1. Dharmaji Shankar Shinde v. Rajaram Shripad Joshi (dead) Through Lrs.
Transfer of Property Act, 1882 - Section 58 (c) Proviso - If the sale and agreement to repurchase are embodied in the separate documents then the transaction cannot be a “mortgage by conditional sale” irrespective of whether the documents are contemporaneously executed; but the converse does not hold good. Observing that the mere fact that there is only one document, it does not necessarily mean that it must be a mortgage and cannot be a sale. [Para 13]
Interpretation of Deeds - The question in each case is the determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous then in the light of the evidence of the surrounding circumstances, it must be given their true legal effect. If there is any ambiguity in the language employed, the intention is to be ascertained from the contents of the deed and the language of the deed is to be taken into consideration to ascertain the intention of the parties. Evidence of contemporaneous conduct of the parties is to be taken into consideration as the surrounding circumstances. [Para 14]
Transfer of Property Act, 1882 - Mere incorporation of the word “borrowed” and “mortgage by conditional sale” in the document cannot by itself establish that there is a debtor-creditor relationship.
Mention of “borrowed a sum of Rs.700/-“ in the document is incidental. Mere incorporation of the word “borrowed” and “mortgage by conditional sale” cannot by itself establish that there is a debtor-creditor relationship. In fact, as pointed out earlier, the recitals of the document make it clear that the parties expressed their intention to put an end to the debtor-creditor relationship with respect to the sum of Rs.700/- that existed prior to the execution of Ex.P-73 and creating a relationship of vendor and vendee by transfer of the suit property for consideration of Rs.2500/-. As rightly observed by the trial court, in Ex.P-73, there is no mention of the rate of interest, right of foreclosure that are essential in a deed of mortgage. [Para 18]
Transfer of Property Act, 1882 - Section 58 (c) - Scope of proviso to Section 58(c) - Distinction between “mortgage by conditional sale” and “sale with agreement to repurchase” - Intention of the parties.
Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside. [Para 27]
Transfer of Property Act, 1882 - Section 58 (a) - Non-mention of the mortgage amount for which the interest in the immovable property was created as security, indicate that the parties have never intended to create a mortgage deed.
As per Section 58(a) of the Transfer of Property Act, the mortgage is the transfer of an interest in specific immovable property as security for the repayment of the debt; but such interest itself is immovable property. In the case in hand, non-mention of the mortgage amount for which the interest in the immovable property was created as security, indicate that the parties have never intended to create a mortgage deed. If really the parties have intended the transaction to be a mortgage, while handing over possession of the property to Shankar Shinde for cultivation, the parties would have stated that the cultivation and enjoyment of usufructs are in lieu of the interest payable by Shripad Joshi on the amount. But that was not to be so. The transfer of possession and right to cultivate the suit land could be conceived as the intention of the executant to transfer the right, title and interest in the property which are essentials in any transaction of a sale. [Para 20]
Transfer of Property Act, 1882 - Section 58 (c) - “mortgage by conditional sale” - Definition of.
In a “mortgage by conditional sale”, the transfer is made as a security to a loan taken by the mortgagor-owner; whereas in a “sale with a condition to repurchase”, the sale is made by the vendor-owner reserving with himself a right to repurchase it within a stipulated time. A sale with a condition of retransfer is not a mortgage since the relationship of debtor and creditor does not exist and there is no debt for which the transfer is made as a security. Whether the document is a “mortgage by conditional sale” or “sale with a condition to repurchase” is to be ascertained from the intention of the parties. It is trite law that the intention of the parties should be gathered from the recitals of the document itself. [Para 10]
Question of Law
Whether Ex.P-73 is a “mortgage by conditional sale” or a “sale with condition for reconveyance” and whether there exists any debtor and creditor relationship.
Facts of the Case
When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a “mortgage by conditional sale”. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained.
