Company law -subscribers of memorandum of association
Deepa Maheshwari
(Querist) 17 March 2012
This query is : Resolved
can minor become a witness at the time of subscription of shares....i.e. has he authority to sign as witness on subscription page at the time of incorporation of the Company?
Basavaraj
(Expert) 17 March 2012
every person is comeptent to contract who is of the age of majority according to the law to which he is subject and who is of sound mind, and is not disqualifed from contracting by any law to which he is subject .
For more information the Guaridans and Wards Act,1890.
Amirtham Kudumbah V/s Sarnam Kudumban AIR 1991 SC 1256
AIR 1931 ALL 189(FB)
A V Vishal
(Expert) 17 March 2012
The modern judicial system is based on evidence. The knowledge of how an event happened is arrived at by the court through witnesses. As BENTHAM said, "Witnesses are the eyes and ears of justice." The court gives its finding based on the evidence given by witnesses. It is important, therefore, to understand who can and cannot be a competent witness. Section 118 of Indian Evidence Act, 1872, contains the provisions for determining a competent witness.
Section 118. Who may testify? - All persons shall be competent to testify unless the Court considers that they are prevented from understanding the question put to them, or from giving rational answer to those questions, by tender years, extreme old age, disease, whether of body and mind, or any other cause of the same kind.
Explanation - A lunatic is not incompetent to testify, unless he is prevented by his lunacy from understanding the question put to him and giving rational answers to him.
As is evident from Section 118, in general, nobody is barred from being a witness as long as he is able to understand the questions that are put to him as well as is able to give rational replies to those questions. There may be several reasons because of which a person may not be able to comprehend the questions and/or is unable to reply coherently. This section does not attempt to define all such reasons but gives examples of such reasons such as young age (in case of a child), mental illness, or extreme old age. It is up to the court to determine whether a person is able to understand the questions or give rational answers. Thus, competency is a rule, while incompetency is an exception. Even a lunatic is considered a competent witness if his lunacy does not prevent him from understanding the questions and giving rational answers.
Child Witness
A young child, if he is able to understand the questions and is able to reply rationally, is a competent witness even if he is of a tender age. For example, in the case of Jai Singh vs State, 1973, Cr LJ, a seven year old girl who was the victim of attempted rape was produced as a witness and her testimony was held valid.
It has been held in several early cases that a child under the age of seven years can be a competent witness if, upon the strict examination of the court, the child is found to understand the nature and consequences of an oath. For example, in Queen vs Seva Bhogta, 1874, a ten year old girl, who was the only eye witness of a murder was made a witness. She appeared to be intelligent and was able to answer questions frankly and without any hesitation. However, she was not able to understand the meaning of oath. It was held that her unsworn evidence was admissible in the given circumstances. The same was observed in Rameshwar Kalyan Singh vs State of Rajasthan AIR 1952, where the accused was charged with the offence of rape of a girl of 8 years of age. It was held that ommission of oath only affects the credibility of the witness and not competency of the witness. The question of competency is determined by section 118, and the only ground that is given for incompetency is the inability to comprehend the questions or inability to give rational answers.
The supreme court however has emphasised the need for carefully evaulating the testimony of a child. Adequate corroboration of his testimony must be looked from other evidence.
Shonee Kapoor
(Expert) 17 March 2012
Better get a major to sign such document.
Regards,
Shonee Kapoor
harassed.by.498a@gmail.com
