Advocate Srinivasa Kudva

Questions Answered by Advocate Srinivasa Kudva

Q: Poor quality of construction by builder what action can i take ?

Hi, Recently i have moved in to an apartment. The builder had promised to complete all pending works and claimed to have used quality materials for construction. Offlate its observed the builder used inferior material towards the project. This has resulted in major safety concerns. The building has developed cracks all over and from safety perspective it's a big question Please advise can i complaint against builder for poor construction ?, if a legal case can be filed against the builder? Thanks.

Advocate Srinivasa Kudva answered
Hi,Recently, at Power to Consumer we have seen a rise in the number of complainants approaching us to file a case against a builder. Many of them have similar grievances such as delay in possession of their property, mute responses from the developer, unfinished projects due to litigation issues, absconding builders, poor quality construction so on and so forth. We already covered the topic of compensation due to delay in handing over projects. We decided to write this post to make the general consumer aware of pitfalls in dealing with a builder, and how can they take the support of legal process to fight them back.As per a landmark decision passed in 1993 in the case of Lucknow Development Authority vs. M.K.Gupta, the Honourable Supreme Court of India passed a judgement stating that “all builders/contractor(s)/all concerned authorities of any State engaged in Housing Construction activity in any manner are amenable to Consumer Protection Act, 1986 for any act or omission relating to housing activity such as: “Delay in delivery of possession, non-completion of construction within the stipulated time, defective and faulty construction and more…” The judgement states the fact that a builder who constructs a house or hires the services of a contractor to develop a property is engaged in the act of providing service to his customer, and for which he is getting monetarily compensated. This makes him a service provider and hence liable under the clauses of Consumer Protection Act, 1986.A list of situations under which a property buyer can file a case: The International Consumer Rights Protection Council has listed down the following grounds in which a property buyer can drag an incompetent property developer to the Consumer Court: Non-execution of relevant sale agreement despite having received a substantial advance amount Non-issuance of copies of all relevant documents viz.; development agreement, power of attorney, sanctioned plan (by concerned Regional Authorities), specification of construction materials/design as per sanctioned plan and any other relevant documents Charged higher than the agreed amount No issuance of proper receipt(s) against the paid amount Poor quality construction Delivering of a house not complying to agreed specifications No free parking space within the premises Did not form a co-operative housing society and handed over to members Non-provision of water storage tank Non-provision of proper ventilation and light Delayed possession beyond the stipulated time limit Not obtaining completion certificate from the concerned registered (by the authorities) architect Non-issuance of Occupancy Certificate at the time of delivery of respective flats/house to its occupants Non-declaration of expenses against which the developer collected money And many more…Any project falling short of above listed causes can be referred to Power to Consumer prior to taking delivery of the property from the concerned builders so that we can take up the matter as a pre-litigation issue.How to file a complaint against a builder in the Consumer Court? With builders coming under the clause of being a service provider, the process of filing a consumer court complaint against them is the same as with other service providers. To file a complaint, you need to adhere to the following steps: Send a well drafted Legal Notice to the builder stating your reasons of discontent, Await for a response for the stipulated time from the other party, On no-response, prepare a petition stating facts and evidences with the help of expert legal advice, Approach the Consumer Court and file your petition against the builder.But one big exception applies to filing the case in the event of delay in possession. "There is no time limit to move the court against builders". As per a judgement passed by the National Commission in the case of Jayantabhai Ranka and Arunaben Kapadia vs Ravi Developers, the Commission pointed out that the cause of action on the builder continues till the allotment of the site or full refund of money on refusal to allot. This means, no matter how much the delay, the builder is liable to properly honour his service agreement. The other important point that this particular case also highlighted is that ‘each property developer is liable to execute an agreement for sale’. And failure to do so can be a cause of action against the builder in the Consumer Court. If you have been cheated by a builder, or someone you know has been a victim of the misdeeds of a property developer, you can get in touch with our learned Consumer Rights Adviser for support. Power to Consumer is here to support consumers like you in resolving issues and disputes of any kind and nature. If you need any support regarding the complaint filing process or want to file a complaint against the builder, please get in touch with us immediately.

