Relevant paragraphs: 26. ….the documents of which registration is required by Transfer of Property Act, 1882, shall be compulsorily required to be registered otherwise such documents shall not affect any immovable property. So, when once the transaction has been reduced to a form of document viz., “exchange deed”, then registration is compulsory. Such documents are not admissible as the evidence of any transaction affecting any immovable property comprised therein.
40. Marking the document in evidence is one thing and the proof, admissibility, evidentiary value of the document and acting upon it is other thing. Simply, because the document is marked as an exhibit without there being any objection by the opposite party, when it is produced in examination-in-chief that will not enure benefit to the party to claim declaration of title in a immovable property or extinguishing title of opposite party in immovable property, when admittedly the immovable property which were exchanged are worth more than Rs.100/- and requires registration.
42. The learned Single Judge of this Court in another decision reported in ILR 2003 KAR 3716 in the case of Krishna vs Sanjeev has considered the difference between “marking”, “admitting the documents” and “proof of documents during trial of the suit” as under:- “11. Marking of a document is a ministerial act whereas, admitting a document in evidence is a judicial act. Before a document is let in evidence, there should be a judicial determination of question wherever it can be admitted in evidence or not. In other words, the Court admitting a document must have applied its mind consciously to the question whether the document was admissible or not.
44. Therefore, simply because Ex.P.1 is marked in the examination-in-chief without objection by opposite party, at the time of marking it, the said document cannot be used and acted upon as a evidence of title to grant declaration of title, as it being not sufficiently stamped and not registered. The said document also cannot be looked into for collateral purpose, in view of proviso to Section 49 of the Registration Act, 1908 and Section 118 of the Transfer of Property Act, 1882.
Relevant Paragraphs: 17. The facts of the present case are not on par with those in Bir Singh Vs. Mukesh Kumar reported in (2019) 4 SCC 197, however, pivots on a different issue. The trial Court on consideration of the material omissions and contradictions in the version of the complainant regarding period of transaction as well as amount due not matching the cheque amount involved, acquitted the accused. As rightly submitted by learned counsel for the accused, the standard of proof for upsetting the presumption in favour of complainant is preponderance of probabilities as held in Vijay Vs. Lakshman & Ors. 2013 (3) SCC 86 . In order to do so, accused need not step into the witness box to prove that cheque issued was not in discharge of a legally recoverable debt or liability under Section 138 of the NI Act. He can very well establish the same by setting up a defence by preponderance of probabilities to upset the rebuttable presumption available to complainant as per Rangappa vs. MohanRangappa2010 (11) SCC 441, case when a probable defence is set up by accused, burden of explaining the same is on the complainant and standard of proof applicable for evaluating such explanation would be proved beyond reasonable doubt.
18. On over all consideration of the entire evidence on record, omissions and contradictions with regard to the period of transaction and amount involved coupled with failure to produce books of accounts by the complainant, who is a businessman and the transaction being a part of his business, the Trial Court, in my opinion, has rightly come to the conclusion that the complainant has failed to prove that an offence under Section 138 of the N.I. Act was committed by the accused and therefore, acquittal of the accused for the offence is justified. Hence, there is no merit in the appeal. Accordingly, it is dismissed.
Relevant paragraphs: 8 &9. There can be no two opinions that even an adult younger brother or grown up son is entitled to claim compensation under the head of loss of dependency subject to condition that they demonstrate that they were indeed dependant on the income of the deceased. The point that arises for consideration in this appeal is whether the appellant has made out a case for grant of compensation under the head of loss of dependency? In the absence of any evidence to the contrary, we are of the considered opinion that the reasoning and conclusion of the Tribunal does not call for any interference.
13. In the ruling of National Insurance Company Limited, the Apex Court entered upon the facts of the case and after appreciating the same, held in paragraph 15 as under: “15. It is thus settled by now that the legal representatives of the deceased have a right to apply for compensation. Having said that, it must necessarily follow that even the major married and earning sons of the deceased being legal representatives have a rightto apply for compensation and it would be the bounden duty of the Tribunal to consider the application irrespective of the fact whether the concerned legal representative was fully dependant on the deceased and not to limit the claim towards conventional heads only.
14. As noted by the Tribunal and as concluded by us, we do not find any material which demonstrates such a fact in the present case. In the absence of evidence demonstrating that the adult was dependant on the income of the deceased or that the deceased was caring for the welfare and well being of the claimant, the claimant would not be entitled to claim compensation under the head of loss of dependency.
Relevant paragraphs: Question referred by the Hon’ble single judge to larger bench. “Whether in a case for offence punishable under Section 138 of the Negotiable Instruments Act, 1881, the Court of Magistrate exercising its power under the second proviso to Section 143 of the Negotiable Instruments Act, if it appears to the said Court that it is undesirable to try the case summarily, after recording reasons, can proceed to try/hear the said case as a warrant case?”. The reference was made in view of the conflicting views expressed by the coordinate Benches on the above issue in M/S. Mesh Trans Gears Private Limited, Bangalore –vs- Dr. R. Parvathareddy – ILR 2014 KAR 5237 and Mahendra Kumar –vs- Gangamma.B – ILR 2018 KAR 4761, by relying upon a decision of another learned Single Judge in M/S. Leo Granex –vs- M/S. Pavillion Granites & others – ILR 2009 KAR 4062.