Case Number : C.A. No. 7448 of 2008 23-04-2019
Interpretation of Deeds - The question in each case is the determination of the real character of the transaction to be ascertained from the provisions of the deed viewed in the light of the surrounding circumstances. If the words are plain and unambiguous then in the light of the evidence of the surrounding circumstances, it must be given their true legal effect. If there is any ambiguity in the language employed, the intention is to be ascertained from the contents of the deed and the language of the deed is to be taken into consideration to ascertain the intention of the parties. Evidence of contemporaneous conduct of the parties is to be taken into consideration as the surrounding circumstances. [Para 14]
Transfer of Property Act, 1882 - Mere incorporation of the word “borrowed” and “mortgage by conditional sale” in the document cannot by itself establish that there is a debtor-creditor relationship.
Mention of “borrowed a sum of Rs.700/-“ in the document is incidental. Mere incorporation of the word “borrowed” and “mortgage by conditional sale” cannot by itself establish that there is a debtor-creditor relationship. In fact, as pointed out earlier, the recitals of the document make it clear that the parties expressed their intention to put an end to the debtor-creditor relationship with respect to the sum of Rs.700/- that existed prior to the execution of Ex.P-73 and creating a relationship of vendor and vendee by transfer of the suit property for consideration of Rs.2500/-. As rightly observed by the trial court, in Ex.P-73, there is no mention of the rate of interest, right of foreclosure that are essential in a deed of mortgage. [Para 18]
Transfer of Property Act, 1882 - Section 58 (c) - Scope of proviso to Section 58(c) - Distinction between “mortgage by conditional sale” and “sale with agreement to repurchase” - Intention of the parties.
Though the transaction and condition to repurchase are embodied in one document, having regard to the intention of the parties and the surrounding circumstances, in our considered view, Ex.P-73 does not fall within the proviso to Section 58(c) of the Transfer of Property Act. Ex.P-73 a registered document, in our considered view, is not a mortgage but a transaction of sale with condition to repurchase. The High Court and the first Appellate Court did not properly appreciate the recitals in Ex.P-73 and that it does not create expressly or by implication the relationship of debtor and creditor. The High Court failed to note that since Shripad Joshi failed to pay the amount within the stipulated period of five years, the respondents-plaintiffs have lost their right to repurchase the property. When the findings of the first Appellate Court and the High Court though concurrent, whey they are shown to be perverse, this Court would certainly interfere with the findings of fact recorded by the courts below. The High Court has not properly appreciated the evidence and Ex.P-73 in the light of the surrounding circumstances and the impugned judgment is liable to be set aside. [Para 27]
Transfer of Property Act, 1882 - Section 58 (a) - Non-mention of the mortgage amount for which the interest in the immovable property was created as security, indicate that the parties have never intended to create a mortgage deed.
As per Section 58(a) of the Transfer of Property Act, the mortgage is the transfer of an interest in specific immovable property as security for the repayment of the debt; but such interest itself is immovable property. In the case in hand, non-mention of the mortgage amount for which the interest in the immovable property was created as security, indicate that the parties have never intended to create a mortgage deed. If really the parties have intended the transaction to be a mortgage, while handing over possession of the property to Shankar Shinde for cultivation, the parties would have stated that the cultivation and enjoyment of usufructs are in lieu of the interest payable by Shripad Joshi on the amount. But that was not to be so. The transfer of possession and right to cultivate the suit land could be conceived as the intention of the executant to transfer the right, title and interest in the property which are essentials in any transaction of a sale. [Para 20]
Transfer of Property Act, 1882 - Section 58 (c) - “mortgage by conditional sale” - Definition of.
In a “mortgage by conditional sale”, the transfer is made as a security to a loan taken by the mortgagor-owner; whereas in a “sale with a condition to repurchase”, the sale is made by the vendor-owner reserving with himself a right to repurchase it within a stipulated time. A sale with a condition of retransfer is not a mortgage since the relationship of debtor and creditor does not exist and there is no debt for which the transfer is made as a security. Whether the document is a “mortgage by conditional sale” or “sale with a condition to repurchase” is to be ascertained from the intention of the parties. It is trite law that the intention of the parties should be gathered from the recitals of the document itself. [Para 10]
Question of Law
Whether Ex.P-73 is a “mortgage by conditional sale” or a “sale with condition for reconveyance” and whether there exists any debtor and creditor relationship.
