Operation of Transfer

Operation of Transfer:

(Sec.8 of the Transfer of Property Act 1882)

“Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.

Such incidents include,--

Where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;

Where the property is machinery attached to earth, the movable parts thereof;

Where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows and all other things provided for permanent use therewith;

Where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer.

Where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

Thumb Impression in documents

Thumb Impression for indemnification of parties

A registering officer may require any executant, claimant, or identifying or other witness regarding whose identity he has to satisfy himself but who is not personally known to him to affix his presence, whether such person can write his name or not, the impression of the bulb of his left thumb both in the register of thumb impressions as well as on the document presented for registration.

Such impression shall invariably be taken in the case of marksmen and illiterate females.

If the left thumb does not give a clear impression or is non-existent the impression of any finger of the left hand shall be obtained.

Failing this, the impression of the right thumb, or if that also is non-existent or deformed, of any finger of the right hand, shall be taken.

Thumb impression shall be dispensed with in the case of a person suffering from leprosy or contagious disease. (In such cases a note should be entered in the register of thumb-impression explaining the circumstances under which it has not been obtained.)

In the case of a gosha woman who does not appear before a registering officer and whose examination in connection with the registration of a document, the finger impression shall be taken by the ‘hammamnee’ who shall clearly instructed as to the process.

(Rule 60 of the Registration Act.)

Document executed by an illiterate

“A document executed by a person who is unable to read shall be read out and, if necessary explained to him.

A document written in a language not understood by the executing party shall, in like manner, be interpreted to him.

When a party to be examined is dumb, recourse must be had to the means by which he makes himself understood.’

Rule 59 of The Registration Rules, 1983

English Mortgage

"English Mortgage"

Sec.58 (e) of the Transfer of Property Act, 1882

"Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfer the mortgaged property absolutely to the mortgagee but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage."

Mortgage by conditional sale

"Mortgage by conditional sale"

Sec.58 (c) of the Transfer of Property Act, 1882

"When the mortgagor ostensibly sells the mortgaged property --

(i) on condition that on default of payment of the mortgage money on a certain date the sale shall become absolute, or  

(ii) on condition that on such payment being made the sale shall become void; or 

(iii) on condition that on such payment being made the buyer shall transfer the property to the seller,

-- the transaction is called a mortgage by conditional sale.

Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

Arbitration

Arbitration

The Supreme Court in Guru Foundation Rattan and sons, 1981 (4) SCC 634, observed as,

“Interminable, time consuming, complex and expensive court procedures implied jurists to search for an alternative forum, less formal, more effective and speedy for resolution of disputes avoiding procedural claptrap and this led them to Arbitration Act, 1940 (Act for short).

However, the way in which the proceedings under the Act are conducted and without an exception challenged in Courts, has made lawyers laugh and legal philosophers weep.

Experience shows and law reporters bear ample testimony that the proceedings under the Act have become highly technical accompanied by unending prolixity, at every stage providing a legal trap to the unwary.

Informal forum chosen by the parties for expeditious disposal of their disputes has by the decisions of the Courts been clothed with “legalese” of unforeseeable complexity. This case amply demonstrates the same.”

“Desertion is a ground for divorce”

“Desertion is a ground for divorce”

The Madras High Court had an occasion to discuss the five essential factors which must be established under Sec.13(1)(i-b) of the Hindu Marriage Act 1955 to succeed in the petition for divorce on the ground of desertion are as follows:-

(1) The spouses must have parted or terminated all joint life;
(2) The deserting spouse must have an intention to desert the other spouse;
(3) The deserted spouse must not have agreed to the separation;
(4) The desertion must have been without cause;
(5) This state of affairs must be continued for at least two years immediately preceding the presentation of the petition.

(see 1997 (III) CTC 718)

In T.Rangaswami v. T.Aravindammal, AIR 1957 Mad 243, while dealing with the scope of the said section, Ramasamy, J., has held as follows:-

“In certain circumstances the deserting spouse may not be the person who actually leaves the matrimonial home. The actual parting may be due to the deserted spouse making continued joint life impossible and thus compelling the deserted spouse to leave the matrimonial home. In such cases the actual abandoning of the matrimonial home is not the act of the person against whom all allegation of desertion is made, but the act of the person making the allegation. The test by which the offence is judged is not the abandoning of the matrimonial home, but the fact that the other party has caused such abandonment by his actions, since he must be taken to intend the consequence of such actions. If it is a natural consequence of the behavior of one spouse that the other will leave the matrimonial home, the offending spouse must be presumed to have intended that this should happen. Cases in which the parting of the spouses has arisen in these circumstances are sometimes called “constructive” desertions.

