Do not burn the house to catch the rat.

Law Protects - Bonafide Purchasers at Court Auction

It is an established principle of law that in a third party auction-purchaser’s interest in the auctioned property continues to be protected notwithstanding that the underlying decree is subsequently set aside or otherwise. Law makes a clear distinction between a stranger who is a bona fide purchaser of the property at an auction-sale and a decree-holder purchaser at a court auction. The strangers to the decree are afforded protection by the court because they are not connected with the decree. Unless the protection is extended to them the court sales would not fetch market value or fair price of the property.

Date: 14/Jul/2015 Click Here To Read Full Article

Usufructuary mortgage - Essentials

In a usufructuary mortgage, the mortgagor authorizes the mortgagee to receive the rents and profits accruing from the property in order to pay off the loan which is to be substantiated by producing documentary evidence. Based on the recitals in the mortgage deed the courts can infer that there was an intention on the part of the parties to allow the mortgagee to appropriate the rents and profits accruing out of the mortgaged property

Date: 14/Jul/2015 Click Here To Read Full Article

Legal Sagacity vs. Proliferation & prolongation of Litigation

In a winding up petition, the Company Judge has no alternative but to proceed for Winding up of the Respondent Company since it had failed to discharge the admitted debt even after the service of the afore-noted statutory notice. Before being inexplicably and unjustifiably considerate the court should consider that kind of leniency that results in proliferation and prolongation of litigation, which approach has led to an almost insurmountable pendency of litigation. This kind of evaluation becomes necessary even when a junior Advocate having displayed legal sagacity in getting the winding-up of the Company postponed and avoided the publication in the Winding-up petition by praying for and obtaining leave to pay the debt in installments. Had he not done so, the Respondent would have had to pay the entire debit at once or face certain commercial death as a consequence publication/ citation of Winding-up petition.

Date: 22/Aug/2015 Click Here To Read Full Article

Common Intention

To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:- (i) there was common intention on the part of several persons to commit a particular crime and (ii) the crime was actually committed by them in furtherance of that common intention. The essence of liability under Section 34 IPC is simultaneous conscious mind of persons participating in the criminal action to bring about a particular result. Minds regarding the sharing of common intention gets satisfied when an overt act is established qua each of the accused. Common intention implies pre-arranged plan and acting in concert pursuant to the pre-arranged plan. Common intention is an intention to commit the crime actually committed and each accused person can be convicted of that crime, only if he has participated in that common intention.

Date: 02/Nov/2015 Click Here To Read Full Article

Writ Jurisdiction - Need to look back?

In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

Date: 10/Jul/2015 Click Here To Read Full Article

Child Custody - Welfare adjudication

Welfare of the child is the paramount consideration. A constitutional court exercising summary jurisdiction for the issuance of a writ of habeas corpus may conduct an elaborate inquiry into the welfare of the child whose custody is claimed and a Guardian Court (if it has jurisdiction) may conduct a summary inquiry into the welfare of the child, depending upon the facts of the case.

Date: 10/Jul/2015 Click Here To Read Full Article

The Predicament of Family Courts - Suggestions for Removal

FAMILY COURTS have been established for adopting and facilitating the conciliation procedure and to deal with family disputes in a speedy and expeditious manner. A three-Judge Bench in K.A. Abdul Jaleel v. T.A. Shahida (2003) 4 SCC 166, while highlighting on the purpose of bringing in the Family Courts Act by the legislature, opined thus:-

Date: 07/Jul/2015 Click Here To Read Full Article

Principles of Construction - Noscitur A Sociis

NOSCITUR A SOCIIS expression simply means that “the meaning of a word is to be judged by the company it keeps.” Gajendragadkar, J. explained the scope of the rule in State of Bombay v. Hospital Mazdoor Sabha [1960 (2) SCR 866] in the following words: (SCR pp. 873-74)

Date: 07/Jul/2015 Click Here To Read Full Article