1. Payment of duty – Liability of financial institution – In respect of any instrument executed in its favour or create any right in favour of such financial institution – Provision in that regard not arbitrary, unreasonable or unfair – Article 19(1)(g) of Constitution – Maharashtra Stamp Act of 1958, S. 30A
Agreement relating to deposit of title deeds – compulsorily registrable:
Section 30 is dealing with duty by whom payable. As set out in section 30, in the absence of an agreement to the contrary the expenses of providing the proper stamp shall be borne in cases of these instruments and which are set out in clause (a) of S. 30 by the person drawing or making such instrument, in the case of a conveyance including conveyance of mortgaged property, by the grantee in the case of a lease or agreement to lease by the lessee or intended lessee. Hence, the duties are payable by these persons and on instruments falling in the categories enumerated above. However, notwithstanding anything contained in section 30 any instrument referred to in the above clauses of section 30 is executed on or after the commencement of the Maharashtra Tax Laws (Levy and Amendment) Act, 2013, in favour of or by any financial institution which creates any right in favour of any such financial institution then the liability to pay proper stamp duty shall be on the financial institution concerned without affecting its rights, if any, to collect it from the other party.
The court observed that this cannot be said to be an impediment on the right to carry on banking business or any trade, occupation and profession within the meaning of sub-clause (g) of clause (1) of Article 19 of the Constitution of India. It is only after the Amendment Act that this liability comes on to the bank / financial institution.
A large number of dealings and transactions so also services rendered by banks and financial institutions resulting in large number of instruments being executed in favour of or by any financial institution create a right in favour of such institutions. Therefore, to smoothen the process of collection of stamp duty and not to delay it, the State has decided to fix the liability to pay proper stamp duty on such financial institutions and the provision has taken care not to affect any right in such institutions to collect it from the other party.
It has also been held that Agreement relating to deposit of title deeds, where such deposit has been made by way of security for repayment of loan or an existing or future deed is compulsorily registrable.
State Bank of India, Mumbai and Others v. State of Maharashtra and others: AIR 2016(NOC) 448 (Bom.).
2. Deficit Stamp Duty – Market value of property: Stamp Act sec. 47A
Deficit stamp duty of market value of property is to be determined with reference to its character on date of execution of instrument and its potentiality as on that date. Collector proceeded to levy circle rate for residential plot to compute market value of property on mere assumption or that property was residential. Even inspection report subsequently called indicating that plot was utilised for residential purpose not based on any evidence order passed by collector in absence of any material on record, liable to set aside.
Smt. Vijaya Jain v. State of U.P. and Others. AIR 2016 (NOC) 449 (All.)
3. Reading down provision – Section does not suffer from any inherent limitation such as ambiguity, vagueness – Adoption of Rule of reading down – Not called for
Reading down is an interpretative device to save a statute or a provision thereof from the vice of unconstitutionality. It has a limited application. It cannot be taken recourse to when the legislative intent is explicit and interpretative ambiguity is absent. It is not a deliberate device to mutilate the meaning of the provision lest it should perish. Interpretation is an intellectual rescue operation by the judiciary to extricate a trapped meaning from a rubble of words.
However, it was held in instant case that as S. 56A of Kerala Co-operative Societies Act does not suffer from any inherent limitations, such as ambiguity, vagueness, as have been mentioned above, calling for adopting the interpretative device is not called for.
No enactment can be struck down only on ground that it is arbitrary or unreasonable. Some or other constitutional infirmity must be found before invalidating an Act.
Radhakrishna Kurup v. Nadakkal Service Co-operative Bank Ltd. & Ors. AIR 2016 (NOC) 453 (Ker.)
4. Suit for partition – Court fees – Has to be paid to extent of share claimed – Order directing to deposit court fee on the basis of valuation of entire property, not proper – Court Fees Act, 1977 sec 7 (iv)(b)
It is not in dispute that the suit was filed by the petitioner for partition by metes and bounds of his share. In a partition suit how the suit has to be valued has been already considered by the judgments of Madras High Court reported in AIR 1947 Mad. 273, AIR 1953 Pat 342, AIR 1979 Orissa 71, AIR 1962 Bombay 4 and AIR 1944 Privy Council 65, held that in a case of simple partition suit the plaintiff has to value his suit for purposes of pecuniary jurisdiction and Court fee to the extent of his share claimed out of the joint family property.
The decision of J & K High Court in Trilok Nath Lotha v. Jawahir Lal Kotha & Ors. 1988 KLJ 600 was relied.
Pt. Tara Chand v. Deepak & Others. AIR 2016 Jammu and Kashmir 95
5. Appeal – Against consent decree – Maintainability – Transfer of property during pendency of suit – Sale deed would only convey to the extent of title of vendor – Transferee pendent lite can exercise all rights of transferor – Can seek equitable partition
The position of a person on whom any interest has devolved on account of a transfer during the pendency of any suit or a proceeding is somewhat similar to the position of an heir or a legatee of a party who dies during the pendency of a suit or a proceeding, or an official receiver who takes over the assets of such a party on his insolvency. When a party to a decree dies, leaving some heirs, in the final decree proceedings, shares may be allotted to such heirs. Similarly, in the case of transferee pendente lite, if there is no dispute, final decree Court can proceed to make allotment of the properties in an equitable manner instead of rejecting their claim for such equitable partition on the ground that they have no locus standi. A transferee from a party of a property which is the subject matter of partition can exercise all the rights of the transferor. There is no dispute that a party can ask for an equitable partition. A transferee from him, therefore, can also seek for an equitable partition, even if the transfer is during the pendency of the suit. Such a construction of section 54 of the Code of Civil Procedure advances the cause of justice.
