Protect Property With Only ‘As Much As Necessary’ Force
Legally Speaking - Property and Housing Laws | By Solicitor Gajanan Khergamker
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I understand that one can use force to protect one’s own property. However, nowhere is it mentioned about the quantum of force that can be used to protect possession/property. Also, how does one judge the conduct of the person who used the force?
— Malkan Desai, Kandivali
By law, there is nothing fixed by statute to ascertain the quantum of force that can be used. But, as precedent bears testimony, the force could be to the extent of causing the death of the aggressor.
Nevertheless, the issue of force to be used is settled by law that the force used should not be more than what “is necessary”.
Also, whether the force used is in excess or not is a question of fact that will be determined by the facts and circumstances of each individual case. There cannot be a generalised solution to the issue of force.
Allowances are made by law for the person’s feelings at that point of time which may be incidental to the force needed to protect the property from the aggressor.
The law will take into consideration if he is faced with a real apprehension that the aggressor might cause death or grievous hurt or his property is faced with an element of danger. Such apprehensions inevitably create in his mind a sense of excitement and confusion.
It is understood that at the opportune moment, the one thought that would be foremost in his mind would be to ward off the imminent danger and save himself or his property. He would be most keen on doing anything possible in exercise of his right.
Therefore, while dealing with the issue of whether more force is used than was necessary or justified by the prevailing circumstances, it would be inappropriate to adopt tests of detached objectivity that’s natural in a court room.
For instance, when the issue is examined long after the incident has occurred. In a few judicial decisions, it has been observed the means a threatened person adopts or the force he used “should not be weighed in golden scales”.
Also, whether the force used was more than necessary would be determined on the facts and circumstances of each and every individual case.
Nominee Only Acts On Behalf Of Owner
One lady bought a flat along with his son and applied for membership of the Society in joint names. The nomination form submitted to the Society shows her son's name as the Nominee also. Can a Co-owner (second name in the share certificate) be a nominee also? In the event of death of the first owner, what is to be done by the co-owner (son), to become the next single owner (100 per cent owner)? The lady has other children also.
— Thomas Abraham, Palghar
Yes, a co-owner/joint owner can be a nominee too. As for your second query, under the Maharashtra Cooperative Society Act, on the death of a member, the society can transfer the interest to a nominee or an heir or a legal representative.
In a significant High Court ruling, it was held that such a nominee does not become the only owner.
The nominee represents the legal heirs of the deceased member while dealing with the cooperative housing society and is only empowered to act on behalf of the real owners.
This, however, is a temporary arrangement between the death of the member and till the court decides the legal heir who is entitled to the property or estate.
Sale Of Property By Ostensible Owner
What is sale of property by Ostensible Owner? Please explain.
— Ravi Singh, Belapur
A transfer by an ostensible owner cannot be avoided on the ground that the transferor was not authorised thereof, according to Section 41 of the Transfer of Property Act.
This, however, is subject to the condition the transferee should take reasonable care to ascertain the transferor had the power to make the transfer and to act in good faith before a benefit thereof is claimed by him.This provision is based on the law of estoppel - if a man has represented the transferor consents to an act which has been done and that he would not offer any opposition thereto, although the same could not have been lawfully done without his consent.
By that if he induces others to do that from which they would have abstained normally, he cannot question the legality of the act he so sanctioned to the prejudice of those who have so given faith to his works or to the fair inference to be drawn from the conduct.
For one to claim benefits of Section 41 of the Act, it must be proved that the transferor is the ostensible owner; he is so by the consent, express or implied, of the real owner; the transfer is for consideration and the transferee has acted in good faith taking reasonable care to ascertain that the transferor had power to transfer.
The purchaser must ascertain from the office of the Registrar that the transferor had the power to transfer the property.
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