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About Kishan Dutt Retd Judge

      RESUME OF

SRI. KISHAN DUTT KALASKAR,

(Former Judge and Advocate, Bengaluru)

REQUEST TO INCLUDE MY NAME ON THE LEGAL ADVISOR

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1.NAME:                       KISHAN DUTT KALASKAR

2.FATHER’S NAME:      LATE SRI. GYANAPPA KALASKAR

3. DATE OF BIRTH:       12.03.1961   ( 55 YEARS )

3A. EDUCATION       :   B.Com (First Class from Osmania) LL.B (Gulbarga)

4. EXPERIENCE:  Junior and Senior Civil Judge & Metropolitan    Magistrate .  ( Served for 20 Years, From 1992 To 2012 )

A: Related Spl Exp:  Decided several types of civil, criminal, land acquisition, cheque bounce, motor vehicles and other varities fo cases.

B) Worked as Head of the Legal Cell, Revenue, Home etc., in Govt. of Karnataka

C) Worked as Central Project Officer and in-charge of entire Karnataka, to look after computerization of High Court of Karnataka and Sub-ordinate Courts

D) Worked as in-charge Deputy Secretary, High Court of Karnataka Legal Services Committee and presided over High Court Lok Adalats Daily from 5 p.m. to 7.30 p.m. along with High Court Judges.

5. EXPRERIENCE:  A)         7  YEARS EXPERIENCE AS ADVOCATE

                                    B)         20  YEARS EXPERIENCE AS JUDICIAL OFFICER

                                                         C)                Legal Advisor, Enquiry Officer and Advocate since July 2012

6. EXTRA TALENTS:   

1. Worked on the Editorial Board of Karnataka Law Journal

2. Presently on the Editorial Board of www.scconline.com Reputed Law Journal

3. On  the Enquiry Panel of   BESCOM  (Bangalore Electricity Supply Company)

4. On  the Enquiry Panel of   Wonder La, Bangalore 

5. On  the Enquiry Panel of Shakti Precision Components (India), Bangalore-48

6. On  the Enquiry Panel of  KSTDC (Karnataka State Tourism Department Corporation) 

 

Address for Communication:                                                       

Kishan Dutt Kalaskar

No.74, First floor,

6th cross, Malleswaram, BENGALURU - 3

Mob: 9686971935, Land: 080-23461189

E MAIL:  kalaskarnetra@gmail.com

Education

LLB (1985)

P.S.R. Law College, Turangi, Kakinada

Work Experience

1992 - 2012

High Court of Karnataka as Judicial Officer in different capacities

Worked as Junior Civil Judge

Worked as Senior Civil Judge

Worked as Head of the Legal Cell, Revenue Department, Govt of Karnataka

Worked as Incharge Central Project Officer (Computers) High Court of Karnataka

1992 - 2012

High Court of Karnataka as Judicial Officer in different capacities

Worked as Junior Civil Judge

Worked as Senior Civil Judge

Worked as Head of the Legal Cell, Revenue Department, Govt of Karnataka

Worked as Incharge Central Project Officer (Computers) High Court of Karnataka

ROAR VIEW All

MUTUAL DIVORCE SECTION…

MUTUAL DIVORCE:  SECTION 13-B OF HINDU MARRIAGE ACT

CONSEQUENCES OF BREACH OF MUTUAL DIVORCE TERMS

 

According to Section 13-B of the Hindu Marriage Act, the husband and wife must jointly file the petition in the Family Court with jurisdiction to grant the divorce by mutual consent. The terms of getting a divorce by mutual consent and filing for divorce are specifically mentioned in the statute.

 

Regardless of whether the marriage was consummated before or after the Marriage Laws (Amendment) Act, 1976 (68 of 1976), both parties to the marriage may jointly petition the district court for the dissolution of the marriage by a decree of divorce on the grounds that they have been living apart for at least one year, that they are unable to cohabit, and that they have mutually decided that the marriage should end.

 

If the petition is not withdrawn in the interim, the court shall issue a divorce decree upon the motion of either party made not earlier than six months after the date of the presentation of the petition referred to in subsection (1) and not later than eighteen months after the said date, if the petition was not withdrawn in that time.