Facts of the Case
When Ex.P-73 is clear and unambiguous, the first Appellate Court erred in relying upon Ex.P-69-receipt to draw inference as to the intention of the parties. The first Appellate Court did not keep in view that the appellants-defendants have denied Ex.P-69- receipt, hence, burden lies upon the plaintiffs to prove the contents of Ex.P-69 to bring in the intention of the parties that the transaction between the parties was only a “mortgage by conditional sale”. When the recitals in Ex.P-73-document is sufficient to gather the intention of the parties, the first Appellate Court erred in placing reliance on Ex.P-69-receipt to ascertain the intention of the parties to upset the findings of fact recorded by the trial court. The findings of the first Appellate Court and the High Court in placing reliance upon Ex.P-69-receipt to conclude that the transaction was a mortgage and not a sale are erroneous and the same cannot be sustained.
Case Number : C.A. No. 7448 of 2008 23-04-2019
Respondent's Advocate : Abha R. Sharma
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy
Judgment By : Hon'ble Mrs. Justice R. Banumathi
2. Nagji Odhavji Kumbhar v. The State of Gujarat
The Indian Penal Code, 1860 - Section 302 - Murder - Right of Private Defence - The right of private defence is not available when the alleged assailants are unarmed. The right of private defence is to protect the person and the property. In such right, the person cannot cause more harm than what is necessary for the protection of the person and the property.
What harm can be expected from the hands of the deceased when they were un-armed, whereas from the testimony of PW-3 and PW-4, the injured witnesses, the appellants were armed with spears and other weapons. The Post-Mortem report corroborates an oral testimony that both the deceased have received stab wounds. Therefore, the appellants cannot be said to have acted in the right of their private defence. Since the deceased were not armed, therefore, the appellants are not entitled to the right of private defence. [Para 15 & 17]
The Indian Penal Code, 1860 - Sections 302 and 304 - Murder - Right of Private Defence - Multiple Wounds - Since there are multiple wounds, it cannot be said that the accused have acted at the spur of the moment without pre-meditation and that the accused are not taken any advantage or acted in a cruel or unusual manner.
The deceased had multiple stab wounds on the chest. Since there are multiple wounds, it cannot be said that the appellants have acted at the spur of the moment without pre-meditation and that the appellants are not taken any advantage or acted in a cruel or unusual manner. It is not a case of single injury which one can infer on account of sudden fight. We, therefore, do not find any merit in the alternate argument that the appellants are entitled to be convicted under Section 304 IPC as they have given multiple injuries on the vital parts of the deceased. The learned Trial Court as well as the High Court was perfectly justified in law in convicting and sentencing the appellants for the offence under Section 302 IPC. We do not find any error in the order passed which may warrant our interference in the present appeal. The criminal appeal is dismissed
Case Number : Crl.A. No. 880 of 2009 23-04-2019
What harm can be expected from the hands of the deceased when they were un-armed, whereas from the testimony of PW-3 and PW-4, the injured witnesses, the appellants were armed with spears and other weapons. The Post-Mortem report corroborates an oral testimony that both the deceased have received stab wounds. Therefore, the appellants cannot be said to have acted in the right of their private defence. Since the deceased were not armed, therefore, the appellants are not entitled to the right of private defence. [Para 15 & 17]
The Indian Penal Code, 1860 - Sections 302 and 304 - Murder - Right of Private Defence - Multiple Wounds - Since there are multiple wounds, it cannot be said that the accused have acted at the spur of the moment without pre-meditation and that the accused are not taken any advantage or acted in a cruel or unusual manner.
