Essentials of an Agreement – To qualify as a mortgage

The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be broadly summarized. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58 (c) of the Transfer of Property Act, will clothe the agreement as a mortgage by conditional sale. The execution of a separate agreement for reconveyance, either contemporaneously or subsequently, shall militate against the agreement being mortgage by conditional sale. There must exist a debtor and creditor relationship. The valuation of the property, and the transactional value, alongwith the duration of time for reconveyance, are important considerations to decide the nature of the agreement. There will have to be a cumulative consideration of these factors, alongwith the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. Vishal Tukaram Kadam v. Vamanrao Sawalaram Bhosale, 2017 (5) AWC 4821.


Leave a comment

Filed under Civil Law, Mortgage by Conditional Sale

Matrimonial Dispute – When can a DNA Test be ordered

In the case of Bhabani Prasad Jena v. Convenor Secretary, Orissa State Commission for Women, (2010) 8 SCC 633, it was observed by the Hon’ble Apex Court that in a matter where paternity of a child is in issue before the Court, the use of DNA Test is an extremely delicate and sensitive aspect. It should not be directed by the court as a matter of course, or in a routine manner. Whenever such a request is made, the court has to consider diverse aspects including presumption under Section 112 of the Evidence Act; pros and cons of such order and the test of “eminent need”. Whether it is not possible for the Court to reach the truth without use of such test. Any order for DNA test can be given by the Court only if a strong prima facie case is made out for such a course. Satya Pal Yadav v. Smt. Sandhya Yadav, 2017 (123) ALR 860.

Leave a comment

Filed under DNA Test, Matrimonial Dispute

Trespass and Trespasser

A “trespass” is an unlawful interference with one’s person, property or rights. With reference to property, it is a wrongful invasion of another’s possession. In Words and Phrases, Permanent Edition, (West Publishing Company), pp. 108, 109 and 115, in general, a “trespasser” is described, inter alia as follows:
“A ‘trespasser’ is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise (Wimmer’s Estate, In re, 182 P2d 119 at 121 : 111 Utah 444.)”
A ‘trespasser’ is one entering or remaining on land in another’s possession without a privilege to do so created by the possessor’s consent, express or implies, or by law. (Keesecker v. G.M. Mckelvey Co., 42 NE 2d 223 at 226,227 : 68 Ohio App. 525.)
A ‘trespass’ is a transgression or wrongful act, and in its most extensive signification includes every description of wrong, and a trespasser is one who does an unlawful act, or a lawful act in an unlawful manner, to the injury of the person or property of another. (Carter v. Haynes, Tex, 269 SW 216 at 220).
In Black’s Law Dictionary (6th Edition), 1990, p. 1504, the term “trespasser” is explained as follows:
“Trespasser.—One who has committed trespass. One who intentionally and without consent or privilege enters another’s property. One who enters upon property of another without any right, lawful authority, or express or implied invitation. Permission or license, not in performance of any duties to owner, but merely for his own purpose, pleasure or convenience.”
In Halsbury’s Laws of England. Vol. 45 (Fourth Edition), pp. 631-32, the following statement is made under the title “What constitutes Trespass to Land”:
“1384. Unlawful entry.—Every unlawful entry by one person on land in the possession of another is a trespass for which an action lies, even though no actual damage is done. A person trespasses upon land if he wrongfully sets foot on it, rides or drives over it or takes possession of it, or expels the person in possession, or pulls down or destroys anything permanently fixed to it, or wrongfully takes minerals from it, or places or fixes anything on it or in it, or if he erects or suffers to continue on his own land anything which invades the airspace of another, or if he discharges water upon another’s land, or sends filth or any injurious substance which has been collected by him on his own onto another’s land.” Ajit Singh v. Union of India, 2017 (4) AWC 4139.

Leave a comment

Filed under Trespass

Accusations and Character Assassination – Constitute Mental Cruelty

By a catena of decisions of the Hon’ble Apex Court, it is settled that making unfounded indecent defamatory allegations against the spouse or his or her relatives in the pleadings, filing of complaints or issuing notices or news items which may have adverse impact on the business prospect or the job of the spouse and filing repeated false complaints and cases in Court against the spouse would, in the facts of the case, amount to causing mental cruelty to the other spouse.
In Vijaykumar Ramchandra Bhate v. Neela Vijaykumar Bhate, (2003) 6 SCC 334, the Hon’ble Apex Court considered the question, whether the averments, accusations and character assassination in the written statement constitutes mental cruelty for sustaining the claim for divorce under Section 13(1)(i-a) of the Hindu Marriage Act, 1955, and held as under:
“The position of law in this regard has come to be well settled and declared that leveling disgusting accusations of unchastity and indecent familiarity with a person outside wedlock and accusations of extra marital relationship is a grave assault on the character, honour, reputation, status as well as the health of the wife. Such aspersions of perfidiousness attributed to the wife, viewed in the context of an educated Indian wife and judged by Indian conditions and standards would amount to worst form of insult and cruelty, sufficient by itself to substantiate cruelty in law, warranting the claim of the wife being allowed. That such allegations made in the written statement or suggested in the course of examination satisfy the requirement of law has also come to be firmly laid down by the Court.” Smt. Jayanti v. Dr. Om Prakash Pandey, 2017 (124) ALR 117.

