OBLI­GA­TION OF THE AD­VO­CATES TO PLACE AC­CU­RATE LAW BE­FORE THE COURT: CODE OF HON­OUR HEENA NIKHIL DHARIA V. KOKILABEN KIRTIKUMAR NAYAK [SCC ON­LINE ON 9.12.2016]

Libertatem Magazine - - From The Courtroom -

FACTS

In this case the dis­pute is re­lated to the es­tate of Kir­tikku­mar Nayak. The per­son died in the year 2005.

Kir­tikku­mar’s daugh­ter filed a suit claim­ing that she is en­ti­tled to a share in her fa­ther’s es­tate. She further pleaded for ad­min­is­tra­tion and par­ti­tion of the prop­erty. Mean­while in the year 2006 a Tes­ta­men­tary Pe­ti­tion was filed by the wi­dow of Kir­tikku­mar Nayak. The pe­ti­tion con­tended that Kirtikumar was sur­vived only by his wife and three sons. This pe­ti­tion was pro­duced by the de­fen­dant in this par­tic­u­lar case once a claim for the prop­erty has been asked by Kir­tikku­mar’s daugh­ter.

IS­SUES BE­FORE THE COURT

 Whether kir­tikku­mar’s daugh­ter is li­able to get a part in the es­tate.

 The de­fen­dant con­tended that since Ar­ti­cle 113 of the Sched­ule to Lim­i­ta­tion Act, 1963 pro­vides for a pe­riod of three years from date when “the right to sue ac­crues”, the suit was barred by lim­i­ta­tion.

 The plain­tiff claimed that the suit was cov­ered by Ar­ti­cle 65 (for pos­ses­sion of im­mov­able prop­erty based on ti­tle) or Sec­tion 110 (a suit by a per­son ex­cluded from joint fam­ily prop­erty), both of which stip­u­late a twelve-year pe­riod lim­i­ta­tion. (Code of hon­our ob­li­gates ad­vo­cates to place ac­cu­rate law be­fore the Court; SCC On­line, Dec 20,2016)

HELD

The Court held that it is the duty of the Court to check whether a judg­ment cited, has been con­firmed or set aside in ap­peal. The Court con­tended that two ma­jor de­ci­sions cited by the coun­sel of the de­fen­dant has been set aside by con­sent in ap­peal yet the coun­sel main­tained that they are bind­ing prece­dent. The Court how­ever did not com­ment on the lim­i­ta­tion is­sue. Ac­cord­ing to the Court the is­sue of lim­i­ta­tion of sub­stan­tially sim­i­lar is­sue was pend­ing be­fore a Full Bench of Bom­bay High Court.

LEARN­ING OUTCOME

The Ad­vo­cates be­ing the torch­bearer of law and the spokesper­son of the court to com­mon peo­ple it is manda­tory that they dili­gently solve cases and look into past records and pro­vide proofs which are le­gal and true. The Court makes it clear that t is the duty of the ad­vo­cates to cross check sta­tus of judg­ment and place ac­cu­rate law be­fore the Court. (Code of honor ob­li­gates ad­vo­cates to place ac­cu­rate law be­fore the Court; SCC On­line, Dec 20, 2016)

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