In this blog post, Suprateek Neogi from Rajiv Gandhi National University of Law, Punjab, talks about how to register a will in India.

What is a Will?

A will is a declaration of the writer of the will about how he or she wishes to distribute his or her property after their demise. A will cannot deal with ancestral property, it only deals with self-owned property.

In the case of “Maturi Pullaian v. Maturi Narasimham”, the court ruled that registration of a will is not compulsory. A will, which is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the Registrar. This exception falls under Section 18 of the Registration Act, 1908 which regulates the registration of official documents.

A will needs to be interpreted such that the intention of the testator is clearly known irrespective of the words of the will seeming ambiguous. This was established in the case of Rajrani Sehgal v. Dr. Parshottam Lal (1992).

In the case of Badari Basamma v. Kandrikeri (1984), the court has held that in the case of two wills, the latter one will prevail.

Some Basic Terms and Definitions Related to Will

• Testator

The person whose will it is, or who writes it.

• Executor

Section 2(c) of the Indian Succession Act defines executor as the person whose responsibility is to execute the wishes of the deceased contained in the will.

In case no executor has been appointed by the deceased, the court appoints an administrator to carry out the responsibilities of an executor.

• Estate

Estate is basically the total value of everything you own. It can also be defined as the net worth of the person including all the properties, bank accounts, cash in hand etc.

• Legatee

A legatee or beneficiary of a will is basically all those who benefit from the will. The people or entities to whom the estate is bequeathed are called the legatee.

• Probate

Section 2(f) of the Indian Succession Act defines probate as the certified copy of the will with the seal of the court. It acts as an evidence of the existence of the will and also of the executor.

• Holographic will

A handwritten will is called a holographic will. A holographic will is preferable because it is easier to verify the will to be genuine. This is because every person has a unique handwriting.

Types of Wills

• Privileged wills

As the name indicates, these wills can be executed by certain people. Any soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make a privileged will.

A Privileged Will may be written or oral.

•  If a privileged will is written (completely or partly) by the testator, it need not be signed.

• If it is written by someone else and without any signature of the testator, it is valid if it can be proved that it was written as per the testator’s wishes.

• In case the will is not executed as per the wishes of the testator, it shall not be invalid only if it can be proved that some factor other than abandonment of intentions to execute the will was responsible for the same.

• The death of the executor before execution of the will will not make the will invalid.

Oral Wills need two witnesses

• Oral wills can be called invalid if the testator is no more qualified to make a privileged will within a month (in case he or she is still alive).

A privileged will may be revoked by a letter will which may even be an unprivileged will. Revoking a privileged will can simply involve physical methods like tearing the sheet, burning etc.

• Unprivileged wills

Any person who does not come under the category of a soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make an unprivileged will.

• An unprivileged will has to be signed or attested in all forms, unlike a privileged will.

• The signature or the attestation (of the witnesses and the testator) of the will should be such that there should be no doubt about the reason of the same.

• This basically means that the signature should be made clearly and should be clearly visible that it gives legitimacy to the will.

• An unprivileged will requires two witnesses.

• Both the witnesses do not need to be in each other’s presence during the process of signing.

Who Can Write a Will?

Section 59 of the Indian Succession Act, 1925 specifies who all are eligible to write a will. It clearly states that any adult of a sound mind (i.e. not a minor under the Indian Majority Act) can write an executable will.

In the case of Man Kaur v. Gurnam (1984), the Punjab and Haryana High Court said that if a will is said to be properly executed, it is a given presumption that the testator was of sound mind.

Note: The Indian Succession Act, 1925 is not applicable to Muslims as their laws are mostly governed under Muslim Personal Law.

• A married woman is also eligible to write a will if she can isolate the property solely belonging to her and not on anyone on whom she may be dependent i.e. husband or parents.

• Being deaf or dumb or blind does not incapacitate you from writing a will.

• If they know what they are doing, they can write a will.

• Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.

Basically, anyone who is incapable of understanding what the will is saying, the nature of his or her property etc. are not considered capable of making a will.

Registration of the Will is Not Compulsory So, Why Should You Register?

