“Ownership” denotes the relation between a person and an object forming the subject matter of his ownership. It consists in a complex of rights, all of which are rights in rem, being good against all the world and not merely against specific persons” (Salmon on Jurisprudence, 12th Ed.). There are various rights or incidents of ownership all of which need not necessarily be present in every case. They may include a right to possess, use and enjoy the thing owned, and a right to consume, destroy or alienate it. Such a right may be indeterminate in duration and residuary in character. A person has a right to possess the thing which he owns, even when he is not in possession, but only retains a reversionary interest, i.e., a right to repossess the thing on the termination of a certain period or on the happening of a certain event. Suneel Galgotia v. State of U.P., 2016 (92) ACC 40.
Monthly Archives: March 2016
Section 7(3) of the Arbitration and Conciliation Act provides that the arbitration agreement shall be in writing, which is a mandatory requirement. Section 7(4) states that the arbitration agreement shall be in writing, if it is a document signed by all the parties. But a perusal of clauses (b) and (c) of Section 7(4) would show that a written document which may not be signed by the parties even then it can be arbitration agreement. Section 7(4)(b) provides that an arbitration agreement can be culled out from an exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement. Govind Rubber Limited v. Louis Dreyfus Commodities Asia Private Limited, (2015) 13 SCC 477.
In Rukmanbai Gupta v. Collector, (1980) 4 SCC 556, Hon’ble Supreme Court held that Arbitration agreement is not required to be in any particular form. What is required to be ascertained is whether the parties have agreed that if the dispute arises between them in respect of the subject matter of contract, such dispute shall be referred to arbitration, then such an arrangement would spell out an arbitration agreement.
Section 7(4) of the Arbitration and Conciliation Act defines an agreement to be an arbitration agreement is in writing if it contained (a) a document signed by the parties; (b) an exchange of letters, telex, telegrams or other means of telecommunication [including communication through electronic means] which provide a record of the agreement; or (c) an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.
Thus, it can be safely concluded that an arbitration agreement need not be signed by the parties if the record of the agreement is provided by exchange of letters, telex, telegrams or other means of telecommunication. Sub-section 4(c) of Section 7 of the Act provides that there can be an exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other. Due to development of Science and Technology, the statutory recognition of agreement in circumstances mentioned in clauses (b) and (c) of Section 7(4) of the Act, can be easily understood in the present day of E-commerce and internet purchases, tele purchases, ticket booking on internet where agreements are entered in standard forms of contract and terms and conditions are agreed upon. In such agreement, if the identity of the parties is established and there is a record of agreement and if there is an Arbitration clause showing that parties are ad-idem, then the signature is not a mandatory requirement under clauses (b) and (c) of sub-section (4) of the Act or under sub-section (5) of Section 7 of the Act. M/s Blue Star Ltd. v. M/s Z-Square Shopping Mall Pvt. Ltd., 2018 (129) ALR 836.
The Hon’ble Apex Court in Union of India v. D.N. Revri and Company, (1976) 4 SCC 147 held that a commercial document between the parties must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. It was further held:
“It must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. It would not be right while interpreting a contract, entered into between two parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents. The meaning of such a contract must be gathered by adopting a common sense approach and it must not be allowed to be thwarted by a narrow, pedantic and legalistic interpretation.” Govind Rubber Limited v. Louis Drefus Commodities Asia Private Limited, (2015) 13 SCC 477.
The right of protection of service during the maternity period is essential to ensure equality at the workplace for a woman employee. The right of maternity protection is envisaged under various International Human Rights and Labour Conventions and it is statutorily implemented in India through the Act of 1961. There is a growing increase in the women’s participation at the workplace, especially in the urban areas. There is also an increase in the awareness to provide conducive working environment for women. Strict implementation of the Act, which ensures health and stress free environment for a working woman cannot be emphasized enough. Arbitrary termination of service during the maternity period, not only affects the concerned woman employee, but creates a sense of despair and disillusionment amongst the working women in general. Zee News Ltd. v. Sonika Tiwari, 2016 (148) FLR 436.
Explaining the doctrine of severability contained in Section 57 of the Indian Contract Act, 1872 in B.O.I. Finance Ltd. v. Custodian and Others, (1997) 10 SCC 488, a three Judge Bench of the Court has held that question of severance arises only in the case of a composite agreement consisting of reciprocal promises. In Shin Satellite Public Company Ltd. v. Jain Studios Ltd.m (2006) 2 SCC 628, the court has observed that the proper test for deciding validity or otherwise of an order or agreement is “substantial severability” and not “textual divisibility”. It was further held by the Court that it is the duty of the court to sever and separate trivial and technical parts by retaining the main or substantial part and by giving effect to the latter if it is legal, lawful and otherwise enforceable. Elektron Lighting Systems Pvt. Ltd. v. Shah Investments Financial Developments and Consultants Pvt. Ltd., 2016 (1) AWC 671.
To put binding effect and the essentials of a family settlement in a concretized form, the matter may be educed into the form of following propositions:
(1) The family settlement must be bona fide one so as to resolve family disputes and rival claims by a fair and equitable division or allotment of properties between the various members of the family.
(2) The said settlement must be voluntary and should not be induced by fraud, coercion or undue influence.
(3) The family arrangement may be oral even in which case no registration is necessary.
(4) It is well settled that registration would be necessary only if the terms of the family arrangements are reduced into writing. Here also, a distinction should be made between a document containing the terms and recitals of a family arrangement made under the document and a mere memorandum prepared after the family arrangement had already been made either for the purpose of the record or for information of the Court for making necessary mutation. In such a case the memorandum itself does not create or extinguish any rights in immovable properties and therefore does not fall within the mischief of Section 17(2) of the Registration Act and is, therefore, not compulsorily registrable.
(5) The members who may be parties to the family arrangement must have some antecedent title, claim or interest, even a possible claim in the property which is acknowledged by the parties to the settlement. Even if one of the parties to the settlement has not title but under the arrangement the other party relinquishes all its claims or titles in favour of such a person and acknowledges him to be the sole owner, then the antecedent title must be assumed and the family arrangement will be upheld and the courts will find no difficulty in giving assent to the same.
(6) Even if bona fide dispute, present or possible, which may not involve legal claims are settled by a bona fide family arrangement which is fair and equitable is final and binding on the parties to the settlement. Smt. Rama Devi v. Mahendra Pal, 2016 (114) ALR 852.