extend to two years, or with fine which may extend to one thousand rupees, or with both.”

Similarly Sec 279 also omits any specific mention of knowledge element:

“279. Rash driving or riding on a public way.—Whoever drives any vehicle, or rides, on any public way in a manner so rash or negligent as to endanger human life, or to be likely to cause hurt or injury to any other person, shall be punished with im­prisonment of either description for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.”

So also Sec 304A: “Causing death by negligence.—Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.”

 The above three sections [including Sec 336, 337] do not require proof of either intention or knowledge in committing rash and negligent act and thus at lower footing from Sec 299 which requires either intention or knowledge to be proved with actus of accused. In similar terms following would be requirements for culpability in under any of above three sections:

“ (1) death of human being; (2) the accused caused the death and (3) the death was caused by the doing of a rash or negligent act, though it did not amount to culpable homicide of either description.”

The absence of knowledge element in sec 338 and its must presence for conviction under Sec 299 makes it appear to be self-destructive charges, if pleaded for one set of facts. However in Alistar Pareira the SC has held otherwise. The Court states:

“In a case where negligence or rashness is the cause of death and nothing more, Section 304A may be attracted but where the rash or negligent act is preceded with the knowledge that such act is likely to cause death, Section 304 Part II IPC may be attracted and if such a rash and negligent act is preceded by real intention on the part of the wrong doer to cause death, offence may be punishable under Section 302 IPC.”

“41. A person, responsible for a reckless or rash or negligent act that causes death which he had knowledge as a reasonable man that such act was dangerous enough to lead to some untoward thing and the death was likely to be caused, may be attributed with the knowledge of the consequence and may be fastened with culpability of homicide not amounting to murder and punishable under Section 304 Part II IPC.

42. There is no incongruity, if simultaneous with the offence under Section 304 Part II, a person who has done an act so rashly or negligently endangering human life or the personal safety of the others and causes grievous hurt to any person is tried for the offence under Section 338 IPC.”

In  State Tr.P.S.Lodhi Colony,New Delhi vs Sanjeev Nanda [(2012) 8 SCC 450]where the accused had through his high speed vehicle killed six persons. The accident was of nature that 2 persons who had come under the car were dragged upto a certain distance.

Hereto the State charged the accused with Culpable Homicide punishable under Sec 304 II. This was held valid charge considering the facts and circumstances of the case. ‘Knowledge’ was attributed to accused as he was driving in inebriated condition after excessive drinking and without any driving license. The car was at high speed and after hitting the persons he left them unattended, with bodies scattered all around. Such inaction would rightly indicate sufficient knowledge of accused about the crime he had done and was therefore convicted under 304 II and not 304 A. the Court reiterated Alistar Pareira: “ The principle mentioned by this court in Alister Anthony Pareira (supra) indicates that the person must be presumed to have had the knowledge that, his act of driving the vehicle without a licence in a high speed after consuming liquor beyond the permissible limit, is likely or sufficient in the ordinary course of nature to cause death of the pedestrians on the road.”

The opinion of SC in Alistar Pareira has been basis of conviction in many cases where death was caused by rash and negligent driving by accused. It has been the jurisprudence of court that such cases of reckless actions must be dealt sternly. This is to send out a strong message that life and limb of pavement sleepers or pedestrians is as precious as that of any other person. Cases of drunken driving and ramming on-road people shake the societal conscience and accused in such cases must discharge the onus that they lacked knowledge or intention while doing such acts. By claiming benefit of inebriated condition one cannot absolve himself of such heart-rending crimes.

Res Judicata: Some Aspects

Under Sec 11 of Civil Procedure Code, 1908 the principle of Res Judicata is embodied. Herein the court is barred from trying suit or issue which has been previously decided.  For invoking this rule following requirements must be proved:

a) the matter should be directly and substantially in issue in former suit;

b) between same parties or their LR’s litigating under same title;

c) in a court competent to try such subsequent suit;

d) and has been heard and finally decided by such court

Res Judicata as is known is legislative avatar of following common law maxims:

“(1) no man should be vexed  twice for the same cause, (2) it is in the interest of State that there should be an end to a litigation and (3) a judicial decision once it has  attained finality must be accepted as correct between the parties” [Satyendra Kumar & Ors v Raj Nath Dubey & Ors (May 2016 Supreme Court) ]

First basic requirement in a plea of Res Judicata is that there should be identical Cause of Action in both suits (matter should be directly and substantially in issue in former suit). The congruency  between issues is determined on myriad platforms of which Cause of Action is one, the others will be viz, same titles, same parties, same subject-matter.