Q: Property distribution after father's death in india

My father passed away during 1974-75 and my mother is alive. I am the only son and I have two elder sisters both are married in the year 1978 and 1980 respectively. My father has not made any Will. Kindly let me know whether myself and mother are only the legal heirs for the property or my sisters can claim their share , whether my mother can make a Will giving share to my two sisters, after father death who is the owner of property in india ?

Advocate Srinivasa Kudva answered
Hi,We all know how property is inherited when someone takes the trouble to leave a will behind. However, what happens when there is no valid will? How does the property get distributed amongst the nearest kith and kin? This is information that almost everyone needs to understand, basically for two reasons. Firstly, so that you do not neglect the duty of making a will, and secondly, so that you understand your own interests, obviously!To make things simpler, let us take an example. X died, causing much grief, and left behind his mother, widow, a son and a daughter without a will. He also leaves behind some agricultural land, some money in the bank, a house and some equity shares in a Demat account. How will the property be distributed and what are the steps to take so that the property of the deceased in transferred to the rightful inheritors?In legal terms, the person who dies without leaving a will is called an ‘intestate’. In legal terms, the son, daughter, wife and mother are all called Class-I heirs and the money would be shared equally among them. Here the son and the daughter are assumed to be adults and not minors. If they are minors, then their amount of the property would be held by their mother until they are 18.Distribution of property after death of the intestate : Under Indian laws, the distribution of property is different for all religions. For instance, Hindus and Muslims have their own inheritance laws – which were unwritten in the beginning, but most of it has been codified in laws made by government of India – with a notable exception of Muslim laws.Inherited Property – Distribution procedure for HINDUs : If you are a Hindu, the property consisting of the intestate’s land and house, will be distributed equally among the four Class-I heirs – the daughter, son, wife and mother.Distribution procedure for Muslims : If you are a Muslim, the Muslim laws of inheritance require at least 2/3 of the deceased’s property to go by line of succession to his family and allow up to 1/3 to be settled by testamentary succession. But as there was no will here, the property bequeathed will go to the man’s heirs in absence of a will by him.Immediate concerns: Right after death, get the death certificates from the municipality, which will be shown when inheriting money from bank accounts, closing the deceased bank accounts, etc. Family members are required to register the births and deaths within the prescribed period of 21 (twenty one) days from the date of death to the registrar. The registrar is: In Rural areas, Registrar (rural) – Village accountant In Urban areas the following are the registrars In case of City corporations: Health officer. In case of City Municipal councils: Health officer/Health inspector. In case of Town municipal councils: Health inspector. In case of Notified areas/Project areas/Cantonment – Health inspector. As there is no will, the legal heirs will have to get a succession certificate for inheriting the property. You should file an application in the civil court of the district where the property is of the deceased or where he normally he lived in. A notice will then be given by the court to you – the legal heirs; and an ad will also be published in the newspaper. The court will then take a time of around 4-6 weeks, where the court will wait for objections to the inheritance, if any, from others. After that the court will pass a succession order certificate. The party concerned, i.e. you, will have to give judicial stamp paper of sufficient amount prescribed by the court fee structure to the court. The local law of the State in which the property is situated determines the stamp duty and court fees. The legal heirs will have to apply to the probate registry to deal with the estate. In this case you need to apply for a ‘grant of letters of administration’. An application needs to be filed in the court for the letter of administration for the property. ‘Letter of administration’ is a certificate granted by the competent court to an administrator. If the grant is given, you will be known as ‘administrators’ of the estate. The grant of administration is a legal document which confirms the administrator’s authority to deal with the deceased person’s assets. The legal heirs will have to make an application to the court within 90 days from the death of the deceased inheriting the house and land in the following manner: The agricultural land will be divided into four equal parts, each of the four members given an equal share. The house is normally inherited in the name of the four heirs as joint owners. If however the daughter wants to sell her portion of the house, the whole house may be sold and the amount of sale may be equally divided but only if the son/s wants the division. (Section 23 of Hindu Succession Act) If the deceased person owned property with another person or persons as ‘beneficial joint tenants’, the deceased person’s share automatically passes to the surviving joint owner(s).Demat SharesThe legal heirs should make an application to the depository participant of the deceased (DP), to transmit the shares to the legal heirs’ Demat account (i.e. your account). A DP is the person who opens the share account for people and does transactions on behalf of him. He is the intermediate between the depository and the investors (here the investor is the deceased). The DP (of the deceased) will demand a copy of death certificate duly notarised and the succession certificate (which you got from the court) which is also duly notarized by notary people who are advocates who authenticate the certificates with their seal) or an order of the court. A copy of probate or letter of administration is also required. Then you will get the Demat shares distributed equally among the four.If no Class – I heir is present then the property would have been distributed equally among those present in Class-II heirs.The Class-II heirs include: Father Son’s daughter’s son, Son’s daughter’s daughter, Brother, Sister Daughter’s son’s son Daughter’s son’s daughter, Daughter’s daughter’s son, Daughter’s daughter’s daughter Brother’s son, Sister’s son, Brother’s daughter, Sister’s daughter Father’s father; Father’s mother Father’s widow; Brother’s widow Father’s brother; Father’s sister Mother’s father ; Mother’s mother Mother’s father; Mother’s sister.