Registering a will provides definitive legal backing to the will in case of possible disputes which may arise in the future. In case of any dispute about the validity of the will, this is of a great help.

For example, if there are two wills of the same testator (writer of the will), dated for the same day and their validity is being disputed and one is registered so, the will which is registered will have more legal basis than the one which is not.

But simply registering a will is not enough. In the case of “Rani Purnima Devi And Another vs Kumar Khagendra Narayan Dev And Another”, the Supreme Court said, “Registered Will not by itself be sufficient to dispel all suspicion regarding it, where suspicion exists, without submitting the evidence of registration to a close examination”.

Step by Step guide to Registering a Will

• Registration of wills has more flexibility as compared to other documents under the Registration Act. All other documents have to be registered within four months of their date of execution. Wills can be registered anytime.

• The same rule does not apply for wills because of its delicate nature.

• Often for the sake of privacy and even for security measures, a testator may not want to disclose the will to their contemporaries. Hence, there is no fixed time period for its registration.

• The will needs to be registered before the Sub-Registrar or the Registrar of the district court under whose jurisdiction a major part of the property lies.

• In all normal or ordinary cases, the registration process has to be in the offices of the Registrar or the Sub-Registrar. But, in special cases, Section 31 of the Registration Act provides an exception.

• The section states that the “officer may on special cause being shown attend at the residence” for the registration process of the will.

• The cause may be ill health, impending the death and other such situations.

• The Registrar has the responsibility to examine the document carefully and make sure no legal errors are made in the same before signing on the registration.

Unregistered Wills

A common misconception regarding wills is that registered wills have supremacy over unregistered wills even if the unregistered will has been dated on a later date.

• Badari Basamma v. Kandrikeri established that in the case of two wills, the latter one would prevail.
• It also established that it holds true irrespective of the will being registered or not. Hence, the misconception is baseless.

What to Do After the Testator Dies

• Irrespective of the will being registered or unregistered, probate proceedings have to be initiated in the district court or high court of appropriate jurisdiction.

• The court will study the will and make sure that the will has been made by the due process of law.

• The court will let the executor deal with the estate and distribute the same as per the provisions in the will.

• In case the testator has not appointed an executor, the court shall appoint an administrator to do the same.

Revoking of a Will

Section 62 of the Indian Succession Act states that the will can be revoked by the maker at any time he or she is competent enough to do so. Competency here hints at the testator being of sound mind and having attained the age of majority.

Who Can Challenge a Will?

Only a person who has sufficient reasons to challenge the same may do so. Only if the person is affected by the will can he challenge the same. For example, the son of the deceased who feels that he had been wrongfully left out and is not the beneficiary may challenge the will and a friend of the son may not do so.

When Can a Will be Revoked?

• Section 69 of the Indian Succession Act states that marriage of the maker will revoke any will made by him or her.

• If a new will has been made on a later date, it automatically revokes the previous one.

• If the plaintiff can prove that the writer of the will was incapable of making a will at the time it was made. This can happen if the plaintiff proves –

• The maker of the will was of unsound mind or of the age of minority.

• If it can be proved that the will was not signed with the free consent of the testator or the witnesses.

The registration process of the will & the law registration of a will abides by are quiet complex, don’t you think? Drop your views in the comment box & share the article.

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In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata describes how an individual can claim a property damage claim after an accident. 

Introduction

Accidents not only cause damage to the life of the person but it also leads to damage of the property. Property includes the vehicle which has been damaged during the accident and also the personal property which has been damaged due to the accident, e.g., phone, laptop or any valuable personal belonging or damage caused to the immovable property which can be land or the house.

Claim of Compensation

The law gives the primary right to compensation against the breach of legal right. Likewise, wrongful interference with the immovable property of another is a legal wrong and law gives the primary right to damages or compensation for such legal wrong.