Cause has been explained in Kunjan Nair v Narayanan Nair [(2004) 3 SCC 277]: "cause  of  action  means  the circumstances forming the infraction of the right or the immediate occasion for the action. In the wider sense, it means the necessary conditions for  the maintenance of  the suit,  including not only the infraction of the right, but the infraction  coupled with the right itself. Compendiously the expression  means  every  fact  which  would  be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the court.  Every fact which is necessary to be proved,  as  distinguished  from every  piece  of evidence which is necessary to prove each fact, comprises in 'cause of action'."

It is also mandatory to show that there was 'hearing' and court has rendered a 'decision' on such issues. Even a ex-parte hearing could be termed as sufficient for purposes of Sec 11 if due notices were served on defendants and sufficient opportunity for afforded to them to present their case, despite of which they fail to present their case.

·         Whether determination on pure issues of law could operate as Res Judicata in respect of some other properties which were not subject to ‘former proceedings’?

No, In Mathura Prasad v Dossibai JeeJeebhoy [AIR 1971 SC 2355] it was stated:

“10. It is true that in determining the application of the rule of res judicata the Court is not concerned with the correctness  or  otherwise  of  the  earlier  judgment.  The matter in issue, if it is one purely of fact, decided in the earlier  proceeding  by  a  competent  Court  must  in  a subsequent  litigation  between  the  same  parties  be regarded as  finally  decided  and cannot  be  reopened.  A mixed question of law and fact determined in the earlier proceeding  between  the  same  parties  may  not,  for  the same reason,  be questioned in a subsequent  proceeding between the same parties. But, where the decision is on a question of law i.e. the interpretation of a statute, it will be res judicata in a subsequent proceeding between the same parties  where  the  cause of  action is  the  same,  for  the expression “the matter in issue” in Section 11 of the Code of Civil  Procedure means the right  litigated between the parties  i.e.  the  facts  on  which  the  right  is  claimed  or denied and the law applicable to the determination of that issue. Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of  the  Court  sanctioning  something  which is  illegal,  by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.”

Thus even ‘question of law’ can be of two types:

(a) Which is related to ‘interpretation of statute’ to any particular fact situation – decision on this is not subject to change;

(b) Which is related to any ‘formal defect’ (ex. error in exercise of jurisdiction etc)  - decision on this is not subject to Res Judicata and can be challenged   

·         In Saroja  v Chinnusamy (Dead) by Lrs & anr [(2007) 8 SCC 329] following issues emerged:

(1)  whether  an ex  parte  decree  could  attract  res  judicata; and

 (2)  whether the appellant could be held bound by the  judgment  in the earlier suit  when he was not a party to the same  although she had acquired title from the person who as a party had  suffered the ex parte decree.

Both the issues were decided against the appellant of that case by holding that an ex parte decree was as good  as a decree passed after contest and such ex parte decree, unless set  aside  on the  ground  of  fraud  or  collusion  will  not  only  bind  the  original  parties to the former suit  but also other parties who claim  under any of them and seek to litigate under the same title.

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·         Test for determining whether subsequent suit is barred by RJ

In Jaswant Singh v Custodian of evacuee property [(1985) 3 SCC 648] a simple test was laid to determine whether subsequent suit is barred by RJ or not: “…In order that a defence of  res judicata may succeed it  is necessary to show that  not  only the cause of action was the same but also that the plaintiff  had an opportunity of  getting the relief  which  he  is  now seeking in  the  former proceedings.  The test  is whether  the claim in the  subsequent  suit  or  proceedings  is  in  fact founded upon the same cause of  action which was  the  foundation  of  the  former  suit  or proceedings….”

·         In a court competent to try such subsequent suit v Exp VIII to Sec 11

Besides other requirements Sec 11 requires that party pleading Res Judicata must show that former court was competent to try subsequent suit. Ex Suit X was decided by Court 1. In Suit Y  before Court 2 a party claims RJ upon similarity of issues with Suit X. Now as per this requirement it is necessary to prove that Court 1 is competent to conduct trial of Suit Y.