The deceased had multiple stab wounds on the chest. Since there are multiple wounds, it cannot be said that the appellants have acted at the spur of the moment without pre-meditation and that the appellants are not taken any advantage or acted in a cruel or unusual manner. It is not a case of single injury which one can infer on account of sudden fight. We, therefore, do not find any merit in the alternate argument that the appellants are entitled to be convicted under Section 304 IPC as they have given multiple injuries on the vital parts of the deceased. The learned Trial Court as well as the High Court was perfectly justified in law in convicting and sentencing the appellants for the offence under Section 302 IPC. We do not find any error in the order passed which may warrant our interference in the present appeal. The criminal appeal is dismissed
Case Number : Crl.A. No. 880 of 2009 23-04-2019
Petitioner's Advocate : Ravi Prakash Mehrotra
Respondent's Advocate : Hemantika Wahi
Bench : Hon'ble Mr. Justice Sanjay Kishan Kaul, Hon'ble Mr. Justice Hemant Gupta
Judgment By : Hon'ble Dr. Justice Hemant Gupta
3. Globe Ground India Employees Union v. Lufthansa German Airlines
The Industrial Disputes Act, 1947 - Section 10 (4) - Impleadment of Parent Company - Even in a subsidiary company which is an independent corporate entity, if any other company is holding shares, by itself is no ground to order impleadment of parent company per se.
In the case at hand, it is clear that the second respondent itself is a company in which the subsidiary of the first respondent, namely, Globe Ground Deutschland GmbH, was holding 51% shares and 49% shares were held by the Bird Group. As per the case of the appellant, the Bird Group has floated another company and started handling services from the month of January, 2009 by uitlizing the same equipments and vehicles belonging to the second respondent. Further, having regard to limited scope of adjudication, to answer the reference, which is circumscribed by Section 10(4) of the Industrial Dispute Act, 1947, we are of the view that the first respondent is neither necessary nor proper party, to answer the reference by the Industrial Court. Further, we do not find any error in the order passed by the learned Single Judge or in the order of the Division Bench passed by the High Court of Delhi in the impugned judgment, so as to interfere with such reasoned and concurrent findings recorded by the courts. Thus, these civil appeals are devoid of merits and the same are accordingly dismissed, with no order as to costs. [Para 19]
The Industrial Disputes Act, 1947 - Section 10 (4) - Impleadment of a party who is not a party to the proceedings - What is required to be considered ?
Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party who is not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions “necessary” or “proper” parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings. [Para 11]
The Code of Civil Procedure, 1908 - Order 1 Rule 10 - Impleadment of Third Party - Test to be applied while considering the application.
To consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence.
Case Number : C.A. No. 4076 - 4077 of 2019 23-04-2019
Whenever, an application is filed in the adjudication proceedings, either before the Industrial Tribunal in a reference made under the Industrial Disputes Act, 1947 or any other legal proceedings, for impleadment of a party who is not a party to the proceedings, what is required to be considered is whether such party which is sought to be impleaded is either necessary or proper party to decide the lis. The expressions “necessary” or “proper” parties have been considered time and again and explained in several decisions. The two expressions have separate and different connotations. It is fairly well settled that necessary party, is one without whom no order can be made effectively. Similarly, a proper party is one in whose absence an effective order can be made but whose presence is necessary for complete and final decision on the question involved in the proceedings. [Para 11]
The Code of Civil Procedure, 1908 - Order 1 Rule 10 - Impleadment of Third Party - Test to be applied while considering the application.
To consider the scope of application, the tests are:- (1) there must be a right to some relief against such party in respect of controversies involved in the proceedings; (2) no effective decree can be passed in its absence.
Case Number : C.A. No. 4076 - 4077 of 2019 23-04-2019
Petitioner's Advocate : Satya Mitra
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy
Judgment By : Hon'ble Mr. Justice R. Subhash Reddy
4. Cantonment Board, Meerut v. Afzal
The Cantonments Act, 2006 - Section 360 - The Cantonments Act, 1924 - Section 185 - Law relating to administration of cantonments - Quashing of Notices.