Syed Basheer Malik and Anr v. Smt. Jameeela Begum and Ors. AIR 2016 (NOC) 395 (Kar.)
6. Compensation – Victim – Definition of – Should also include child born out of illegal act of sexual abuse with minor
A definition of victim in para 2(d) of U.P. Victim Compensation Scheme should also include the child born out of illegal act of sexual abuse with minor. The new born child is victim in the sense that she/he is forced to live a life of shame and stigma without his/her fault. She/he is brought in this world destined to suffer because while father refuse to lend his name to child, mother abandons her/him for social reasons. Injury to reputation is to violation of right to live with dignity. The child is victim of circumstances. She/he definitely suffer injury of being left the world to fend for himself without any support.
“A” through her Father “F” v. State of U.P through Prin. Secy., Med. & Health Ser. & Ors. AIR 2016 (NOC) 396 (All.)
7. Partnership – Proceeding by unregistered firm –Maintainability. Partnership Act of 1932, S. 69
Bar under S. 69 of the Partnership Act would extended to any proceedings before the court. If the proceeding are not before a court bar under S. 69 would not be applicable.
Bar under S.69 of the partnership Act does not apply to an application filed under S. 11 of the Act (26 of 1996) or to the arbitration proceeding itself since application for appointment of arbitrator is not made to court but Chief justice or his designate, bar under S. 69 of the Partnership Act (1932) would not applicable.
Dattatray N. Sawant and Another v. Nitida A. Mehta and Others. AIR 2016 (NOC) 403 (Bom.)
8. Modification of date of birth: Evidence Act sec. 35
Date of birth is carried in books of school for whole length of period of schooling. It cannot be modified after entry is brought in CBSE records. Modification in date of birth in CBSE records is restricted only in clerical mistakes. Date of birth cannot be modified only to make it congruent with date of birth as entered in birth certificate.
Mandeep Singh v. Central Board of Secondary Education and Others. AIR 2016 (NOC) 404 (P. & H.)
9. Wakf property – Determination of dispute: Wakf Act, 1995 Sections 83, 65 & 51
As per provisions of Act, any dispute relating to wakf property must be determined by Wakf Tribunal. Therefore where questioned of the bona fides of the Board in taking over direct management of the property and retaining management despite lapse of five years, not transferring administration thereof to the first petitioner, entering into a development agreement with the fifth respondent, and transferring right etc. Were decision to take over direct management of the property (under section 65 of the Act) and the decision to develop the property followed by execution of a development agreement (ostensibly under section 51 of the Act) must be construed as included in “an order made under this Act” and, therefore, amenable to challenge before the Waqf Tribunal. It has to be remembered that the jurisdiction of a writ Court under Article 226 is an extraordinary jurisdiction, which should be exercised sparingly and in fit cases where the party aggrieved has no other remedy available to him.
Khoja Sunnat Jamat and Another v. Board of Waqf, West Bengal and Others. AIR 2016 (NOC) 405 (Cal.)
10. Election – Second order for recounting of votes – Is not permissible in event first recounting is already done and election results are announced. Karnataka Panchayat Raj Act and Rules
In terms of provisions contained in sub-rule (6) of Rule 71 of Karnataka Panchayat Raj (Conduct of Election) Rules, 1993, once total number of votes polled by each candidate had been announced as per sub-rule (1) or sub-rule (5), the Returning Officer shall complete and sign the result sheet in Form 31 and no application for recount shall be entertained thereafter. Sub-rule (2) provides that a candidate or his agent may apply in writing to the Returning Officer to recount the votes either wholly or in part stating the grounds on which demand for recount is made. If such an application is made, as per sub-rule 3, the Returning Officer shall decide the matter and may allow the application in whole or in part or might reject it in toto, if it was a frivolous one. As per sub-rule (5), if the Returning Officer decides to allow the recount of the votes, then the recount of votes has to be done in accordance with the rules applicable and he is required to amend the result sheet in Form 31 to the extent necessary after such recount and announce the amendment so made by him. Once such total number of votes polled by each candidate has been announced in terms of sub-rule (5), the Returning Officer shall complete and sign the result sheet in Form 31 and no application for recount shall be entertained thereafter. Therefore, there is no provision under the Act and Rules for another recount. Indeed, such a process is prohibited.
T.J. Prasanna Kumar v. Returning Officer, Chikamangaluru and Another. AIR 2016 (NOC) 441 (Kar.)
11. Enlargement of estate – Right of Hindu widow – Right to maintenance out of profits of property of husband after his death thus would not enlarge into absolute right in her favour
Section 14 of the Hindu Succession Act will not have any application to a case where a widow had no rights whatsoever in the properties except a right of maintenance out of the proceeds of the property. To come within the scope of the said Section of the Hindu Succession Act, the Hindu female must not only be possessed of the property but she must have acquired the property either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or her own skill or exertion or by purchase or by prescription and a mere right of maintenance without acquisition of some right in the property is not sufficient to attract the said Section.
Where widow had not acquired any right in the property by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or her own skill or exertion or by purchase or by prescription. As such, it cannot be held that she had limited interest in the property within the meaning of Section 14 of the Hindu Succession Act and since the right to property, but only a right against the property, her right to maintenance out of profits of property of husband after his death would not become absolute right by virtue of S. 14(1).
Vasudevan v. Devakay and others. AIR 2016 (NOC) 442 (Ker.)