However Exp VIII limits this requirement: If Court 1 above is court of limited jurisdiction and competent to decide issues under Suit X than such decision shall operate as RJ notwithstanding that Court 1 is a limited jurisdiction court having no competency to try Suit Y. 

[Court of limited jurisdiction: Such court which is restricted to preside over any particular subject-matter (as Special court under Protection of women under Domestic violence Act) or which is restricted by pecuniary limits]

Thus if Suit X above was between H & M regarding loan of Rs 20,000 and was decided by Court 1 which has pecuniary limit of Rs 1,00,000. than merely this limitation would not restrict application of RJ upon similar issues in Suit Y for loan of Rs 1 crore between H & M which is before Court 2 having pecuniary limit of Rs 1 crore

This is in furtherance of spirit of Res Judicata maxims (2) & (3) laid in  Satyendra Kumar & Ors v Raj Nath Dubey & Ors provided above

Negligence: Damages under Strict Liability [Vohra RajakBhai & Ors v St of Gujarat & Ors (2016)]

Appellants herein had berry trees planted on their land. From a nearby dam constructed and maintained by respondents 60,000 cusecs of water was released which destroyed the plantation. Respondents blame the heavy downpour which resulted in water levels of dam reaching alarming levels due to which water had to be released. Else the rising water level would have breached the dam.  It is the case of appellants that respondents had been negligent and had they controlled the alarming level of water keeping in mind the coming monsoon season no such sudden action was needed.

Thus appellants are claiming damages for loss of crop on account of sheer negligent attitude of respondents. Whereas respondents have raised the defence of ‘act of god’ pleading that heavy rains forced them for sudden heavy release of water.

Evidences before Trial Court and Court of appeal (HC) with their decision

Not much evidences have been lead by parties before the trial court and serious deficiencies have been pointed by SC :

• Respondents have stored more than retention capacity of water in dam during month of June 1997 knowing fully well that in coming monsoon season water level would increase
•  TC appointed court commissioners confirmed the loss of appellants through their reports adduced with photographs. They have noted that due to the alleged floods 1500 boar trees were uprooted and submerged in water

Both TC and HC decreed in favor of respondents specifically labeling the loss due to ‘act of god’

“The trial court also found that land of the appellants is situated adjacent to the river bank and, therefore, due to heavy rain, the river could have overflown resulting in entering of  the water into the fields of the appellants in any case. It further held that action of the respondents in releasing the water from dam was a prudent action keeping in view that minimum damage is caused to the public at large because of the heavy rains, which is dependent upon the nature.”

Pointing towards the lack of evidence by appellants in support of their case (as no exact determination of loss, price of produce allegedly destroyed) their prayer was dismissed by trial court.

HC ruled that “it  was a force majeure  circumstance  and,  therefore,  the  appellants  were  not entitled to any compensation.”

Issues before SC

• Whether the act of releasing the water from the dam would amount to negligence on the part of the respondents or it was inevitable due to heavy rains and is to be treated as an 'act of God'?
• If the answer to the aforesaid question is in the affirmative, whether the appellants would be entitled to some compensation even in the absence of proof of actual/exact damage caused?

The Case of Strict Liability: Rylands  v Fletcher (1868)

In Rylands v Fletcher the principle is well known:

a) If a person on his land brings and keeps something which is likely to do mischief upon escape, such thing must be kept in peril;

b) And if he does not do so resulting in escape of that thing;

c) The person would be prima facie answerable for damage which is the natural consequence of its escape

Blackburn J further expands his principle by stating: “The person whose grass or corn is eaten down by the escaping cattle of his neighbour, or  whose mine is flooded by  the water  from his neighbour's reservoir, or whose cellar is invaded by the  filth  of  his  neighbour's  privy,  or  whose habitation  is  made  unhealthy  by  the  fumes  and noisome vapours of  his neighbour's alkali  work is damnified  without  any  fault  of  his  own;  and  it seems but reasonable and just that the neighbor who has brought  something on his  own property which was not naturally there, harmless to other so long as it is confined to his own property, but which he  knows  to  be  mischievous  if  it  gets  on  his neighbour's, should be obliged to make good the damage which ensues if  he does not  succeed in confining it to his own property.  But for his act in bringing it  there no mischief  could have accrued, and it  seems but  just  that  he should  at  his  peril keep it  there so that  no mischief  may accrue,  or answer  for  the  natural  and  anticipated consequences.”