Case Number : C.A. No. 3814 of 2019 23-04-2019
Case Number : C.A. No. 3814 of 2019 23-04-2019
Petitioner's Advocate : Rekha Pandey
Bench : Hon'ble Mrs. Justice R. Banumathi, Hon'ble Mr. Justice R. Subhash Reddy
Judgment By : Hon'ble Mr. Justice R. Subhash Reddy
5. Monthi Menezes (d) by Lr. v. Devaki Amma (d) by Lr.
The Land Reforms Act, 1961 (Karnataka) - Sections 2 (18) and 4 - definition of "land" - Vesting of lands in the State Government - the expression refers not only to the land which is actually used for agricultural purposes but even to the land which is used or is capable of being used for agricultural purposes or even the purposes subservient thereto.
On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law. [Para 10 & 11]
Case Number : C.A. No. 3539 of 2009 23-04-2019
On the facts and in the circumstances of this case, the said definition deserves due consideration while dealing with the challenge to the order made by the Tribunal. In view of the aforesaid, where we find that the High Court has not adverted to all the facts of the case as also to the law applicable, the proper course in this matter would be to remand the matter and to request the High Court to decide the writ petition afresh on merits and in accordance with law. [Para 10 & 11]
Case Number : C.A. No. 3539 of 2009 23-04-2019
Petitioner's Advocate : Vaijayanthi Girish
Respondent's Advocate : K.V. Bharathi Upadhyaya
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari
Judgment By : Hon'ble Mr. Justice Dinesh Maheshwari
6. National Insurance Company Ltd. v. Mannat Johal
The Motor Vehicles Act, 1988 - the basics regarding meaning of the expression "just" - While dealing with the question of quantification in a claim for compensation, the endeavor has to be to ensure awarding of just compensation to the claimant/s.
In a case like the present one, relating to the death of the vehicular accident victim, any process of awarding "just" compensation involves assessment of such amount of pecuniary loss which could be reasonably taken as the loss of dependency suffered by the claimants due to the demise of the victim. In other words, such a process, by its very nature, involves the assessment of monetary contribution that the claimants were likely to receive from the deceased had he not met with the untimely end due to the accident. For the purpose of such an assessment, while some of the basic facts, like the age, job and income of the deceased and the number of dependents with extent of their dependency, could be reasonably ascertained from the evidence on record, yet, several uncertain factors also, per force, come into play, like the future prospects of the deceased coupled with various imponderables related with a human life. As the process, by its very nature, involves a substantial deal of guess-work, this Court, over the years, has evolved and applied several principles so as to ensure that as far as possible, the methods for assessment remain uniform, curbing against disparity in the amount of compensation to be awarded in similarly circumstanced cases. [Para 9]
The Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 - Rule 5 - Criteria for financial assistance.
Case Number : C.A. No. 4079 - 4081 of 2019 23-04-2019
In a case like the present one, relating to the death of the vehicular accident victim, any process of awarding "just" compensation involves assessment of such amount of pecuniary loss which could be reasonably taken as the loss of dependency suffered by the claimants due to the demise of the victim. In other words, such a process, by its very nature, involves the assessment of monetary contribution that the claimants were likely to receive from the deceased had he not met with the untimely end due to the accident. For the purpose of such an assessment, while some of the basic facts, like the age, job and income of the deceased and the number of dependents with extent of their dependency, could be reasonably ascertained from the evidence on record, yet, several uncertain factors also, per force, come into play, like the future prospects of the deceased coupled with various imponderables related with a human life. As the process, by its very nature, involves a substantial deal of guess-work, this Court, over the years, has evolved and applied several principles so as to ensure that as far as possible, the methods for assessment remain uniform, curbing against disparity in the amount of compensation to be awarded in similarly circumstanced cases. [Para 9]
The Haryana Compassionate Assistance to the Dependents of Deceased Government Employees Rules, 2006 - Rule 5 - Criteria for financial assistance.
Case Number : C.A. No. 4079 - 4081 of 2019 23-04-2019
Petitioner's Advocate : Sudhir Naagar
Bench : Hon'ble Mr. Justice Abhay Manohar Sapre, Hon'ble Mr. Justice Dinesh Maheshwari
Judgment By : Hon'ble Mr. Justice Dinesh Maheshwari