Points to be kept in mind while filing a Property Damage Claim:

1. Contact Your Insurance Company by Phone: All policies have deadlines by which you must submit the actual estimate of damages and formal claim, but notice of the damages is different. Notice puts the insurance company on notice that some damage has occurred and it gives the insurer an opportunity to inspect, take photos, and investigate. Now, during this ‘notice’ you need not provide an opinion about how the damage occurred / what caused it. Everything you say will be recorded by the insurance claims handler and can be used to deny your claim. Therefore, it is best to just notify the damage and say that you are not sure yet about what exactly caused the accident and you are trying to understand the same.
2. Keep Records: Take photographs – there is no such thing as too many damage photos when it comes to insurance claims. Even taking pictures of the area around your property can be helpful in the long run to show that how bad the damage has been caused. Gather all the documents you need (copy of your policy, declarations pages, get news clippings if it was a severe storm or tornado or earthquake, get a newspaper with weather information for the day the damage occurred. Also, make a list of all the items and stuff you lost or were destroyed so that their value can be estimated.

3. Keep Receipts: Any damage-related repairs you make or things you purchase to prevent further damage could be reimbursable under your policy. Keep those receipts—including receipts for hotel stays, building materials, food you replace or buy, laundry costs, anything you pay for that you would not have had to pay for but for the damage that occurred.

4. Stay Informed: Your insurance company will provide claim forms and instruct you on filling them out, but you may also be pre-certified for medical services like MRIs, disaster expenses, hotel stays, emergency funds, etc. that can avoid running into coverage issues later. For this reason, you should always read your policy. Denials of coverage often run into this problem, and you should be diligent in making sure it has not happened to you.

5. Prevent Further Damage: Just because a storm has destroyed half your house does not mean you can sit idly by while the next day’s rain destroys the other half or the rest of your belongings. One must take reasonable steps to keep further damage from occurring. If you do not, the insurer may deny the claims you make for damages that occurred post-damage event.

6. Don’t Commit Fraud: Avoid making fraudulent claims including adding items that were never lost or collaborating with contractors to overcharge the insurer. Unscrupulous contractors, public adjusters, and simple crooks can prey on disaster victims while they wait for their insurance payments. And insurance investigators go into these things with a less-than-healthy level of suspicion and are also good at their jobs.

7. File Sooner Rather Than Later: Almost all insurance companies have time limits on how long they will accept claims after the damage has occurred. One should never wait longer than reasonably necessary. What is ‘reasonable’ is critical and tough to define. But consider why you are waiting to file the claim–if you have a reason for waiting that makes sense to most people, then maybe it’s reasonable.

8. Do not begin repairs until approved by an insurance company: Your insurance company will want to come out and inspect the property before repairs begin. After that, you must ensure that you and your insurance company agree on the repairs and the cost of those repairs. If you start repairs before the insurance company inspects the property and approves them, the insurance company may not pay for the repairs or may not pay enough for the repairs. This could leave you paying for those damages out of your pocket. There is always a lot of negotiating in large insurance claims. You must be patient and be prepared to wait to start work until you know it will all be covered.

9. Do not throw anything away: You should not throw away any items that are damaged until the insurance company has authorised this in writing as such items will help you support your claim and to determine the values of the property. Your policy states that the damaged property should be available for inspection at any time throughout the claim. Should you dispose of your “evidence” prematurely, you risk having these items denied coverage or refund.

10. Do not respond by repairing or replacing the property: You do not have to make the repairs or replace the contents that were lost in the event. Your insurance policy is a legal contract between you and your insurance company. The insurance company must pay you for the damages whether you rebuild or not. You can use the settlement to purchase another property in another location rather than make repairs to the old property. Or you may simply cash out your settlement and not replace anything. Remember, when you suffer a loss to your property, you do have options. Make sure you explore them all and then make the best decision for you and your loved ones.

Suits for immovable property situate within jurisdiction of different courts

Where a suit is to obtain relief respecting, or compensation for Damage to, immovable property situated within the jurisdiction of various courts, the suit may be instituted in any court within the local limits of whose jurisdiction any portion of the property is located. Provided that, in respect of the value of the subject-matter of the suit, the entire claim is cognizable by such court.

Suits for compensation for wrongs to persons or movables

As far as suits relating to immovable properties and the relief is by way of compensation, a suit can be filed at two places-

(1) Where the defendant resides or,

(2) Where the damage to the movables occurred.

The same will apply to the suits for compensation for damage to persons.