Q: In a live in relationship, bf promised to marry but now refusing

Hi, I'm 34 years old. I've been in a live-in relationship with my boyfriend for over 5 years. He promised to marry me once he settled down in his business. Now that he's settled, he messaged me a month ago saying he wants to break up and marry another girl from his religion for his parents' sake. I'm in a critical condition emotionally; I even left my job for him and lost my mother last year. I have no one to support me. Can I take legal action against him for breaking his promise to marry me? Please advise.

Advocate Srinivasa Kudva answered
Hi,Live in relationships are legal.No law can / will ever force two people to enter into a legal relationship (marriage) to live with another.There are no rules.You should know -1) Children born out of live-in relationships are eligible to be maintained by both the parents and can succeed in inheritance of property of the parents.2) Domestic Violence Act also includes live-in relationships.3) Indian courts also tend to look at long term live-in relationships more or less like marriages with application of maintenance laws. The court has held that there is a presumption of marriage between those who are in live-in relationship for a long time and this cannot be termed as 'walking-in and walking-out' relationship. One night stands and spending weekends have been excluded from the scope. SC says woman in live-in relationship to be considered wife unless proven otherwise :Marriage is a sacred or contractual relationship in India. Marriage, as its legal consequences, entitles both the persons to cohabit; the children born out of a legal wedlock have legitimacy as legal heir; the wife is entitled to maintenance during and after the dissolution of marriage. To avoid these obligations and to enjoy the benefit of living together, the concept of live-in relations has come into picture. Live in relationship provides for a life free from responsibility and commitment unlike as in a marriage.Live-in relationship defined : It is a living arrangement. It is “an arrangement of living under which the couples which are unmarried live together to conduct a long-going relationship similarly as in marriage". In this relationship an unmarried couple lives together under the same roof in a way it resembles a marriage, but without getting married legally. This form of relationship does not thrust the typical responsibilities of a married life on the individuals living together. The foundation of live in relationship is individual freedom.No specific law recognizes a live in relationships in India. No legislation is there to define the rights and obligations of the parties and the status of children born to such couples. A live–in relationship is not recognized by Hindu Marriage Act, 1955 or any other statute. In the absence of any law to define the status of live in relationships the Courts have taken the view that where a man and a woman live together as husband and wife for a long term, the law will presume that they were legally married unless proved contrary. The Protection of Women from Domestic Violence Act 2005 provides for the protection,maintenance and right of palimony to a live-in partner, if she complains.Judicial Pronouncements : The earliest case in which the Supreme Court of India recognized the live in relationship as a valid marriage was that of Badri Prasad vs. Deputy Director of Consolidation, in which the Court gave legal validity to the a 50 year live in relationship of a couple.In Payal Katara v. Superintendent Nari Niketan Kandri Vihar Agra and Others the Allahabad High Court ruled out that “a lady of about 21 years of age being a major, has right to go anywhere and that anyone –man and woman even without getting married can live together if they wish”.Again in the case of Patel and Others, the Supreme Court has held that live in relationship between two adults without marriage cannot be construed as an offence.InLata Singh v State of UP & Anr. the Apex Court held that live-in relationship was permissible only between unmarried major persons of heterogeneous sex. If a spouse is married, the man could be guilty of adultery punishable under section 497 of the IPC. Since the husband survives, Rangammal cannot invoke presumption of live-in. If so the children became illegitimate and disqualified to inherit u/s 16 of the Hindu Marriage Act, 1955. Therefore, live-in relationship could be ‘a dangerous thing’ between a wife and a non-husband as it could lead to an offense of adultery, but not to ‘marriage’.In the case of S. Khushboo vs. Kanniammal & Anr., the Supreme Court has held that living together is a right to life. The Court held that how can it be illegal if two adults live together cannot be illegal.But in Alok Kumar vs. State of Delhi, the Delhi High Court has held that live in relation is walk in and walk out relationship and no strings are attached to it. This kind of relationship does not create any legal bond between the partners. It further held that in case of live in relationships, the partners cannot complain of infidelity or immorality.The Supreme Court in the case of D. Velusamy v. D. Patchaiammal has held that, a relationship in the nature of marriage under the 2005 Act must also fulfill some basic criteria. Merely spending weekends together or a one night stand would not make it a domestic relationship. It also held that if a man has a ˜keep” whom he maintains financially and uses mainly for sexual purpose and/or as a servant it would not, in their opinion, be a