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1. Benami – Mere supply of
money by husband to his wife for acquiring property in her own name does not
amount to benami – Benami Transactions Act, sec. 4
The issue for determination
was that whether the property purchased by husband in the name of his wife was
a benami transaction. In order to find out whether a particular transaction is
really a benami transaction, a court is required to bear in mind the following
well-settled principles:
(1) The burden of showing
that a transfer is a benami transaction lies on the person who asserts that it
is such a transaction;
(2) if it is proved that the
purchase money came from a person other than the person in whose favour the
property is transferred, the purchase is prima facie assumed to be for the
benefit of the person who supplied the purchase money, unless there is
evidence to the contrary;
(3) the true character of the
transaction is governed by the intention of the person who has contributed the
purchase money and;
(4) the question as to what
his intention was has to be decided on the basis of the surrounding
circumstances, the relationship of the parties, the motives governing their
action in bringing about the transaction and their subsequent conduct, etc. (Binapani
Paul vs. Pratima Ghosh and Ors. [2007 (6) SCC 100).
The Hon’ble Court observed
that in the Indian society, if a husband supplies the consideration money for
acquiring property in the name of his wife, such fact does not necessarily
implies benami; source of money is, no doubt, an important factor but not the
decisive one. The intention of the supplier of the consideration money is the
vital fact to be proved by the party who asserts benami.
The position of law that mere
supply of money by the husband in the absence of any motive does not amount to
benami.
Rajendra Prasad Shewda vs.
Kishori Debi Joshi & Ors. AIR 2009 (NOC) 315 (Cal.)
2. Co-operative Society –
Right to Information Act – S. 2(h)(d)(i)
Merely because registrar of
Co-operative society has got control over co-operative bank though it is not
substantially financed by government, it cannot be said that co-operative bank
is public authority within definition of sec. 2(h)(d)(i) of Act.
The Bidar District Cent.
Co-op. Bank Ltd. vs. The Karnataka Information Commissioner & Anr AIR 2009 (NOC)
1049 (Kar) = 2009 (1) AIR Kar R. 481
3. Family Arrangement –
Registration Act
Family arrangement can be
oral but if it is to be recorded it should be by way of memorandum. If it is
in evidence of relinquishment of any immovable property it would require
registration within the meaning of sec. 17 of Registration Act.
D.V. Narayana Sah & ors vs.
A.G. Nagammal & Ors AIR 2009 (NOC) 1061 (Mad).
4. Natural Justice – Basic
rule of law and natural justice requires recording of reasons in support of the
order
The Petitioner challenged the
order of Respondent Authority setting aside order of allotment of Ration Shop
in her favour and allotment of said Ration Shop in favour of third party.
The basic rule of law and
natural justice require recording of reasons in support of the order. The
order has to be self explanatory and should not keep the higher court guessing
for reasons. Reasons provide live link between conclusion and evidence. That
vital link is the safeguard against the arbitrariness, passion and prejudice.
The reason is a manifestation of mind of the adjudicator. It is a toll for
judging the validity of the order under challenge. It gives opportunity to the
court to see whether or not the adjudicator has proceeded on the relevant
material and evidence.
In the instant case, no
reasons were available on record as to on what basis the Respondent authority
had come to the conclusion that the third party fulfils all the conditions.
The impugned order was passed
in a most casual manner.
Kum Nirmala Tikana Giripo vs.
State of Maharashtra & Ors 2009 Vol. 111(1) Bom L.R. 0113
5. Precedent – Conflicting
judgements of Co-ordinate Benches – Court to consider judgement which in its
opinion is better in point of law – Constitution of India Art 141
The Hon’ble Court held that
on the issue where there were conflicting decision of Co-ordinate Benches of
the Supreme Court, under such circumstances it was open to the Court to
consider the judgment which in its opinion is the better in point of law
irrespective of when the judgments were pronounced.
Gulabhai w/o Gopaldas Gujrati
vs. Union of India & ors AIR (2009) (NOC) 763 (Bom) (2008) (6) AIR Bom R 857
6. Precedent – Failure of
revenue to appeal in the case of one assessee not open to it to question
decision in the case of another assessee
If an earlier order is not
appealed against by the Revenue and had attained finality it is not open to
the Revenue to accept the judgment on the same question in the case of one
assessee and question its correctness in the case of other assessee.
Discrimination between two sets of assessees in respect of a common order is
not permissible.
State of Tamil Nadu vs.
Vaikundam Rubber Co. Ltd & Anr (2008) 18 VST 93 (Mad)
7. Recovery of interest –
Debtor cannot be penalized with interest on amount that remained unpaid due to
accounting errors – Contract Act Sec 72
The petitioner company was
sanctioned a loan of Rs. 54 lakhs for setting modern roller flour mill in
1987. The petitioner paid the entire amount and thereafter requested for being
granted a non dues certificate. After two months, the petitioner was informed
that an amount of Rs. 1,54,966.95 is still due. The Hon’ble Court observed
that more than a decade and a half back some accounting errors were committed
by the Corporation of small amount which all put together on recasting the
account for the 20 years with accrued interest was Rs.1.50 lacs. In other
words, due to Corpn accounting mistake of about Rs.29,000/- made more than a
decade and a half back petitioner must suffer and pay over Rs.1.50 lakhs as
compensation to the Corpn. for Corporation’s own mistake.
The Court observed that under
what law can the petitioner is made to suffer for a mistake committed not by
him but by the corporation itself. This, action is wholly arbitrary,
unreasonable and unjust enrichment on the part of the corporation and cannot
be permitted. It is settled principle of law a man cannot be permitted to take
undue and unfair advantage of his own wrong to gain favorable interpretation
of law. It is sound principle that he should prevent a thing from being done
shall not avail himself of the non performance he has occasioned. To put it
differently “a wrong doers ought not’ to be permitted to make a profit out of
his own wrong ……
Radha Flour Mills P. Ltd. &
Anr vs. Bihar State Financial Corpn & Ors. AIR 2009 Patna 12
8. Stamp Duty – Letter
containing terms and conditions for sale is an instrument u/s. 2(14) of Stamp
Act, 1899.
When the vital and
fundamental terms of an agreement for sale of immovable property were effected
through an oral agreement, the written agreement incorporating the terms and
conditions of the oral agreement would be deemed to be a formal agreement
only.
The right and liability
having been created or purported to have been transferred and extended or
created, the documents in question come within the meaning of “instrument” as
defined in sec. 2(14) of the Stamp Act, 1899.
Gopi Krishna Trivedi vs.
Sudama Prasad Ojha (2008) 9 SCC 401
9. Writ Petition filed
second time suppressing fact
Writ Petition filed second
time suppressing dismissal of earlier and exactly similar petition. It amounts
to abuse of process of court and fraud committed on court. Litigant not
entitled to relief sought, petition dismissed with exemplary cost.
Balaji Recreation
Association, Bangalore vs. State of Karnataka & Ors. AIR 2009 (NOC) 933 (Kar)
= 2009 (1) AIR kar R. 493
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