CPC_Reference

Reference

1. Section One Hundred and Thirteen [113] of the Civil Procedure Code dealt with reference. 
2. It empowers a subordinate court refers the case for the opinion of the High Court. 
3. The Subordinate Court refers the matters containing the questions of law to the High Court for the opinion on that issue.  
4. The High Court may pass any Order in respect of the said question of law, as it deems fit. This process is termed as a Reference. 
5. The aforesaid power can be exercised by the High Court - 
• On its own motion (Suo motu), or
• On an the application filed by any of the parties 
6. It may be noted that, a right of reference and right of appeal is completely different. 
7. The object of reference is to enable the subordinate Court to obtain the opinion of the High Court on question of law to avoid the further commission of error.
8. The Subordinate Court must have to satisfied the following three conditions in order to make a reference-
• There must be a pending Suit or appeal in which the degree is not subject to an appeal or a pending proceeding in the execution of such decree: 
• The question of law shall arise during the course of such suit or appeal or proceeding; and 
• The court which dealing with the suit or appeal must have a reasonable doubt on such question. 
9. Normally, in such type situation, the subordinate Court may stay proceeding before it. 
10. However, during the pendency of Reference, if the subordinate Court proceeds with the matter and passes a decree or order, in such circumstances no such decree or order can be executed until the receipt of a copy of the Judgement of the High Court. 

Family Law II_Doctrine of Pious Obligation

Doctrine of Pious Obligation

1. Under the Hindu Law, debt is considered to be the sin.
2. The ancient Doctrine of Pious Obligation was governed by the Smriti Law. 
3. Pious obligation is the moral liability of the sons, grandsons and great-grandsons to pay or discharge the debts of father/ grandfather/great grandfather. 
4. Extent of the liability of Son, Son’s Son and Son’s Son’s Son under the Hindu law – 
• Son was required to pay the debt of father with interest accrued thereon 
• The grandson was liable to pay only the principal amount 
• The great-grandson was required to pay only to the extent to the joint family property in his hand. 
5. The son and grandson were made personally liable to pay the debt but the great-grandson was not held personally liable. 
6. The debt should not be avyavaharika i.e. debt taken for an immoral or illegal purpose. 
7. When a debt is contrary to or against good moral it is called avyavaharika debt. E.g. – Debts due for gambling, Unpaid fines, unpaid tolls, debts due to lust, etc. 
8. The debt should not be time barred. The sons are not bound to pay time barred debt of their father. 
9. The debt must be antecedent. 
10. This doctrine is not recognized by under the Dayabhaga School.

Transfer of Property Act_Lis Pendens

Lis-Pendens

1. The provisions relating to Lis-Pendens has been enumerated under Section 52 of the Transfer of Property Act, 1882
2. Lis-Pendens means pending litigation. It means ‘during pendency of any suit regarding title of a property, any new interest in respect of that property should not be created. 
3. The doctrine of Lis Pendens is expressed in the well-known maxim; pendente lite nihil innovetur.
4. The doctrine of Lis-Pendenes effectively provides that during the pendency of a suit in which any right to immovable property in is question, the property cannot be transferred by any party to the suit. The aim of this doctrine is to protect the rights of other parties.
5. Lis Pendens is considered as a constructive notice of the pending lawsuit. 
6. Essentials of Lis-Pendenes – 
• A suit or proceeding relating to the immovable property must be pending in a Competent Court having the authority within such territorial jurisdiction as provided by the law 
• The immovable property cannot be transferred or dealt with by any party to the suit or proceeding to affect the rights of other party. 
• The suit or proceeding must not be of collusive nature. The term collusive means as a result of secret agreement for illegal purpose. In other words, the litigation must be bona fide litigation. 
• The suit or proceeding must be pending in the Indian Court. 
• The dispute must be in connection with the right or right arising from an immovable property. 
7. Effect of Lis-Pendenes -  When the suit or proceeding is pending in the competent court relating to immovable property and if such property is transferred, then such transfer will be treated as “void”. 
8. Exception - It is open to court to permit any party to the suit to transfer the property to on terms which it may think fit to impose