relationship in the nature of marriage.Supreme Court's Conditions : The Supreme court in the D. Velusamy v. D. Patchaiammal case made it clear that if the man has a live-in arrangement with a woman only for sexual reasons, neither partner can claim benefits of a legal marriage. In order to be eligible for palimony, a relationship must comply with certain conditions.The conditions laid down are that the couple must hold themselves out to society as being akin to spouses; they must be of legal age to marry; they must be otherwise qualified to enter into a legal marriage, including being unmarried; they must have voluntarily cohabited for a significant period of time.Considering that the judgment would exclude many women in live-in relationships from the benefit of the Domestic Violence Act, 2005, the apex court said it is not for this court to legislate or amend the law. The parliament has used the expression relationship in the nature of marriage and not ˜live-in relationship”. The court cannot change the language of the statute.Right to Maintenance in Live-in Relationship : The need to include live in female partners for the right of maintenance under Section 125 of Criminal Procedure Code, 1973 wa supported by the judgment in Abhijit Bhikaseth Auti v. State Of Maharashtra and Others. The Malimath Committee and the Law Commission of India also suggested that if a woman has been in a live-in relationship for considerably long time, she ought to enjoy the legal status as given to wife. However, recently it was observed that a divorced wife is treated as a wife in the context of Section 125 of CrPC but the live in partners cannot get divorced, and hence cannot claim maintenance under Section 125 of CrPC.The Protection of Women from Domestic Violence Act, 2005 considers females who are not formally married, but are living with a male person in a relationship, which is in the nature of marriage, also akin to wife, though not equivalent to wife. Section 2(f) of the Act defines domestic relationship which means a relationship between two persons who live or have, at any point of time, lived together in a shared household, when they are related by consanguinity, marriage, or through a relationship in the nature of marriage, adoption or are family members living together as a joint family. Thus, the definition of domestic relationship includes not only the relationship of marriage but also a relationship `in the nature of marriage.In the case of Koppisetti Subbharao Subramaniam vs. State of Andhra Pradesh, the Supreme Court held that the nomenclature “dowry” has no magical charm. It refers to a demand of money in relation to a marital relationship. The Court rejected the contention of the defendant that since he was not married to the complainant, Section 498A did not apply to him in a step ahead in protecting the woman from harassment for dowry in a live in relationship.Recent SC Judgment : The Supreme Court, in Indra Sarma case delivered on 26th November 2013 says: “Live-in or marriage like relationship is neither a crime nor a sin though socially unacceptable in this country. Long-standing relationship as a concubine, though not a relationship in the nature of a marriage, of course, may at times, deserves protection because that woman might not be financially independent, but we are afraid that DV Act does not take care of such relationships which may perhaps call for an amendment of the definition of Section 2(f) of the DV Act, which is restrictive and Exhaustive.” The court as well asked Parliament to bring in proper amendments to the Protection of Women from Domestic Violence Act, or enact a suitable legislation so that women and children born out of live-in relationships are protected, though those types of relationship might not be a relationship in the nature of a marriage.The five kinds of live-in relationships the apex court identified in Indra Sarma case are as follows: The first one is a domestic relationship between an adult male and an adult female, both unmarried. This is the most uncomplicated sort of relationship. The second one is a domestic relationship between a married man and an adult unmarried woman, entered knowingly. This is a problematic grey area. This one can lead to a conviction under Indian Penal Code for the crime of adultery. The third one is a domestic relationship between an adult unmarried man and a married woman, entered knowingly. This is also a problematic grey area. The fourth one is a domestic relationship between an unmarried adult female and a married male, entered unknowingly. The fifth one is a domestic relationship between two gay or lesbian partners.The Court has clarified that the above are merely illustrative.A Landmark Judgment : In a landmark judgment on 13 April 2015 by the bench consisting of Justice MY Eqbal and Justice Amitava Roy, the Supreme Court ruled out that couples living in live-in-relationships will be presumed legally married.The apex court also said that in case the man dies, then his partner would inherit his property. Since 2010, the Supreme Court has ruled in favour of women declaring that women should get the rights as that of a wife, in case of live-in couples.Conclusion : The live in relationship may be immoral, but not illegal. The judiciary has accorded legality to the concept of live in relationship and has protected the rights of the parties and the children of live in couples which makes it unnecessary to formulate a law to clarify the concept so urgently. There is no law which makes a live in relationship illegal.