The desertion may be terminated in the following ways:

(1) By resumption of cohabitation between the spouses;
(2) By the desertion becoming a separation of the spouses by agreement;
(3) By the deserted spouse refusing a genuine offer made by the deserting spouse to resume cohabitation;
(4) By the deserting spouse becoming insane.”

"All Trustees shall act collectively”

"All Trustees shall act collectively”

In Narayanan Iyer’s Indian Trust Act 4^th Edition (1992) the learned author has said thus:-

Managing Trustees:- Where there are more than one trustee, Section 48 of the Act lays down that all of them must join since one of them cannot act singly. Accordingly managing trustees have no power to create lease without concurrence of other trustees. See Abdul Rahman v. Angul Bala, AIR 1974 Cal. 16.

If all the trustees do not join in execution of the conveyance of the trust property, the conveyance is invalid and such a conveyance passed no title to the alienee. All trustees from one collective trustee and must exercise powers in joint capacity and not separately. Vide Supreme Court in Janakirama Iyer v. Nilakanta Iyer, AIR 1962 SC 633.

Consequently, a lease is transfer within the meaning of Section 15 of the Transfer of Property Act, created by one of the co-trustees is bad in law and does not convey any right, title or interest to the lessee defendant and he becomes a trespasser. See M/s. Karnataka Trader, Hubli v. Hiren Shamji, AIR 1987 Kar. 264.

Christian Inheritance

Christian Inheritance under the Indian Succession Act 1925

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Sec.33: The Indian Succession Act 1925

33. Where intestate has left widow and lineal descendants, or widow and kindred only, or widow and no kindred. -Where the intestate has left a widow—

(a) if he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants, according to the rules hereinafter contained;

(b) [save as provided by section 33-A], if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to those who are kindred to him, in the order and according to the rules hereinafter contained;

(c) if he has left none who are of kindred to him, the whole of his property shall belong to his widow.

Marriage is one of the necessary ‘samaskaras or religious rites’

Marriage is one of the necessary ‘samaskaras or religious rites’

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The Division Bench of Madras High Court in Devulapalli Kameswara Sastri and others v. Polavarapu Veeracharlu, minor by his guardian Kodamachi Bhimanna, ILR 34 Mad. 422 has held thus:-

“The marriage of a member of the coparcenary is a family purpose; and where it is reasonably necessary on the part of a prudent manager to borrow money for such purpose, the transaction will bind the coparcenary whether they are Sudras or other classes.

Marriage is one of the necessary samaskaras or religious rites, in the case of Sudras as well as other classes. The necessity, which will justify an alienation by the manager is not to be understood in the sense of what is absolutely indispensable but what according to the notions of a Hindu family would be regarded as reasonable and proper.”

In G.Gopalakrishnam Razu, minor by mother Bangaratta v. S.VEnkatanarasu Razu and 3 others, ILR 37 Mad. 273 a Full Bench of Madras High Court has concluded in the following manner:

“Marriage is obligatory on Hindus who do not desire to adopt the life of a perpetual Brahmachari or of a Sanyasi and debts reasonably incurred for the marriage of a twice born Hindu male are binding on the joint family properties.”

In another Full Bench judgment of the Madras High Court in D.Srinivasa Iyengar v. Thiruvengadathaiyangar, ILR 38 Mad. 556 wherein the majority view is as follows:

“Marriage is an obligatory ceremony for Hindus who do not desire to adopt the life of a Sanyasi; and a fund for the expenses of the marriage of unmarried co-sharers should be set apart at the partition of the paternal estate.”

Power of High Court to issue a writ of Certiorari

The limits of jurisdiction of High Court in issuing a writ of Certiorai:

The Supreme Court in Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477, wherein it is held as follows:-

The question about the limits of jurisdiction of High Court in issuing a writ of certiorari  under Art. 226 has been frequently considered by this Court and the true legal position in that behalf is no longer in doubt.