 

The points to be included in the Mutual Divorce Petition:



  1. Due to their inability to come to an understanding and their temperamental differences, the parties have entirely cut connections with one another. The parties have already met several times with the proper involvement of common relatives, but no productive outcomes could be produced.
  2. The parties have been living apart since they last cohabited as husband and wife more than a year ago.
  3. The marriage has now irretrievably and irreversibly fallen apart.
  4. The parties have willingly resolved their differences through an amicable settlement and chosen to part ways.
  5. It has been mutually agreed upon by the parties that any complaint, case, or application that is pending before a competent court of law or other competent authority that is unknown to, or has escaped the parties' notice, must also be withdrawn by them.
  6. Nothing is still owed in relation to any items or Stidhan or maintenance—past, present, or future.
  7. One-time, complete, and binding settlement or agreement.
  8. The parties did not obtain each other's consent to file the current petition via the use of coercion, fraud, inducement, or any other unauthorized means.
  9. There has been no collaboration between the parties in presenting the petition.

 

Jurisdiction of the Court under whom the Mutual Divorce Petition is filed:

 

Section 19:Court to which petition shall be presented. —Every petition under this Act shall be presented to the district court within the local limits of whose ordinary original civil jurisdiction—

(i) the marriage was solemnised, or

(ii) the respondent, at the time of the presentation of the petition, resides, or

(iii)the parties to the marriage last resided together, or

(iiia) in case the wife is the petitioner, where she is residing on the date of presentation of the petition, or]

(iv) the petitioner is residing at the time of the presentation of the petition, in a case where the respondent is, at that time, residing outside the territories to which this Act extends, or has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him if he were alive.]

 

Stages Under Mutual Divorce Petition:

Stage 1: Before filing the divorce petition, there must be a one-year separation period. However, in cases of extreme hardship, the court may grant a suspension of this time by filing the proper forms.

 

Step 2: Preparation of a settlement agreement between husband and wife.

 

Step 3: At the court stage, filing a joint petition in accordance with Section 13 B of the Hindu

Marriage Act and including affidavits from both the husband and the wife.

 

Step 4: First Motion statement is recorded.

 

Step 5: Cooling Off Period of 6 Months 

 

Step 6: Second Motion statement is recorded

 

Step 7: Divorce Decree granted

 

Re

 

Reference:

1.      https://www.legalserviceindia.com/legal/article-7424-mutual-consent-divorce.html

2.      https://lawrato.com/indian-kanoon/divorce-law/divorce-by-mutual-consent-in-india-130#:~:text=Divorce%20by%20Mutual%20Consent%20is%20given%20under%20Section%2032B.,been%20able%20to%20live%20together.

3.      https://blog.ipleaders.in/mutual-consent-divorce/

4.      https://www.legalserviceindia.com/legal/article-1594-divorce-by-mutual-consent.html

5.      https://vakilsearch.com/blog/things-to-know-before-filing-mutual-consent-on-divorce/

 

 

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How to select a Lawyer…

How to select a Lawyer and Change of a Lawyer

Introduction: The Indian legal profession is one of the broadest and most dignified professions globally. Current records indicate that there are around 1.4 million enrolled advocates worldwide. However, this data cannot assist enough when finding a good lawyer. There are multiple conception-based reasons for the number of advocates available and the substantial scenario that persists. The Bar Council of India, in one of the statements, said that one-third of the profession is fake and, subsequently, commands real lawyers in the profession to stand on this issue. Though there is a shortage of lawyers in India as opposed to the number of lawsuits filed and pending, the necessity and demand are growing larger. There are numerous ways by which people connect with lawyers. A few include online research on legal services sites and references by friends and relatives. But, what clients must note while selecting a lawyer is inspecting some essential factors and educating themself. Here we have elaborated on some of the crucial traits you need to check and educate yourself on as a client to find a good lawyer.

 

Types of advocates and who are advocates and lawyers

In India, people generally deem lawyers and advocates the same. However, advocates are lawyers; not all lawyers are advocates or attorneys. An advocate has learned the law and has a license to practice law. The term advocate is prescribed and defined under Sec 2 (1) (a) of The Advocates Act, 1961. Thus, only advocates can fight in court on the client’s behalf. Furthermore, a qualified lawyer can help you counsel and advise you on legal issues you are stuck with and the documentation therein. They are drawing up legal papers and documents related to wills, divorces, contracts, real estate and mediating disputes.