Suits for compensation for damage to person or movables

Where a suit is for compensation for Movable Property, if the Damage was done within the local limits of the jurisdiction of one court, and the defendant resides, or carries on business or personally works for gain, within the local limits of the jurisdiction of another court, the suit may be instituted at the option of the plaintiff in either of the said courts.

In other words, this section corresponds to suits for damages or compensation about persons or movable property. Suits involving tortious liability are covered by this section. We are aware that Tort is a civil wrong for which the relief lies by way of claiming unliquidated damages. Nuisance, negligence, defamation, accident, trespass, etc. come under tortious liability. In such cases, the two options where to file the suit are where the defendant resides or carries on business or work for gain or where the tortious act takes place. It is for the plaintiff to choose the location. Of course, this section is also subjected to pecuniary jurisdiction.

Conclusion

The policy requires that you give prompt notice of a claim. Should you remove damaged property or alter the scene where the claim occurred, you may have your claim denied if your actions compromised the insurance companies ability to investigate the claim. All insurance policies require that you make a detailed listing of all property damaged in the claim. Avoid making fraudulent claims including adding items that were never lost or collaborating with contractors to overcharge the insurer.

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In this blog post, Suprateek Neogi, from Rajiv Gandhi National University of Law, Punjab, describes in detail about the process of writing a will.

What is a Will?

A will is a legal representation of the intentions and wishes of how the person, who writes it wants to distribute his or her property after their demise. A will only deals with self-owned property. The person whose wishes the will represents is the testator, his property subject to the will is the estate and the beneficiary of the will is also called the legatee.

In the case of “Maturi Pullaian v. Maturi Narasimham”, the court ruled that registration of a will is not compulsory. A will which is properly signed and clearly expresses the wishes of the testator will be legally valid even if it is not registered with the registrar. This exception falls under Section 18 of the Registration Act, 1908 which regulates the registration of official documents.

Types of Wills

• Privileged Wills

As the name indicates, these wills can be executed by certain people. Any soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make a privileged will.

A privileged will is made for the above-mentioned people for specific reasons. This is because their jobs are of a dangerous nature. Adding to that, they are serving their country and at the same time, risking their lives for the same. Hence, special provisions are made under Chapter IV of the Indian Succession Act for them.

• Unprivileged Wills

Any person who does not come under the category of a soldier or airman engaged in warfare, mariner currently at sea, any military medical officer on duty in an expedition and any naval officer at sea can make an unprivileged will. This is the most common form of a will.

The Executor (or Administrator) of the Estate

• Chapter VI of the Indian Succession Act specifies the powers of the executor. It basically mentions that all the administrative tasks of disposing of the assets as per the will is the duty of the executor.

• The executor (or administrator) of the estate, as appointed by the testator, has the powers to take legal action on behalf of the deceased.

• He has the power to sue in case of any cause of action arising.

• These do not include the powers to sue for criminal wrongs like defamation, assault, attempt to murder etc.

• He also has the authority to take steps to recover any debts owed to the deceased.

• Most importantly, the executor has the powers to dispose of the property of the deceased as per his wishes. That is the main purpose of an executor.

• The executor does not have the absolute power to do the same, he has to do it as per the wishes of the testator.

• Further, the administrator does not have the powers to “mortgage, charge or transfer by sale, gift, exchange or otherwise any immovable property” without the permission of the court.

Basically, the executor cannot contradict the text and the intent of the will at any point.

Who Can Write a Will?

Section 59 of the Indian Succession Act, 1925 specifies who all are eligible to write a will. It clearly states that any adult of a sound mind (i.e. not a minor under the Indian Majority Act) can write an executable will.

Note: The Indian Succession Act, 1925 is not applicable to Muslims, as their laws are mostly governed under Muslim Personal Law.

Explanations under Section 59 are as follows –

• A married woman is also eligible to write a will if she can isolate the property solely belonging to her and not on anyone on whom she may be dependent i.e. husband or parents.

• Being deaf or dumb or blind does not incapacitate you from writing a will.

• If they know what they are doing, they can write a will.

• Any person under a state of intoxication (voluntary or involuntary), illness or any similar cause cannot make a will.

