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We are Hindu brothers already partitioned. Is it possible to re-open partition after 3 years

The following observations made by Supreme court in RATNAM CHETTIAR case AIR 1976 SC 1 Gives you guideliness regarding the topic

(1) A partition effected between the members of an Hindu Undivided Family by their
own volition and with their consent cannot be reopened unless it is shown that it was obtained by fraud, coercion, misrepresentation or undue influence. In such a case. the Court should require strict proof of facts, because, an act inter vivos cannot be lightly set aside.

(2) When the partition is effected between the members of the Hindu Undivided Family which consists of minor coparceners it is binding on the minors also, if it is done in good faith and in a bona fide manner keeping into account the interests of the minors.

(3) But if the partition is proved to be unjust and unfair and is detrimental to the interests of the minors the partition can be reopened after any length of time. In such a case, it is the duty of the Court to protect and safeguard the interests of the minors and the onus of proof that the partition was just and fair is on
the party supporting the partition.

(4) Where there is a partition of immovable and movable properties, but the two transactions are distinct and separable, or have taken place at different times, if it is found that only one of these transactions is unjust and unfair, it is open to the court to maintain the transaction which is just and fair and to reopen
the partition that is unjust and unfair.

Whether for every acts of public servant even if it is illegal sanction to prosecute necessary?

SANCTION IS NOT NECESSARY IN ALL CASES. THE BELOW QUOTED CASE LAWS WILL GUIDE YOU FURTHER



STATE OF BIHAR ETC. ETC. Vs. RESPONDENT: P.P. SHARMA, IAS AND ANR. : REPORTED IN AIR 1991 SC 1260

The public servant can only be said to act or purported to act in the discharge of his official duty if his act or omission is such as to lie within the scope of his official duty. It is not every offence committed by a public servant that requires sanction for prosecution, nor even every act by him while he actually engaged under colour of his official duty that receives protection from prosecution.[46B] The offending act must be integrally connected with the discharge of duty and should not be fanciful or pretended.

R. Balakrishna Pillai v. State ofKerala, REPORTED IN AIR 1996 SC 901 : (1996) 1 SCC 478 (483).

It is not every offence committed by a public servant while engaged in the performance of his official duty, which is entitled to the protection. Only an act constituting an offence directly or reasonably connected with his official duty will require sanction for prosecution. It is the quality of the act that is important

Hardev Singh v. State of Punjab, REPORTED IN 1995 Cr LJ 2964 (P&H).

Where accused public servant indulges in firing, the act even remotely cannot be said to be connected with official duty, sanction under S. 197 is not necessary.

Bhagwan Prasad Srivastava v. N.P. Mishra, REPORTED IN AIR 1970 SC 1661 : 1970 Cr LJ 1401, 1403, 1404.

It is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. A line has to be drawn between the narrow inner circle of strict official duties and acts outside the scope of official duties.

The case was not covered by s, 197 Cr. P.C.. The object and purpose underlying section 197 Cr. P.C. is to afford protection to public servants against frivolous, vexatious or false prosecution for offences alleged- to have been committed by them while acting or- purporting to act in the discharge of their official duty. The larger interest of efficiency of State administration demands that public servants should be free to perform their official duty’fearlessly and undeterred by apprehension of their ,possible prosecution at the instance. of private parties to whom annoyance ,or injury may have been caused by their legitimate acts done in the discharge of their official duty. This section is designed to facilitate effective and unhampered performance of their official duty by public servants by providing for scrutiny into the allegations of commission of offence by them by their superior authorities and prior sanction ’for the- prosecution as a condition precedent to the cognizance of the cases against them, by the courts. It is neither to be too narrowly construed nor too widely. Too narrow and pedantic construction may render it otiose for it is no part of an official duty, and never can be-to commit an offence. It is not the "duty" which requires examination so much as the "act" because the official act can be performed both in the discharge of the official duty as well as in dereliction of it. One must also guard against too wide a construction because in our constitutional set up the idea of legal equality or of universal subjection of all citizens to one law administered by the ordinary courts has been pushed to its utmost limits by enshrining equality before the law in our fundamental principles. The question whether a particular act is done ’by a public servant in the discharge of his official duty is substantially one of fact to be determined on the circumstances of each case. [320 D--H; 321 G] In the present case the alleged offence consists of the use of defamatory and abusive words and of getting the complainant-respondent forcibly turned out of the operation theatre by the Cook. There was nothing on the record to show that this was a part of the official duty of the appellant as Civil Surgeon or that it was so directly connected with the performance of his official duty that without so acting he could not have properly discharged, it. [321 G-H]