 

Crucial points to remember while appointing a lawyer:

 

Identifying the legal issue

You must identify your legal issue correctly, especially in the case of civil lawsuits. Identifying your issue will help you get a specialist lawyer to help you better deal with the problem with the proper techniques to tackle and resolve the situation immediately. Suppose you are finding a defence lawyer to get disposed of a criminal charge. In that case, you must trust a specialist in the domain who can take up essential responsibilities on your behalf in the court proceedings. 

 

 

Consider the appropriate level of experience in similar cases 

It is impossible to hire a specialist lawyer for everyone but it is better if you go for a lawyer and an advocate with some experience. Whether your problem is severe or minor, the lawyer should understand the problem with the desire to give you the best possible legal advice and service, along with consultation with genuine intentions.

 

Assess the communication skills and professionalism of the lawyer 

These are the most crucial traits of a good lawyer. You can examine these skills by how they talk with you, their time for a response, and their professionalism. Professionalism is one of the ideal qualities of a good lawyer with whom you can share confidential information and documents. 

 

Conduct thorough research on their record 

A good lawyer always retains a fair identity and a transparent background. You can check whether the lawyer you are opting for has any criticisms of misconduct, faulty and unclear fee structure, disloyalty, etc., from their former clients.

 

Discussing potential costs and the fee structure clearly 

Keep a professional and transparent legal relationship. As aforesaid, your lawyer should be a good communicator in discussing all the vital aspects indulged in the process. He must provide you with an outline of how they will handle your case, what and how will they determine the fees for the legal advice, expenses incurred in the procedure and everything relating to it.

The modes mentioned above reflect some of a good lawyer's essential and potential qualities. Not every lawyer will be well-experienced, but you mustn't miss any point in checking their authenticity. It doesn't matter what it means you find a lawyer. Conducting some basic tests before choosing the one is your right, just like you do for any other service. Because a wrong lawyer can be your worst nightmare and will not only cause a waste of money but also delay the process of obtaining justice which is your basic human right. Hence, getting a good lawyer by your side is the first and foremost step in resolving cases and getting away with legal issues with the best legal consultation and assistance. 

 

 

Change of  Lawyer Procedure

Order 3 of Civil Procedure Code gives aggrieved persons the right to choose one’s pleader. Therefore changing of pleader with the leave of the Court is possible. The new pleader should submit a duly signed Vakalatnama to the court. Hence it is possible to change one’s pleader. In a few cases problem arises with the case history. If the pleader fails to give it to the client, the client can apply for the order sheet by an application to the Court. Just get NOC (No Objection Certificate) from your previous lawyer and engage another lawyer. If he refuse then get issue a notice by your terminating his Vakalat/Power with immediate effect and engage another lawyer by producing copy of such notice and postal receipt.

 

Complaint against a Lawyer the Provisions of Advocates Act, 1961 and Rules framed by Bar Council of India.

 

A complaint against an advocate has to be in the form of a petition. It has to be duly signed and verified as required under the Code of Civil Procedure.

The complaint can be filed in English or in Hindi or in a regional language where the language has been declared to be a state language. In those cases where the complaint is in Hindi or in any other regional language, the State Bar Council shall translate the complaint in English whenever a disciplinary matter is sent to the Bar Council of India as per the Advocates Act.

Every complaint shall be accompanied by the fees prescribed in the Bar Council of India Rules.

The Secretary of the Bar Council may require the complainant to pay the prescribed fees if the proper fee has not been paid. He can also call the complainant to remove any defects and call for the particulars or copies of the complaint or other documents as may be considered necessary.

On a complaint being found to be in order, it shall be registered and placed before the Bar Council for such order as it may deem fit to pass.

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IMPORTANT SUPREME COURT…

 

 

IMPORTANT SUPREME COURT JUDGMENTS 2022

 

 

1.      Gurmail Singh & Anr. Vs. State of Uttar Pradesh & Anr

 

Impact or effect if one of the convicted co-accused is died during the pendency of Criminal Appeal.

 

Ten defendants were found guilty in this case under Section 302/149 IPC by the Trial Court, and each appealed to the Allahabad High Court. Seven passed away while the appeal was pending, so the appeal was dismissed as abated. Gurmail Singh and Kewal Singh were the only remaining appellants; Karnail Singh had not joined the appeal and had passed away. Therefore, only in the Gurmail Singh case did the appeal succeeds.

