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PREVAILING LAW RELATING TO THE TRANSFER AND TRANSMISSION OF SHARES ON THE DEATH OF A MEMBER  SHORTCOMINGS

November 14, 2022

 This  blog comes in wake of a judgment I came across of the Bombay High Court in the matter of  Karan Vishnu Khandelwal Omdham Cooperative Housing Society Ltd. Vs Deputy Registrar -K-West In this matter facts of the case were as under: Mannalal Surajmal Khandelwal (deceased) was owner of a flat no.1 and by virtue thereof, was entitled to share certificate. The deceased during his lifetime registered a nomination in the name of Petitioner- his grandson. The nomination was acknowledged by the managing committee of the society in it’s meeting held on and made an entry in the nomination register. Mr. Mannalal Khandelwal died intestate on 20thJanuary, 2011, leaving behind, Rajendra Mannalal Khandelwal (Son- Respondent No.2); Krishnakumar Mannalal Khandelwal (Son); and Petitioner- son of Vishnu Mannalal Khandelwal (predeceased son of deceased). That upon demise of Mannalal Surajmal Khandelwal, Respondent No.2 – Rajendra M. Khandelwal, made an application to the society, inter alia, seeking transfer of membership and the share certificate in his name. Along with the application, he submitted a No Objection cum Declaration’ and indemnity bond made and executed by Krishnakumar Mannalal Khandelwal. This way, the Respondent No.2 claimed 2/3rdshare and interest in the flat and sought transfer of proportionate interest in flat and claimed membership. The application was rejected by the society on 8thAugust, 2018. Whereafter, the Respondent No.2 preferred an appeal under section 23 (2) of the Maharashtra Societies Act (‘MCS Act’ for short), being Appeal No. 09 of 2019 before the Deputy Registrar. The Petitioner sought intervention in the said appeal. The Intervention was allowed. The Deputy Registrar vide order dated 8thFebruary, 2021 allowed the appeal and held that since the Respondent No.2 has acquired 2/3rdright in flat No.1, to that extent, his interest be noted in the society record. In consequence, the Deputy Registrar acknowledged 2/3rdundivided right of the Respondent No.2 and 1/3rdundivided right of the Petitioner in flat No.1 and directed to make entries in the society records. In revision, the Divisional Joint Registrar upheld the order of the Deputy Registrar and dismissed the revision application of the Petitioner. Feeling aggrieved by that order, the Petitioner has filed this petition. MATTER BEFORE BOMBAY HIGH COURT WHEN ERROR OF LAW OCCURRED The matter when came up before the Bombay High Court, the court observed that Registrar passed the impugned order in haste may be at the behest of respondent No.2. Therefore, the impugned order not only suffers from gross irregularity being passed in breach of principles of natural justice but also against the law, and therefore, deserves to be quashed and set aside. While passing the Judgement Bombay High Court relied upon Indrani Wahi Vs. Registrar of Co-operative Societies (Civil Appeal 4930/2006), held that the cooperative society was bound by nomination made by the deceased and it was bound to transfer the shares to the nominee While passing the Judgment Hon’ble Court it relied upon the provisions of Section 154-B(2) of Maharashtra Cooperative Societies (Amendment) Act, 2019. In any event, by. It reads under:     “154-13. On the death of a Member of a society, the society shall transfer share, right, title and interest in […]

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“SECULARISM” IN THE PREAMBLE OF THE INDIAN CONSTITUTION – A CONTROVERSIAL ZONE

May 7, 2022

The Preamble was used by Supreme Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India having solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens’ justice, social, economic, and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately, they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Is the Preamble part of our Constitution? This was decided in the matter of Berubari In Re: The Berubari Union And  vs Unknown on 14 March 1960 Equivalent citations: AIR 1960 SC 845, 1960 3 SCR 250 There is no doubt that the declaration made by the people of India in the exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”. In S.R.Bommai vs Union of India: It was held in this landmark judgment that : Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith, or belief of a person is immaterial. To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Note: This feature of secularism was rejected by the Constituent Assembly ( Drafting of Constitution Committee) on 6th December 1948. Bommai ( Supra)  is said to be a landmark judgment of the Supreme Court on Article 356, it is true that Secularism is guaranteed as a fundamental right, but the word “Secularism” was never there in the Preamble of the Constitution of India 1949 and the insertion thereof was refused and negatived by the Constituent Assembly. Below is the link to the […]

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WHEN THE LAW-AND-ORDER SITUATION IS SCRAMBLED CAN ASSEMBLY BE DISSOLVED? CAN THE PRESIDENT ORDER FOR A FRESH ELECTION? LANDMARK CASES  