Later on in Rickards v Lothian [(1913) AC 263] a clarification was made to above principle that there should be “non-natural use of land” to attract liability under strict liability. Thus “It is not every use to which land is put that brings into play this principle.  It must be some special use bringing  with  it  increased  danger  to  others,  and must not merely be the ordinary use of the land or such a use as is proper for the general  benefit  of the community.”

In Read v J Lyons and Co [(1947) AC 156 (HL)] a further addition was made that there should be ‘escape of thing’ from land of defendant. If no such escape of thing is shown by plaintiff he cannot secure relief under this rule.

Various improvements were made by Indian courts when strict liability principle was applied in national circumstances. Some diluted the above rule of ‘non-natural use of land’ being crucial ingredient to strict liability. One was St of Punjab v Modern Cultivators (AIR 1965 SC 17) where damages were sought for overflowing of water from breach of canal. It was held that construction of canal was natural use of land but this finding did not constrict the court in awarding damages.

In Jay Laxmi Salt Works (Pvt) Ltd v St of Gujarat [(1994) 4 SCC 1] “ damage was caused by overflow of water from a reclamation bundh constructed by the State of Gujarat for reclamation of vast area of land from saltish water of sea.  In this case, this Court held the Government responsible as the said act was treated as violation of public duty and negligence which lay in defective  planning  and  construction  of  the  bundh.   On  that premise,  damages  were  awarded.”

The Court also remarked: “In  a  welfare society construction of dam or bundh for the sake of community is essential function and use of land or accumulation of water for the benefit  of society cannot  be  non-natural  user.  But  that  cannot absolve the State from its duty of being responsible to its citizens for such violations as are actionable and  result  in  damage,  loss  or  injury.  What  is fundamental is injury and not the manner in which it has been caused.”

ACT OF GOD

The phrase is well-known exception to principle of strict liability. In words of SC “  Generally, those  acts  which  are occasioned by  the elementary  forces  of nature, unconnected with the agency of man or other cause will come under the category of acts of God……………………What  is  important  here  is  that  it  is  not necessary that it should be unique or that it should happen for the. first  time.It is enough that it is extraordinary and such as could not reasonably be anticipated.”

In S. Vedantacharya  &  Anr.  v.  Highways  Department  of  South Arcot & Ors. [(1987) 3 SCC 400] the situation was “State  Government  erected  a  reservoir  adjoining the plaintiff's land in order to provide drinking water facilities  to  a  village  in  the  State.   The  State acquired a part of the plaintiff's land for the purpose of constructing a channel for carrying the overflow of water from the reservoir to a Nalla which was at a distance of about 1500 feet from the waste-weir of  the reservoir.   This  channel  was however  not constructed except to the extent of 250 feet on the side of  the  Nalla.   Due to very heavy rainfall  the water  from  the  reservoir  overflowed  into  the waste-weir and thereafter flowed over the plaintiff's land, causing considerable damage to the land and the crops standing thereon.”

It was held: “It  was held  that  the  fact  that  the  danger  materialized subsequently  by an act  of  God was not  a matter which absolved the State  from its  liability  for  the earlier negligence in that no proper channel for the flow or overflow of water from the waster-weir was constructed by it in time; that the act of the State in constructing the reservoir for the supply of drinking water to its citizens at best could be considered a welfare  act  and  not  an  act  in  its  capacity  as  a sovereign; and that, therefore, the State was liable in negligence for the loss caused to the plaintiff.”

Thus what would lead to decide the present factual matrix was whether damage to appellant was due to some inevitable accident or unavoidable accident which could not have been prevented by ordinary care and caution

The respondents have specifically refuted the appellants argument that they failed to take pre monsoon season measures to keep check upon level of water. But this is not supported by any evidence. There is nothing to show that “  that the water  in the dam was kept at reasonable and proper level to take care of normal rains; the rains in the said monsoon season were more than the ordinary rains which could not  be foreseen; and that the public purpose was served in taking the decision to release the water which prevented larger catastrophe.” 

In age of advance meteorological equipment and satellite data where volume of rainfall could be roughly predicted, it was not prudent for respondents to further  unsubstantiated arguments that release of water was forced due to sudden heavy rains. Hence they were held responsible for negligent conduct and loss due to appellants

Rights of Female Hindu under succession act

Hindu succession Act (HSA) had often been criticized for neglecting to recognize women’s rights to ancestral property of joint hindu family. To remove this age-old discrimination legislature amended sec 6 of HAS (wef 9 Sept 2005) to enable hindu females claim their rights in their ancestral property which until now were exclusively enjoyed by males.