 

When it came to establishing the convict(s) who were still alive, their vicarious liability under Section 149, I.P.C., were one of the issues raised in this appeal was whether the fact that there were four convicts instead of five because the co-accused had passed away had any significant impact or effect on them.

 

JUDGEMENT

 

"The Criminal Procedure Code does not define the terms "abatement" or "abate. It is necessary to check the word's definition in the aforementioned context. Abatement, as it relates to criminal proceedings, is defined as "the discontinuation of criminal proceedings before they are concluded in the normal course of litigation, as when the defendant dies" in Black's Law Dictionary. As a result, it is clear that the meaning of abatement in criminal proceedings can only be interpreted as "cessation of such proceedings due to the death of the accused/convict pending such litigation."In short, it would reveal that an appeal against conviction (except an appeal from a sentence of fine) would abate on the Appellant's death as in such a situation, the sentence under appeal could no longer be executed. The abatement is undoubtedly different from acquittal, and a mere glance at the proviso to Section 394 (2), Cr.P.C., will make this position very clear. "

According to the court's ruling, if the appellant dies while the appeal is pending and the appeal is against a conviction and death or prison sentence, the appellant must apply to the appellate court for permission to continue the appeal within 30 days of his or her passing. If permission is granted, the appeal will not be dismissed. The short version of the aforementioned discussion is that it is not possible to argue that the provision for constructive liability, which results from the accomplishment of the common goal by an unlawful assembly, is not applicable simply because seven out of the ten convicts passed away either during the pendency of the Criminal Appeal before the High Court or during the pendency of this appeal.

The bench of Justices Sudhanshu Dhulia and CT Ravikumar noted that "abatement" is unquestionably distinct from "acquittal" and that, as a result, the impact and influence of fewer convicts awaiting appeal due to the passing of fellow convicts "is obligated to differ from the effect and impact of fewer accused/convicts due to acquittal.”

 

2.      M S Madhanagopal vs K Lalitha

 

Absence of words that contain some salacious elements or words that arouse sexual thoughts or feelings does not constitute an offense under Section 294 of the Penal Code (b).

 

A woman filed a complaint against the accused in this case before a judicial magistrate for the offences covered by Sections 294(b) and 341 of the Indian Penal Code, respectively. Before the Madras High Court, the accused filed a petition under Section 482 CrPC, which was denied. The Apex Court bench noted in the appeal that the only allegation in the complaint was that the accused used profane language toward the complainant. According to the court, the test for obscenity under Section 294(b) of the I.P.C. is whether the allegedly obscene material has the propensity to deprave and corrupt those whose minds are susceptible to such immoral influences.

JUDGEMENT

It must be noted that in this specific instance, the absence of words that contain some salacious elements or words that arouse sexual thoughts or feelings does not constitute an offense under Section 294 of the Penal Code (b). None of the records discloses the alleged words used by the accused. If the offensive words are lengthy, it might not always be necessary to reproduce them, but in this particular case, there isn't much to record. Under Section 294(b) IPC, merely abusive, demeaning, or misleading language is not enough to constitute a crime.To prove the offense under Section 294 of IPC, mere utterance of obscene words is not sufficient, but there must be further proof to establish that it was to the annoyance of others, which is lacking in the case. No one has spoken about the obscene words. They felt annoyed. It cannot be claimed that the elements of the offense under Section 294(b) of the IPC are made out in the absence of legal proof that the appellants' alleged offensive words irritated others.

The court ruled that issuing processes under Section 204 and taking cognizance of a charge under Section 190(1) of the Criminal Procedure Code are judicial functions that call for discretion. This idea is supported by both sound reasoning and essential principles of justice, as it is unlawful to harass someone for whom no offense has been disclosed. The application of the judicial mind to the evidence before the court must come before the issuance of any process in order to ascertain whether there is sufficient justification for prosecution against the defendant.

Additionally, the order of the Magistrate issuance process based on the complaint would not be justified because there must be material prima facie for the issuance of the process when the allegations made in the complaint are found to be too general and vague without providing any material particulars of the offense alleged against the accused. Before taking cognizance and issuing a process, we question whether even the original complainant's oath verification was documented.The Apex Court bench noted in the appeal that the only allegation in the complaint was that the accused used profane language toward the complainant. According to the court, Section 294(b) of the I.P.C.'s definition of obscenity asks whether the allegedly offensive material has the propensity to deprave and corrupt those whose minds are susceptible to such immoral influences.