A writ of certiorari  can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals; these are cases where orders are passed by inferior courts or tribunals without jurisdiction, or is in excess of it, or as a result of failure to exercise jurisdiction conferred on it, the Court or Tribunal acts illegally or improperly, as for instance, it decides a question without giving an opportunity to be heard to the party affected by the order; or where the procedure adopted in dealing with the dispute is opposed to principles of natural justice.

There is, however, no doubt that the jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.

An error of law which is apparent on the fact of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be.

In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari.

In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the tribunal was insufficient or inadequate to sustain the impugned findings. The adequacy or sufficiency of evidence led on a point and the interference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ Court.

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Retrospective operation of law declared by SC

Scope of Retrospective operation of law declared by the Supreme Court

The Apex Court in Golak Nath v. State of Punjab, AIR 1967 SC 1643, has dealt with the powers of the court regarding the scope of retrospective operation of law declared by the Supreme Court, which is as follows –

“As this Court for the first time has been called upon to apply the doctrine evolved in a different country under different circumstances, we would like to move warily in the beginning. We would lay down the following propositions:

(1)   The doctrine of prospective overruling can be invoked only in matters arising under our Constitution;

(2)   It can be applied only by the highest court of the country, i.e. the Supreme Court as it has the constitutional jurisdiction to declare law binding on all the courts in India;

(3)   The scope of the retroactive operation of the law declared by the Supreme Court superseding its ‘earlier decisions’ is left to its discretion to be moulded in accordance with the justice of the cause or matter before it.”

Amendment of pleadings after limitation

Amendment of pleadings after limitation period:

As pointed out by Supreme Court in Gupta & Sons v. Damodhar Valley Corporation, AIR 1967 SC 96, where the amendment does not constitute the addition of a new cause of action or raise a different case, but amounts merely to a different or additional approach to the same facts, the amendments is to be allowed even after expiry of the statutory period of limitation.

In this leading judgment the Supreme Court has also observed—

“The object of Courts and rules of procedure is to decide the rights of parties and not to punish them for mistake. Further, a party is strictly not entitled to relief on the statute of limitation when what is sought to be brought in by the amendment can be said in substance to be already in the pleadings sought to be amended.
Even though the decision cited above would clearly show that the amendment sought to be made is subject to the law of limitation, if the cause of action is not going to be changed and in anything happens after filing the suit, it is open to the affected party to take necessary steps for amendment of the plaint.
No doubt, no amendment will be allowed to introduce a new set of ideas to the prejudice of any right acquired by any party of lapse of time."

On the above laid principles, it is clear that amendment can be allowed at any point of time, provided the same is not barred by limitation and further provided it does not change the original cause of action or the case.

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Manufacturing Process means...

“Manufacturing process”

The term ‘manufacturing process’ is defined in Sec.2(k) of the Factories Act, 948 is defined as follows:-

“manufacturing process means any process for—

(i)                Making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking up, demolishing, or otherwise treating or adapting any article or substance with a view to its use, sale transport, delivery or disposal, or

(ii)              Pumping oil, water, sewage or any other substance, or

(iii)            Generating, transforming or transmitting power; or

(iv)            Composing types of printing, printing by letter press, lithography, photogravure or other similar process or book binding; or

(v)              Constructing, reconstructing, repairing, refitting, finishing or breaking up ships or vessels; or

(vi)            Preserving or storing any article in cold storage.”

Factory means...

The Factories Act 1948

A Factory means any premises ---

(i)                Whereon 10 or more workers are working (or were working on any day of the preceding twelve months) and in any part of which a manufacturing process is being carried on with the aid of power, or is ordinarily so carried on; or

(ii)              Whereon 20 or more workers are working (or were working on any day of the preceding twelve months) and in any part of which a manufacturing process is being carried on without the aid of power, or is ordinarily so carried on;

(iii)            But does not include a mine or a mobile unit of armed forces, or a railway running shed or a hotel, restaurant or eating place.

An Electronic Data Processing Unit or a Computer Unit is installed in ay premises shall not be construed to make it a factory if no manufacturing process is being carried on in such premises or part thereof.