This amendment has been cause of resentment in various affected quarters of hindu society and has led to various litigations, two of which are discussed:

(a) Sujata Sharma v  Manu Sharma (Del HC Dec 22, 2015 )

(b)  Prakash v Phulvati (SC decided on Oct 15, 2015)

Sec 6 of HSA was amended in 2005 to permit to grant daughter of coparcenor same rights as coparcenor as held by male[1]. The daughter now (after 2005) possesses same right and liabilities as are enjoyed by son. However need has been felt to further clarify the nature and extent of these rights as coparcenory is an all-round concept which not only includes legal notions but also social notions. For ex whether a woman could act as Karta of Hindu Undivided Family? Kartaship not only includes right to manage property on behalf of HUF but also covers religious liabilities and consequently would 2005 amendment allow women to perform religious rites as well. Such questions need authoritative adjudication to be settled.

Before we move into opinions rendered above let's 1st dissect Sec 6 after 2005 amendment so far as it relates to women as coparcenors:

Sec 6(1) - # In a joint hindu family governed by Mitakshara law;

# daughter of coparcenor shall - [women claiming right should be a daughter of coparcenor i.e., coparcenory has to flow to her];

# by birth become a coparcenor in her own right in the same manner as the son-  [her right to coparcenory is absolute and vested in her];

She will have same rights and subject to same liabilities of the coparcenory property as that of son- [She can be Karta but only in aspects related to coparcenor property and not for other socio-religious purposes]

Sec 6(2): She will be entitled to testamentary disposition (she can dispose property by will, sale etc) of the property owned under coparcenary

Sec 6(3): On death of coparcenor his (now includes her) interest in joint hindu family property shall devolve to successors by notional partition - daughter will have same share as son

It is through Sec 6(1) that coparacenory rights in joint hindu family property are granted to women by birth and subsequent to 2005 amendment a woman can claim partition of joint family property if the same as not be done uptil 20 Dec 2004 or if the partition was not written or registered. Further even unwritten/unregistered transfer of such property can be challenged if woman is entitled to rights in joint family property.

• In Mrs Sujata Sharma v Sh Manu Gupta the issue before the Delhi HC was whether plaintiff lady, being the 1st born amongst coparcenors of joint family property would by virtue of her birth, be entitled to be its Karta?

Court affirmed the position that if a male can be Karta as 1st born eldest of the family, so can be a female, even though it was argued that Sec 6 nowhere recognizes female’s right to become Karta. It was underlined that 2005 amendment simply brings a female member at par with male member with regard to rights in coparacenory property. Upon analaysing various sources the court reached to a progressive interpretation that a hindu female cannot be debarred from being a Karta and especially after she has been recognized as coparcenor by legislature through 2005 amendment

"Mulla: By virtue of the new provision, a daughter of a coparcener in a joint Hindu family governed by the Mitakshara law now becomes a coparcener in her own right and thus enjoys rights equal to those hitherto enjoyed by a son of a coparcener. The implications of this fundamental change are wide. Since a daughter now stands on an equal footing with a son of a coparcener, she is now invested with all the rights, including the right to seek partition of the coparcenary property. Where under the old law, since a female could not act as karta of the joint family, as a result of the new provision, she could also become karta of the joint Hindu family"

Further the Law Commission’s 174th report argues: “when women are equal in all respects of modern day life, there is no reason why they should be deprived of the right and privilege of managing HUF as their Karta.”

• In Prakash & Ors v Phulavati & Ors a different issue on Sec 6 emerged before the Supreme Court. Herein the issue was as to whether  2005 amendment act to HSA would operate with retrospective effect?

The respondent lady herein was claiming equal part in ancestral property on par with her brothers as provided by 2005 amendment. However the appellant brothers plead that since their father died in 1988 before Sec 6 was amended, and hence she is not entitled to equal share as amendment cannot apply retrospectively.