 

3.      Lalankumar Singh vs State of Maharashtra

 

To decide whether there is sufficient justification to proceed with the case or not, the Magistrate must exercise judgement.

Under Sections 16 and 34 of the aforementioned Drugs & Cosmetics Act, 1940, and Section 18(a)(i), a complaint was brought against them before Chief Judicial Magistrate. The Directors of M/s Cachet Pharmaceuticals Private Ltd. are the defendants in this case ( "CPPL"). The "Hemfer Syrup," which is covered by Schedule C & C(1) of the Drugs & Cosmetics Rules of 1945, may now be manufactured by CPPL. The accused, including the aforementioned accused, received summons from CJM. Because there are no specific allegations under Section 34 of the Act mentioned above regarding the role played by the Directors, these accused filed a Criminal Revision Petition against the summoning order before Sessions Judge. The Sessions Judge rejected this petition. They turned to the Supreme Court after having a Criminal Writ Petition dismissed by the Bombay High Court.

 

 

JUDGEMENT

 

The bench that heard the appeal noted that no specific allegations were made regarding the current appellants and that they were neither the managing director nor one of the full-time directors of the accused company. The bench also cited rulings that stated that merely repeating the words of fact regarding how and in what capacity a company director was accountable for the conduct of the company's business would not automatically subject the director to vicarious liability.

"The Magistrate is required to apply his mind as to whether the sufficient ground for proceeding exists in the case or not. The formation of such an opinion must be stated in the order itself."

"The order of issuance of process is not an empty formality. The Magistrate is required to apply his mind as to whether sufficient ground for proceeding exists in the case or not. The formation of such an opinion must be stated in the order itself. The order is liable to be set aside if no reasons are given therein while concluding that there is a prima facie case against the accused. No doubt that the order need not contain detailed reasons. In the present case, leaving aside no reasons in support of the order of the issuance of the process, it is clear from the learned Single Judge of the High Court order that no such order was passed at all. Based on the record, the learned Single Judge of the High Court has presumed that there was an order of issuance of process. It is conclude that a legal system cannot support such an approach. As a result, the appeal warrants approval.The Supreme Court noted that if no justification is provided when determining that there is a prima facie case against the accused, an order of issuance of process is subject to being overturned. The court made this observation while overturning a magistrate's summons order in a complaint brought under the 1940 Drugs and Cosmetics Act. To decide whether there is sufficient justification to proceed with the case or not, the Magistrate must exercise judgement. The order shall specify the manner in which such opinion was formed Justices CT Ravikumar and BR Gavai's panel noted. The court clarified that such an order does not have to give a specific justification.

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MODES OF CALL RECORDINGS…

MODES OF CALL RECORDINGS ACCEPTED BY COURT

 

A court's responsibility is to discover the truth and further the interests of justice. Courts give precise, relevant facts and evidence that is recorded in a understandto uncover the truth. Evidence is defined as follows in Section 3 of the Indian Evidence Act: 1) all declarations that witnesses are allowed or must make in front of the court concerning the facts being investigated; these statements are referred to as oral evidence; and 2) all documents, including digital records, that are produced for the court's inspection; these documents are referred to as documentary evidence.

 

Three main principles serve as the foundation of evidence law: Evidence should be concerned with the issue in the case; Unsubstantiated evidence is not admissible as evidence, and there should always be an effort to present the most substantial possible proof in every circumstance.

 

Section 275(1) of the Code of Criminal Procedure, 1973 states that in all warrant cases, the testimony of each witness must be recorded in writing either by the Magistrate, at his order, or if he is physically or mentally incapable of doing so, by an officer of the court who he has designated to act on his behalf. The Magistrate must sign and record the memorandum of the substance of the evidence in the court's official language as per section 274. Section 273 specifies when the suspect's personal attendance is waived, it is required that all evidence be documented in his presence and the appearance of his pleader as long as the audio-visual evidence of witnesses used in this subsection is recorded.

 

The court noted in R v. Daye (1908) that the rungs bakers and milkmen carved into the wood to denote the quantity of bread or milk supplied are documents. Paper is not the only surface that can be inscribed with writing or marks. The term "document" refers to writings, words in pictures, maps, arrangements, and manuscripts on metallic surfaces.