May 2, 2022

Part XVIII of the constitution deals with such a situation that arises in the state of India. Let’s first read those provisions: Duration of State Legislatures.—(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of [five years] shall operate as a dissolution of the Assembly: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate. (2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law. Article 174(2) (2) The Governor may from time to time (a) Prorogue the House or either House; (b) dissolve the Legislative Assembly Article 355: Duty of the Union to protect States against external aggression and internal disturbance.—It shall be the duty of the Union to protect every State against external aggression and internal disturbance and to ensure that the Government of every State is carried on in accordance with the provisions of this Constitution. Dictum: Naga Peoples Movement vs Union of India Reference in this context may be made to Article 355 of the Constitution whereunder a duty has been imposed on the Union to protect every State against external aggression and internal disturbance and to ensure that the government of every State is carried on in accordance with the provisions of the Constitution. In view of the said provision, the Union Government is under an obligation to take steps to deal with a situation of internal disturbance in a State. There can be a situation arising out of internal disturbance which may justify the issuance of a proclamation under Article 356 of the Constitution enabling the President to assume to himself all or any of the functions of the Government of the State. That would depend on the gravity of the situation arising on account of such internal disturbance and on the President being satisfied that a situation has arisen where the Government of the State cannot be carried on in accordance with provisions of the Constitution. Provisions in case of failure of constitutional machinery in State: (1) If the President, on receipt of report from the Governor of the State or otherwise, is satisfied that a situation has arisen in which the government of the State cannot be carried on in accordance with the provisions of this Constitution, the President may be Proclamation (a) assume to himself all or any of the functions of the Government of the State and all or any of the powers vested in or exercisable by the Governor or anybody or authority in the State other than the Legislature of the State; (b) declare that […]

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ANCIENT INDIA VEDIC USAGE OF  CANNABIS  AND TODAY’S NARCOTIC SUBSTANCE

November 7, 2021

  When I wrote a negative comment about Aryan Khan on Facebook, I was taken a back by a question why Sadhus drug themselves. This was asked none other than a Hindu may be pseudo-secular or the one who made Khans rule over this country though being Khan by a dialogue “ I am Khan and I am not a terrorist”. Our generation is not knowledgeable may be literate.  Literacy means which generates a lot of wealth in terms of money.  I then did research and I recalled having read Sam Ved in Gujarati. Som Ras and Som Paan is an integral part of Aryans. Bhang is offered to Lord Shiv as it heals his pain of consuming poisonous substances during Samudra Manthan. In general, devotees offer even milk to relive his sufferings which Lord Shiv consumed to save the universe. Indian history and Hindu Aryan culture have the tradition to use cannabis, bhang, and other plants as medicine.  The mention is found in Atharva Ved.  There is also mention of Soma Paan by Indra Dev Sukta 56 – 5348.  Consumption of Soma Ras made from herbs on the holy mountain of Himalaya gives the different abilities and sparkling personality.  It was used as medicine for different diseases and during surgery in ancient India.  The mention is in Sushrut Samhita. There is also mention of Madya Paan in Chandipath in Adhyay 3 mantra 34-35 where the supreme powered goddess consumes Madhypan before elimination of devil Mahishasur. Cannabis and its derivatives (marijuana, hashish/charas, and bhang) were legally sold in India until 1985, and their recreational use was commonplace.  Consumption of cannabis was not seen as socially deviant behavior and was viewed as being similar to the consumption of alcohol.  Ganja and Charas were considered by upper-class Indians as the poor man’s intoxicant, although the rich consumed bhang during Holi. The United States began to campaign for a worldwide law against all drugs, following the adoption of the Single Convention on Narcotic Drugs in 1961.  Article 49 of the Convention required Parties to completely abolish, over a maximum period of 25 years from the coming into force of the Convention, all quasi-medical use of opium, opium smoking, coca leaf chewing, and non-medical cannabis use.  All production and manufacture of these drugs were also to be abolished within the same time periods.  Only Parties for which such uses were “traditional” could take advantage of the delayed implementation; for others, prohibition was immediate.  As the maximum time ended in 1989, these practices are today fully prohibited, and the drugs may be used only for domestically regulated medical and scientific purposes. However, India opposed the move and withstood American pressure to make cannabis illegal for nearly 25 years.  American pressure increased in the 1980s, and in 1985, the Rajiv Gandhi government succumbed and enacted the NDPS Act, banning all narcotic drugs in India. WHAT IS THE DIFFERENCE BETWEEN ANCIENT INDIAN CANNABIS AND TODAY’S NARCOTIC SUBSTANCE? In ancient India, Som Paan was enjoyed by supreme lords and kings as they had to fight devils and evil forces, which we discussed above.  There was no “Drug abuse” […]

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