It was with this issue that parties approached the HC which ruled that 2005 amendment would apply to present facts as proceedings pertaining to ancestral property were sub judice[1]      

The appellants contend:

a)   Father of respondent died in 1988 whereafter notional partition was done and through this operation of law appellants secured vested rights in property. Thus father of respondent not being coparcenor on date of commencement of 2005 amendment she cannot agitate equivalent share in property

b)  Respondent cannot claim herself as ‘daughter of coparcenor’ which is the requirement under Sec 6 (1) after amendment

c) Since amendment was not applicable at all to her she is not entitled to share equal to that of appellants

SC states: “In the present case, there is neither any express provision for giving retrospective effect to the amended provision nor necessary intendment to that effect.  Requirement of partition being registered can have no application to statutory notional partition on opening of succession as per unamended provision, having regard to nature of such partition which is by operation of law. ……On this finding, the view of the High Court cannot be sustained.”

Since the partition was done under law existing at that point of time, the effect would be that Sec 6(5) shall now come into force which prohibits any tinkering of partition[2] done before 20 Dec 2004.

It further says: “Contention of the respondents that the Amendment should  be read as  retrospective  being a piece of  social legislation cannot  be accepted.  Even a social  legislation cannot be given retrospective effect unless so provided for or so intended by the legislature.  In the present case, the legislature has expressly made the Amendment applicable on and from its commencement and only if death of the coparcener in question is after the Amendment.  Thus, no other interpretation is possible in view of express language. of  the  statute.   The  proviso  keeping  dispositions  or alienations  or  partitions  prior  to  20th  December,  2004 unaffected  can also  not  lead  to  the  inference  that  the daughter  could  be  a  coparcener  prior  to  the commencement of the Act.  The proviso only means that the transactions  not  covered thereby will  not  affect  the extent  of  coparcenary  property  which may be available when  the  main  provision  is  applicable.   Similarly, Explanation  has  to  be  read  harmoniously  with  the substantive provision of Section 6(5) by being limited to a transaction  of  partition  effected  after  20th December, 2004.  Notional partition, by its very nature, is not covered either under proviso or under sub-section 5 or under the Explanation.”

Consequently it was held: “rights  under  the amendment  are  applicable  to  living  daughters  of  living coparceners  as  on  9th September,  2005  irrespective  of when such daughters are born.   Disposition or alienation including partitions  which may have taken place before 20th  December, 2004 as per law applicable prior to the said date will  remain unaffected.   Any transaction of partition effected thereafter will be governed by the Explanation.”

THUS

The above two cases though technically different, move in opposite directions as far as rights of female in joint family property is concerned. This is also because of the reason that legislature while amending sec 6 carefully inserted 20th dec 2004 as a date which would act as shield for already executed partitions or testamentary dispositions, so that any situation of chaos is prevented as females taking legal recourses to open up all existing arrangements. Nonetheless, sec 6 has served its social objective and ensured equality for hindu females in testamentary matters  

[1] The Statement and Objects to HAS amendment act 2005 states: “Section 6 of the Act deals with devolution of interest of a male Hindu in coparcenary property and recognises the rule of devolution by survivorship among the members of the coparcener. The retention of the Mitakshara coparcenary property without including the females in it means that the females cannot inherit in ancestral property as their male counterparts do. The law by excluding the daughter from participating in the coparcenary ownership not only contributes to her discrimination on the ground of gender but also has led to oppression and negation of her fundamental right of equality guaranteed by the Constitution having regard to the need to render social justice to women, the States of Andhra Pradesh Tamil Nadu, Karnataka and Maharashtra have made necessary changes in the law giving equal right to daughters in Hindi Mitakshara coparcenary property.  The Kerala Legislature has enacted the Kerala Joint Hindu Family System (Abolition) Act, 1976.

3. It is proposed to remove the discrimination as contained in section 6 of the Hindu Succession act, 1956 by giving equal rights to daughters in the Hindu Mitakashara coparcenary property as the sons have.  Section 23 of the Act disentitles a female heir to ask for partition in respect of a dwelling house wholly occupied by a joint family until the male heirs choose to divide their respective shares therein.  It is also proposed to omit the said section so as to remove the disability on female heirs contained in that section.”

[2] “The law in this regard is too well settled in terms of the judgment of the Supreme Court in the case of  G. Sekar  Vs.  Geetha and others reported in (2009) 6 SCC 99.  Any development of  law  inevitably  applies  to  a  pending proceeding and in fact it is not even to be taken as  a retrospective  applicability  of  the  law but only the law as it stands on the day being made applicable.
[3] Their would be burden of proof on party which opts to challenge such prior existing partition.