 

The Magistrate is allowed by Section 275 (3) to record the evidence as a set of inquiries and answers. The recording of evidence presented to the session court must comply with Section 276 and take the form of a narrative. Any piece of evidence that the presiding officer chooses to record in the manner of a query and answer must be signed by him.

 

An essential component of a trial is the examination and cross-examination of witnesses. Witness testimonies are among the most trustworthy forms of evidence because the person providing the testimony saw the incident firsthand—the Evidence Act of 1872's Sections 135 to 165 address the questioning and cross-examining of witnesses.

Evidence is only legally valid under Section 5 of the Evidence Act of 1872 when used to support a material fact in the case. The court must agree that the evidence is pertinent and set up the relevant fact at issue for it to be admitted in court. Section 8 further stipulates that the judge may inquire of the parties as to whether or not the evidence they have presented relates to a relevant fact.

 

Call recordings

 

Conducting our business over telecom services has become both convenient and volatile in recent years due to the rapid expansion of the technological sector. According to Section 5(2) of the Indian Telegraph Act of 1885, both the Central and State governments have the authority to record telephone conversations. In accordance with Section 65B of the Indian Evidence Act, electronic evidence is a novel way to present evidence to the court.

 

The meaning of an electronic record in Section 2 of the Information Technology Act, 2000 specifies that it includes sound that has been stored, obtained, or sent electronically. Furthermore, the law governing the modification of recorded digital evidence is covered by Section 85B of the Indian Evidence Act, 1872. A digital signature serves as a gauge for this electronic document's reliability and validity. To sign the document, the signature must be appended.

 

The Supreme Court accepted a telephone recording of a conversation between two parties in S. Pratap Singh v. the State of Punjab (1964) after considering the significance of taped conversations as evidence. The conversation that the parties claimed to have had was later illegally acquired and admitted into evidence. Only because they aided in the prosecution's case for conviction did the court accept illegally obtained taped conversations. Only because it assisted in settling the case was the provided evidence accepted.

 

In Rayala M. Bhuvaneswari v. NagaphamenderRayala (2008), the petitioner asked for his wife's divorce based on a hard disk containing recordings of his wife's phone calls with her family. Even though the wife disagreed with some of the material of the recordings, the court ruled that the marriage between the husband and wife is sacred and that the husband's call recording violates the wife's right to personal liberty and privacy. Law enforcement viewed the husband as a criminal because he used illegal methods to get divorce evidence. In addition, he recorded her calls without her permission, which is unlawful and indecent. The judge ruled that marriage is no longer necessary since the husband cannot respect the wife.

 

The recording of evidence reveals the strength of judgement. Numerous essential aspects of criminal and civil trials include how evidence is collected and recorded. Through the sight of the trial judges, the court examines the evidence and renders decisions on the cases. The presiding judge may examine the evidence presented by both parties. A judge should be well-versed in the law and skilled in keeping evidence records and safeguarding innocent parties. The foundation of an investigation is the initial crime scene recording. There are many different sources of evidence, ranging from examining witnesses to checking and assessing tangible items found during the case.Even connections between people, places, and things within the crime's timeline of events might be included. The court can deduce conclusions and prove the charge beyond possible suspicion using various pieces of evidence.

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Rights and Duties of…

Rights and Duties of Seller and Buyer

Most of the property cases are between family members, leading to the diffusion of the joint family into a nuclear one. Therefore, it becomes necessary to have clear views regarding the provisions of the transfer of property in India. The property transferred by way of succession, legacy or in contemplation of death is subject to respective personal laws or sections under the Indian Succession Act 1925 apply over them.

Section 54 of the Transfer of Property Act, 1982 define sale as; 

The "Sale" is the transfer of ownership in exchange for the price paid or promised or partly paid or part promised. ‘           

1.      Parties to sale

2.      The subject matter of sale

3.      Consideration

4.      Mode of execution of the sale

Parties to sale

There should be a transferor (seller) and transferee (buyer) for the sale of property, and the transferor should be a person who is competent to enter into a contract. In the case of BiswanathSahu vs Tribeni Mohan, the court stated that a transferor could either be the property owner or should have the authority to dispose of such property. For example, 'karta' have the authority to dispose of the property under specific circumstances.Similarly, the guardianof the minor person can sell the property only by court's permission.

