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Article Published in the Express Magazine Dated
February 4, 2001
General Attorney : Rajiv K. Luthra
From the beginning of my tenure in my present
house, I have been living alone and have had only
this one servant who I have recently had to sack.
I have been in a long drawn legal battle with my
landlord. My servant has always appeared in all my
FIR's that were lodged by me against my landlord
as a key witness. I fear that he shall out of
spite now gang up with my landlord and this would
greatly damage my case. How can I prevent this
from happening?
Sangeeta Banerjee, Chandigarh
Well you cannot prevent your servant from ganging
up with your landlord and it is not uncommon for a
witness to turn hostile at any given stage of a
case. Section 154 of the Indian Evidence Act 1872,
has made a provision to deal with a situation like
this. If the court is convinced that a witness has
turned hostile it may use its discretion to allow
the prosecution to cross- examine such a person.
In this way the party whose witness has turned
hostile may be given the opportunity to put
question to that hostile witness such that may
have been put in cross-examination by the adverse
party, had the witness not turned hostile.
However, it may be pertinent to point out that it
is necessary for you to have some material to
satisfy the court that your witness is not
speaking the truth and needs to be cross-examined,
since there are no guidelines set out and such
permission is given by the court at its sole
discretion.
I own a commercial property in Mumbai, which is
currently on rent. My only grand child is getting
married and I wish to give her this property as
gift. However, since this is our only source of
livelihood, I wish to retain a certain percentage
of the rent until such time as my wife and I are
alive. Is it possible for me put a condition to
the effect that at least 40% of the rent is sent
regularly to us. Also please advise if I need to
register this gift deed.
Chander Kant Shah, Gujarat
You may give the commercial property to your grand
child as gift for her marriage imposing alongwith
the two conditions mentioned in your query.
However, it is important that when such a gift is
made, the assent of the donee (in your case, your
grand child) to those conditions, is sought. The
gift shall hold good only to the extent of what is
actually given and shall be void to the extent of
that 40 percent which wish to retain, subject to
your grand-daughter's consent. As regards a gift
it may be stated that it is valid if it is made
without consideration; and the donee has accepted
the same. The property in question should be an
existing one. A gift with a condition has been
dealt with in the Transfer of Property Act 1882.
Normally a condition to the effect where the donor
reserves the profit for life shall not be treated
as repugnant. In your case, you propose to
withhold a part of the profit from the commercial
property, which you propose to give as gift. The
gift would have failed only if the condition was
immoral or illegal since in that case the
condition would have been void. Under the
circumstance you may make the gift as desired.
As regards the second part of your question, a
gift of an immovable property must be effected by
a registered instrument signed by and on behalf of
the donor, and attested by at least two witnesses.
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