Pukhraj v. State of Rajasthan, REPORTED IN AIR 1973 SC 2591 : 1973 Cr LJ 1795, 1796; N.K. Ogle v. Sanwaldas, REPORTED IN AIR 1999 SC 1437 : 1999 Cr LJ 2105; Mohd. Hazi Raja v. State ofBihar, REPORTED IN AIR 1998 SC 1945 : 1998 Cr LJ 2826.

What is necessary is that the offence must be in respect of an act done or purported to be done in the discharge of an official duty. It does not apply to acts done purely in a private capacity by a public servant.

Mohd. Pasha, (1956) Hyd 191; Baij Nath, REPORTED IN AIR 1966 SC 220; MA". Ogle v. Sanwaldas, REPORTED IN AIR 1999 SC 1437: 1999 Cr LJ2105.

The sanction is necessary if acts complained of a public servant are so integrally connected with the duties attached to the office as to be inseparable from them. But if there is no necessary connection between them and the performance of the duties, then no sanction is necessary.

P. Arulswami v. State of Madras, REPORTED IN AIR 1967 SC 776: 1967 Cr LJ 665.

Sanction is not necessary to prosecute a public servant, if the act of which he is complained, is entirely unconnected with his official duty.

Bakhshish Singh v. state of Punjab, REPORTED IN AIR 1967 SC 752 : 1967 Cr LJ 656. 661.

Where the act could not possibly be held to have been done in the discharge of official duties as a public servant no sanction is necessary.

K.K. Anand v/s Joginder Singh, 1990 REPORTED IN CrLJ 1007 (HP).

A public servant who does not purport to act in discharge of his official duty but merely uses his official position to do an illegal act cannot claim the benefit of this section. To be protected under this section, the act constituting the offence should be so connected with the official duty or any act which is inseparable from such duty.

K. Venkataramana Reddy v. A. Radha, REPORTED IN 1991 Cr LJ 498, 505 (AP). .,

The question whether the acts of beating, abusing and dragging were warranted in the discharge of the police officials duties or not and whether they have any nexus with their official duties can be decided only after the evidence is let in and not earlier to that.

Bakhshish Singh Brar v. Gurmej Kaur, REPORTED IN AIR 1988 SC 257 : 1988 Cr LJ 419 (SC).

The trial Court may decide the necessity of sanction after gathering materials and evidence.

Supreme Court in Harihar Prasad v. State of Bihar, REPORTED IN (1972) 3 SCC 89 : (1972 Cri LJ 707), in which the Supreme Court held that it was no part of the duty of a public servant, while discharging his official duties, to enter into a criminal conspiracy or to indulge in criminal misconduct and therefore want of sanction under Section 197, Cr. P.C. was not a bar for prosecution of a public servant for the offence of criminal conspiracy under Section 120B.

Supreme Court in State of Bihar v. P.P. Sharma, REPORTED IN AIR 1991 SC 1260: (1991 Cri LJ 1438), and Shambhoo Nath Misra v. State of U.P., REPORTED IN (1997) 5 SCC 326 : (1997 Cri LJ 2491), in which it was held that no sanction was required under Section 197 , Cr. P.C. for prosecuting a public servant for offences such as misappropriation, falsification of accounts, criminal conspiracy, etc. as they were not integrally connected with the official duties of the public servant.








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