Q: Case status say disposed, ia status disposed meaning in court

my friend is convicted in murder case for 3.5 years his bail is rejected from HC can he file in supreme court and the case status is 'disposed' what does it mean when a judge disposed a case?

Advocate Srinivasa Kudva answered
Disposed is a generic legal term meaning the case or proceeding is completed. Disposition is used in reference to the way in which the case was resolved. Some examples of the disposition of a case are: conviction, acquittal, dismissal, etc., not to be confused with verdict, which is a finding of guilty or not guilty, etc.When criminal and infraction cases are considered "disposed" : This is the date on which measuring the age of a case ends. A criminal or infraction case is considered disposed only when a disposition has been entered for all charges in the case, and on the date when the last disposition is entered. A felony case in district court is considered disposed on the date the case is bound over to superior court (such as by a waiver or finding of probable cause, or by a superceding indictment) or finally disposed in district court (such as by finding of no probable cause, dismissal, or guilty plea). The disposition date is the actual date of the final disposition, not the date when the data are entered into the automated system (which can be later).When a civil case is "disposed" : This is the date on which measuring the age of a case ends.A civil case is considered disposed only when all issues in the case have been disposed, and on the actual date of dismissal or judgment on the last issue disposed. This is the actual date of the dismissal or order; it will often be earlier than the date on which the clerk physically enters the data into the automated system.

Q: Forced into marriage how to get out of it

I have been in love with this guy for a year now. We are both Hindus. When he told his family about us, they immediately began to look for a girl. He fought in every way but they fixed his marriage. He told the girl's family everything about us, but his parents told the girl's side that he was lying and there was no relationship. They then threatened him emotionally saying that they would kill themselves if he didn't agree. He was forced into the marriage. It's been four days since the marriage, but he still calls me and cries and suffers and wants to know how to get out of it. Please help us.

Advocate Srinivasa Kudva answered
Hi, You should contact the Women Cell of the Local Police of the city lodging a written complaint against her own parents for forcing her for the marriage for which she is not given her free consent without undue influence or force.The woman can even file for domestic violence under the PWDV Act against her parents, brothers, other relatives wherein the Magistrate can pass ad interim order restraining the respondents from forced marriage, even give directions to the SHO of local Police station for providing complete protection to the woman in distress and prevent her forced marriage.