A transferee should be a person who is competent to take possession of the property and not legally disqualified (insolvent). A minor can be the transferee, and therefore transaction of the sale is valid. 

 

The subject matter of sale

The sale of property given under this act deals only with the immovable property, and that immovable property can be tangible (which can be touched and felt) or intangible (right of easement) in nature. Further, the owner made an express statement to convey his right to transferee for the property, which can be sufficiently identified.

 

Consideration

The consideration for having a valid sale is that there must be money in exchange for ownership, and nothing other than money can be considered for a valid sale. Time is irrelevant in relation to consideration which means that money can be paid before, at the time or in subsequent completion of sale.

 

Mode of execution of the sale

For the execution of a valid sale deed, there should be a fulfilment of three essentialrequirements; sale deed by transferor should be in writing, it should be properly attested andregistered for any immovable property, but these requirements are not compulsory for theproperty which have nominal value or value less than rupees 100. In comparison, the propertywhose value is less than 100 rupees can be done by a simple transfer of property.In the case ofMeghan Enterprises Private Limited v. Official Liquidator, the​court held that the sale of​ the property being auctioned by the court does not require the above three essentials, and the certificate of sale by the court is enough for that sale only.       

 

Contract of sale

A contract of sale is only a contract over an immovable property by executing terms settled by the parties for the sale of the property. It doesn't create any right of possession and charge over the property. It is merely a document that further provides the sale of deed.

But the sale of contract gives some rights to the transferee as, after the contract of sale, the transferor cannot sell the property to another person, and for the same, he can be sued by the transferee.

The distinction between a sale and a contract of sale

1.      A transfer of ownership occurs when an immovable property is sold under the TPA. A contract for the sale of immovable property is nothing more than an agreement that the property will be sold in the future on terms agreed upon by the parties.

 

2.      A TPA sale creates a right in rem. A contract for sale makes a right in personam.

 

Buyer and seller's rights and responsibilities:

In the absence of a contract to the contrary,the buyer and seller of immovable property are subject to the responsibilities and have the rights outlined in the regulations that follow (or those that apply to the property sold).

The seller is required to:

 (a) disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not, and which the buyer could not discover with ordinary care, and  disclose to the buyer any material defect in the property or the seller's title thereto of which the seller is aware, but the buyer is not;

(b) must deliver all title papers related to the property in the seller's custody or control to the buyer upon his request for scrutiny;

(c) must respond to any relevant inquiries posed by the buyer about the property or the title to it to the best of his knowledge;

(d) execute a valid conveyance of the property when the buyer offers it to him for execution at an appropriate time and place upon payment or tender of the amount payable in respect of the price;

(e) to take as much care of the property and any title papers pertaining to it that are in his control between the date of the contract of sale and the delivery of the property as an owner of ordinary prudence would take of such property and documents;

 

Conclusion

Transfer of property is a transfer of all the rights and liabilities of the property to the buyer. But a contract of sale only shows a willingness to transfer the property,whereasa sale is an actual transfer of property. Civil law revolves around the concept of property. It is governed by the Civil Procedure Code and the Transfer of Property Act. Both attorneys and the general public need to be aware of the specifics of property transactions and transfers.

 

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Basis for Award of Compensation…

Basis for Award of Compensation in Motor Vehicle Accident Cases

Under the Motor Vehicles Act of 1988, an individual injured in a car accident or the legal representatives of an individual killed in a car accident may claim damages. It is a law made to prevent motor vehicle accidents and compensate victims and punish guilty parties in the event of an accident.There is no time constraint for submitting the claim application. However, trying to claim compensation after a long unusual duration may cause the Tribunal to have reservations. Consequently, while there is no time limit for submitting a compensation claim, it should be completed as quickly as possible.

 

The Motor Vehicle Act

The Motor Accident Claim Tribunal was formed to adjudicate disputes under the Motor Vehicles Act of 1988. The Claims Tribunal's primary objective is to ensure that cases are tried speedily and that justice is done. The claimant should submit their claim on time. According to Section 173, Claims Tribunal appeals will be heard in the High Courts. Appeals must have been lodged within 90 days of the date of the judgment. If the claimant is late in submitting his appeal, he must provide a plausible reason for the latency. The appeal will be heard if the Court approves it. The appeal will be rejected if the amount in conflict is less than Rs10,000/-.The Motor Accident Claim Tribunal supervises cases involving death, property damage, or personal injury. Claims can be submitted to the appropriate Claims Tribunal. High courts from various states oversee these Tribunals.