16. There is a substantial difference between the procedure prescribed by the provisions of Cr.P.C for trial of a ‘warrant case’ and trial of a ‘summons case’. In case of trial of a warrant case, under the provisions of Section 245 of Cr.P.C, the learned Magistrate is bound to consider the plea of discharge for the offence alleged against the accused. Section 246 of Cr.P.C, provides for framing of charge. Section 244 contemplates recording of evidence before charge. However, under the procedure prescribed for trial of a summons case, there is no requirement of framing of charge. Thus, between the two, the procedure applicable to a summons case is less cumbersome and expeditious, as compared to the procedure applicable to a warrant case. A trial in a summons case can be concluded more expeditiously than a trial of warrant case, as in the case of trial of a warrant case, a charge is required to be framed which is not at all the requirement in case of a summons case.
21. If the learned Magistrates are allowed to convert the complaints filed alleging an offence punishable under Section 138 of the said Act of 1881 into a warrant triable case, the consequence will be disastrous as the trial will be prolonged. Lot of time will have to be devoted for hearing of discharge application and for framing of charge. It will amount to defeating the very object of introducing Chapter XVII containing Sections 138 to 142 in the said Act of 1881 with effect from 1st April 1989.
22. Therefore, for the foregoing reasons, we answer the question formulated by the learned Single Judge in the order dated 29th June 2020 in the negative. It is held that the power of the learned Magistrate to convert the trial of a complaint under Section 138 of the said Act of 1881 under the second proviso to sub-section (1) of Section 143 is confined only to converting the case into a summons triable case.
Relevant Paragraphs: 11. The third contention which has been raised by the Insurance Company is that the vehicle did not have a permit to ferry passengers and/or that it did not have a fitness certificate. This contention cannot be raised by the Insurance Company after having issued the insurance policy, if at all the vehicle did not have a fitness certificate, the insurance policy itself ought not to have been issued and if the fitness certificate would expire during the period the insurance policy is in operation, the Insurance Company ought to have restricted the operation of the insurance policy till the time, the fitness was valid. Thus, once the insurance policy has been issued, the Insurance Company cannot deny its liability on the ground that there is no fitness certificate. As regards the aspect of there being no permit, a perusal of the document indicate that there is no evidence, which has been laid by the Insurance Company nor any stand taken in this regard. Hence the said contention cannot be taken up during the course of this appeal. Hence, this contention is also rejected.
Relevant paragraph: 20. Further, the Full Bench of this Court in the case of New India Assurance Company Limited v. Yellavva W/o Yamanappa Dharanakeri and another [2020 (2) AKR 484 was pleased to lay down the guidelines regarding ‘pay and recovery’. It is the law laid down that even in case of Insurance Companies are having regard to Section 149(1) R/w Section 149(7) of the M.V.Act whenever a case falls under Section 149(2)(a) of the M.V.Act and the same is successfully established or proved by the insurer, but, it is the duty of the insurer to satisfy the judgments and awards against person insured in respect of third party risks even in case of infraction is proved as defence taken by the Insurance Companies. Therefore, in the present case also the lorry bearing Reg.No.KA-28/A- 5775 was not having valid fitness certificate as on the date of accident and certainly it can be said that it is an infraction but indisputably the said lorry is insured with the appellant/Insurance Company. Therefore, in view of this the appellant/Insurance Company shall pay first the compensation and satisfy the claim then recover it from the owner of the said lorry.
Relevant paragraphs: 12. When any appointment is made by way of direct recruitment, either by way of competitive examination or selection, the list of candidates should be arranged in the order of merit and they should be selected in that order. It does not contemplate that the candidates belonging to the reserved category should be excluded from the order of merit. Thus, in case where a candidate belongs to the reserved category, performs so well that he finds a place in the general merit category, he has to be placed in the general merit category and another candidate has to be chosen as against the post reserved for that particular category.
13, 14 &15. The reservation is envisaged under the Constitution of India to eradicate the disadvantage suffered by candidates belonging to socially and educationally backward classes. It is permissible for the State, in view of Articles 14, 15, 16 and 38 of the Constitution of India to provide for reservation. The reservations are a mode to achieve equality of opportunity guaranteed under Article 16(1) of the Constitution of India and caste is one of the criteria to determine the social and educational backwardness in our country.The Philosophy is upliftment of that caste group, who are subjected to social discrimination, by providing them reservation. If a candidate amongst them who are so capable to compete with General Merit candidates, he should not be considered under the reserved category, but selected under General Merit category and the benefit of reservation should go to another candidate from the reserved category.
19. The appointment of respondent No.4 has to be considered as against the appointment made in the general merit category and the appointment of the petitioner has to be considered as against the reserved category for a Scheduled Tribe. The selection of respondent No.5 is illegal.