Leave a comment

Filed under Accusations, Cruelty and Mental Cruelty

Fraud – Meaning of

In Bhaurao Dagdu Paralkar v. State of Maharashtra, (2005) 7 SCC 605, it was held as under:
“By fraud is meant an intention to deceive; whether it is from any expectation of advantage to the party himself or from ill will towards the other is immaterial. The expression “fraud” involves two elements, deceit and injury to the person deceived. Injury is something other than economic loss, that is, deprivation of property, whether movable or immovable, or of money and it will include any harm whatever caused to any person in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary loss. A benefit or advantage to the deceiver, will almost always cause loss or detriment to the deceived. Even in those rare cases where there is a benefit or advantage to the deceiver, but no corresponding loss to the deceived, the second condition is satisfied.
A fraud is an act of deliberate deception with the design of securing something by taking unfair advantage of another. It is a deception in order to gain by another’s loss. It is a cheating intended to get an advantage.
Fraud, as is well known, vitiates every solemn act. Fraud and justice never dwell together. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former, either by words or letters. It is also well settled that misrepresentation itself amounts to fraud. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by willfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations, which he knows to be false, and injury ensues therefrom although the motive from which the misrepresentations proceeded may not have been bad. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. DDA v. Bankmens Cooperative Group Housing Society Limited. (2017) 7 SCC 636.

Leave a comment

Filed under Fraud

Taxing Statute – Interpretation of a Word

The principle of statutory interpretation with regard to a word in taxing statutes are well established. In Porritts & Spencer (Asia) Ltd. v. State of Haryana, (1979) 1 SCC 82, it was laid down as under:
“Where a word has a scientific or technical meaning and also an ordinary meaning according to common parlance, it is in the latter sense that in a taxing statute the word must be held to have been used, unless contrary intention is clearly expressed by the Legislature.”
In Union of India v. Delhi Cloth & General Mills Co. Ltd., AIR 1963 SC 791, the question arose as to how the term “refined oil” occurring in tariff was to be construed. There was no competition between the tariff entry with any other, nor was there any need to reconcile and harmonise the said entry with any other provision of the tariff. The Court, therefore, considered the term “refined oil” by applying the commercial meaning or trade nomenclature test and held that only deodorized oil can be considered to be refined oil. The court also referred to the specification of “refined oil” by the Indian Standards Institution and held that:
“This specification by the Indian Standards Institution furnishes very strong and indeed almost incontrovertible support for Dr. Nanji’s view and the respondents’ contention that without deodorization the oil is not “refined oil” as is known to the consumers and the commercial community.”
In Grenfell v. IRC, (1876) LR 1 EX D 242 (DC) it was observed:
“that if a statute contains language which is capable of being construed in a popular sense such statute is not to be construed according to the strict or technical meaning of the language contained in it, but is to be construed in its popular sense, meaning of course, by the words “popular sense”, that sense which people conversant with the subject-matter with which the statute is dealing would attribute to it. But if a word in its popular sense and read in an ordinary way is capable of two constructions, it is wise to adopt such a construction as is based on the assumption that Parliament merely intended to give so much power as was necessary for carrying out the objects of the Act and not to give any unnecessary powers. In other words, the construction of the words is to be adopted to the fitness of the matter of the Statute.”
In Holt & Company v. Collyer, it was held thus:
“If it is a word which is of a technical or scientific character then it must be construed according to that which is its primary meaning, namely, its technical or scientific meaning.”
The Court in K.V. Varkey v. STO, AIR 1956 TC 105 specifically declined to apply the popular or commercial meaning of “Tea” occurring in the sales tax statute holding that the context of the statute required that the technical meaning of “a product of plant life” required to be applied and therefore green tea leaves were tea even though they might not be tea as is known in the market. Parle Agro Private Ltd. v. Commissioner of Commercial Taxes, (2017) 7 SCC 540.

Leave a comment

Filed under Interpretation of a Word

Judicial Discretion

In Ramji Dayawala & Sons (P) Ltd. v. Invest Import, (1981) 1 SCC 80 it was held:
“When it is said that a matter is within the discretion of the court, it is to be exercised according to well established judicial principles, according to reason and fair play and not according to whim and caprice. “Discretion”, said Lord Mansfield in R v. Wilkes, (1558-1774) All ER Rep 570, when applied to a court of justice, means sound discretion guided by law. It must be governed by rule, not by humour; it must not be arbitrary, vague and fanciful, but legal and regular (see Craies on Statute Law, 6th Edition, P. 273).
In Aero Traders (P) Ltd. v. Ravinder Kumar Suri, (2004) 8 SCC 307, the court observed:
“According to Black’s Law Dictionary “judicial discretion” means the exercise of judgment by a Judge or court based on what is fair under the circumstances and guided by the rules and principles of law; a court’s power to act or not act when a litigant is not entitled to demand the act as a matter of right. The word “discretion” connotes necessarily an act of a judicial character, and, as used with reference to discretion exercised judicially, it implies the absence of a hard and fast rule, and it requires an actual exercise of judgment and a consideration of the facts and circumstances which are necessary to make a sound, fair and just determination, and a knowledge of the facts upon which the discretion may properly operate. (See 27Corpus Juris Secundum, P. 289) When it is said that something is to be done within the discretion of the authorities, that something is to be done according to the rules of reason and justice and not according to private opinion: according to law and not humour. It only gives certain latitude or liberty accorded by statute or rules, to a Judge as distinguished from a ministerial or administrative official, in adjudicating on matters brought before him.” State of Himachal Pradesh v. Nirmala Devi, (2017) 7 SCC 262.

Leave a comment

Filed under Judicial Discretion