Penalties and offences there under the Act of 1988 According to Section 181 of the act, if a person drives a vehicle without a license or before having reached the age of majority, he may be penalized up to Rs 5000/- or imprisoned for up to three months, or both.

The Claims Tribunal may grant claims to the claimant in the following situations according to Section 165(1) of the Motor Vehicles Act, 1988:

       When an individual dies or is injured as a result of an accident

       When a third party's property is destroyed as a result of the accident

       When such accidents occur as a consequence of driving a car

The Supreme Court established guidelines in National Insurance Company Limited v. Pranay Sethi for determining the amount of compensation awarded by the offender to accident victims who are self-employed, have a regular wage, or have a fixed salary. The Court believes that "just compensation" should be based on reasonableness, fairness, and equity.

 

The following parameters were implemented in response to the decision in Sarla Verma v. Delhi Transport Corporation :

       If the dead had a secure job and were between the ages of 40 and 50, 50% of his annual pay would be added.

       If the person who died were over 50, there would be no inclusion.

       If the dead person had a fixed salary or was self-employed at the time of his death, his income was to be considered.

This evaluation of compensation in the event of a car accident death was later discussed in Pranay Sethi's case. The Court determined that only giving an addition to the deceased who had a permanent job was inappropriate. It should be stretched to others as well. "To have the perspective that he (self-employed person) is likely to remain stationary and his income to remain constant is contrary to the basic concept of human behaviour," the Court stated. Furthermore, the Court stated that there is a lack of uniformity when Claim Tribunals use different evaluation methods. As an outcome, when assessing compensation, it is desirable to implement the "principle of standardization," which was used in this case to evaluate the foreseeable prospects of victims killed in car accidents. A new group was also established for those who died while self-employed or on a regular salary.

The individual who files the claim petition must show that the respondent was negligent. It is crucial to prove that he is lawfully accountable for his actions and is at fault for them. Because there is no precise definition of negligence for the reasons of such a proceeding, it would usually mean a violation of obligation caused by an omission directed by a rational man on some grounds that he would normally do or be bound by law to do because of the behaviour of the public interests, or through doing things that a reasonable or considerate man would not do.

The Supreme Court specifies "rashness" as "risking a dangerous or recklessness act with the knowledge that it is dangerous and may cause serious harm." The hazard of committing such conduct with carelessness or indifference to the implications is criminal in such a case." The Supreme Court defined 'negligence' as "the inability to do something with reasonable and responsible means conferred by the considerations that ordinarily regulate human affairs, or doing something that reasonable and prudent means guided by similar considerations would not do."

 

Conclusion

 

The issue emerges because payment is to be made in the event of a child's death, even though the child earns nothing and may study. As an outcome, parents cannot be expected to rely solely on their children in such issues. Nonetheless, the parents will endure the loss of their child and receive to be paid fairly for it. The Supreme Court ruled in R.K. Malik v Kiran Paul that claims for the child's future prospects should be permitted in addition to financial damages. In the case of Lata Wadhwa v. State of Bihar, where the accident occurred on March 3, 1989, and many people, including children, were killed in a crash, the Court awarded significant claims.

The Court categorically stated that the children who died were all attending an expensive college or school, had excellent prospects, and came from upper-middle-class families; however, the higher claims awarded cannot be said to be for the adversity of life and the misery and grief endured as a result of the destruction of life as a result of financial state. To receive acceptance for its use, the multiplier method was noted.In the case of children aged 5 to 10, the Court ruled that "a sum of Rs.1.50 lakhs was awarded towards pecuniary compensation and a sum of Rs.50,000/- was awarded towards 'conventional compensation." Compensation of Rs.4.10 lakhs was awarded in the case of children aged 10 to 18 years, including "conventional compensation."

Legislation is passed to help the general public. The Motor Vehicles Act of 1988 was passed to prevent accidents; it is an important law that must be adequately enforced. As a result, the government and the general public must work to see it through. Every person must ensure that he does not infringe its provisions because an accident results from an individual's behaviour.

 

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