Relevant Paragraphs: 7 & 8. The deceased was aged 17 years at the time of the accident. According to the appellants, the deceased was a student and was also doing milk vending business and he was an earning member of his family. The..Tribunal concluded that the deceased was a child of 17 years and there was no evidence to show that he was engaged in milk vending and accordingly considered him as a person without income.
10. Section 2 (i) and (ii) of the Child and Adolescent Labour (Prohibition and Regulation) Act, 1986 (for short “the Act”) defines as follows: “(i) “adolescent” means a person who has completed his fourteenth year of age abut has not completed his eighteenth year;“(ii) “child” means a person who has not completed his fourteenth year of age or such age as may be specified in the Right of Children to Free and Compulsory Education Act, 2009 (35 of 2009), whichever is more.”
11. Section 3 of the Act prohibits employment of a child in certain occupations and processes. The said Act does not prohibit the adolescent of 17 years to involve in a milk vending business. The deceased and his family are from rural area and it is common for a person of 17 years to be involved in milk vending or similar occupations. The Tribunal has completely lost sight of this fact and the reasoning is contrary to and in the teeth of the statutory provisions.
15. The deceased was aged 17 years at the time of the accident. As per the decision of the Hon’ble Apex Court in Sarla Verma and others v. Delhi Transport Corporation and another reported in 2009 ACJ 1298, the applicable multiplier is ‘18’ that needs to be applied.
58(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
Mathai Mathai v. Joseph Mary, (2015) 5 SCC 622. Paragraph 20.2 Simple mortgage is a mortgage where property is mortgaged without delivering possession of the mortgaged property to the mortgagee.
58. (c)Mortgage by conditional sale.—Where the mortgagor ostensibly sells the mortgaged property—on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or 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 and the mortgagee, a mortgagee 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.
Ganpati Babji Alamwar v. Digambarrao Venkatrao Bhadke, (2019) 8 SCC 651. Paragraph 10. Whether an agreement is a mortgage by conditional sale or sale with an option for repurchase is a vexed question to be considered in the facts of each case. The essentials of an agreement, to qualify as a mortgage by conditional sale, can succinctly be summarised. An ostensible sale with transfer of possession and ownership, but containing a clause for reconveyance in accordance with Section 58(c) of the 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 transaction value, along with 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, along with the recitals in the agreement, intention of the parties, coupled with other attendant circumstances, considered in a holistic manner. The language used in the agreement may not always be conclusive.
58 (d) Usufructuary mortgage.—Where the mortgagor delivers possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
Mathai Mathai v. Joseph Mary, (2015) 5 SCC 622. Paragraph 20.2 The mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee and further authorises him to retain such possession until payment of the mortgage money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest, or in payment of the mortgage money, or partly in lieu of interest or partly in payment of the mortgage money.
Narpatchand A. Bhandari v. Shantilal Moolshankar Jani, (1993) 3 SCC 351. Paragraph 7. A usufructuary mortgagee is a transfer of a right to possession of the mortgaged property and the right to receive the rents and profits accruing from such property. Tenanted premises, if is mortgaged by the landlord by way of usufructuary mortgage, the usufructuary mortgagee thereunder would become entitled to receive the rents and profits accruing from such property in his own right and on his own account
58(e) English mortgage.—Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers 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.
Raj Kishore v. Prem Singh, (2011) 1 SCC 657 . Paragraph 21. A transaction to constitute an English mortgage the following essential conditions must be satisfied: (1) The mortgagor must bind himself to repay the mortgage money on a certain date. (2) The property mortgaged should be transferred absolutely to the mortgagee. (3) Such absolute transfer should be made subject to the proviso that the mortgagee shall reconvey the property to the mortgagor upon payment by him of the mortgage money on the date the mortgagor binds himself to pay the same. 22. It is only in cases where all the three requirements indicated above are satisfied that the transaction constitutes an English mortgage and not otherwise.
58(f) Mortgage by deposit of title-deeds.—Where a person in any of the following towns, namely, the towns of Calcutta, Madras and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
State of Haryana v. Narvir Singh, (2014) 1 SCC 105. Paragraph 13. Mortgage by deposit of title deeds is the actual handing over by a borrower to the lender of documents of title to immovable property with the intention that those documents shall constitute a security which will enable the creditor ultimately to recover the money which he has lent. 14.2. No instrument is required to be drawn for this purpose. However, the parties may choose to have a memorandum prepared only showing deposit of the title deeds. In such a case also registration is not required. But in a case in which the memorandum recorded in writing creates rights, liabilities or extinguishes those, the same requires registration.
58(g) Anomalous mortgage.—A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.
Sardar Govindrao Mahadik v. Devi Sahai, (1982) 1 SCC 237. (as an example) Paragraph 2. Even though the mortgage was mortgage with possession, it was not a usufructuory mortgage but an anomalous mortgage in that the mortgagor had agreed to pay interest at the rate of 12 per cent and the mortgagee was liable to account for the income of the property earned as rent and if the mortgagee himself occupied the same he was bound to account for the rent at the rate of Rs 515 per annum.
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