Basically, anyone who is incapable of understanding what the will is saying, the nature of his or her property etc. are not considered capable of making a will.

Essentials to Know Before Writing a Will

• Any person, of the age of majority and of a sound mind, can write a will.

• A common misconception is that only the rich need to make a will. That is not true.

• Disputes may arise while disposing of your property, even if it is not a lot. The purpose of a will is to avoid all that hassle and your property is distributed as per your wishes even after you are gone.

• The person must have the rights to dispose of the property mentioned in the will.

• The property to be disposed of by the will may be moveable or immoveable.

• Registration of a will before a registrar or a sub-registrar is not essential, although it certainly provides legal backing to the will.

• A will can be registered anytime after the writing of the same

• The details on the document must be accurate. Even misspelling the names of the beneficiaries or the testator on the will may lead to confusion and the will being declared void.

• At any time, there can be only one will existing. Any previous wills are nullified with the newer ones.

Suggested Reading: How to Register a Will

How to Write a Will

Although the laws of India do not provide for a specific format for writing a will, a format is necessary for the will to be executed properly and with no disputes and confusion.

A few points that should be in your will –

• The will should be titled as LAST WILL AND TESTAMENT

• It should clearly specify whose last will and testament the will is, i.e. who the testator is.

• Declaration: Like any legal document, it can specify the address of the testator and other such relevant details for identification and verification like the aadhar number etc.

• It will specify that the testator is of sound mind at the time of writing the will.

• The testator has written the will of their own free will, i.e. they haven’t been coerced or forced.

• Appointment of Executors: Executors are those who have the absolute powers to dispose of the assets or estate of the testator as per his or her wishes.

• This clause should also provide for a situation where the executor may die before execution of the will.

• The executor should be accorded with authority to take the help of experts like lawyers, doctors etc. if the need arises for the purpose of execution of the will.

• Appointment of Beneficiary: Beneficiaries are those persons who get the property of the testator upon execution of the will.

• This clause is of utmost importance as this specifies who gets what from the will.

• This clause should clearly specify the worth and value of all the property being disposed of by the will. More accurate the information is, easier it is to dispose of the estate.

For example, the value of the house, total amount of jewelry to be disposed of, bank account numbers and their contents etc. should be mentioned clearly.

• In case of multiple beneficiaries, this should specify how much each beneficiary should get.

• The clause should also address the contingency where the beneficiary dies before the testator.

• Miscellaneous: The testator may have wishes other than those mentioned above and they should be mentioned under separate clauses.

• This may include the choice of the funeral ground, preferred method of last rites, whether the estate will finance the funeral etc.

• In case the testator has minor children, he or she may want to appoint a guardian.

• The testator should also mention any assets which are not a part of the will, if any.

• Declaration and Attestation by the Witnesses

• Like the testator, the witnesses also have to declare that they are of sound mind and have attained the age of majority (in India under the Majority Act).

• The role of a witness is to make sure that the testator has made the will by his own free will and under no duress.

In Case of Suspicious Wills

In the case of Bharpur Singh & Ors. vs. Shamsher Singh, the Supreme Court said that  “Suspicious circumstances like the following may be found to be surrounded in the execution of the Will –

1. The signature of the testator may be very shaky and doubtful or do not appear to be his usual signature.
2. The condition of the testator’s mind may be very feeble and debilitated at the relevant time.
3. The disposition may be unnatural, improbable or unfair in the light of relevant circumstances like the exclusion of or absence of adequate provisions for the natural heirs without any reason.
4. The dispositions may not appear to be the result of the testator’s free will and mind.
5. The propounder takes a prominent part in the execution of the Will. (vi) The testator used to sign blank papers.
6. The Will did not see the light of the day for long. (viii) Incorrect recitals of essential facts.

The circumstances narrated hereinbefore are not exhaustive. Subject to offer of reasonable explanation, existence thereof must be taken into consideration for the purpose of arriving at a finding as to whether the execution of the will had duly been proved or not.”

Section 68 of the Evidence Act states that any document, especially wills need to show a “proof of execution”. The witnesses, if alive, need to explicitly speak before the court regarding the validity of the will.

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This blog post on the difference between FTO and Infringement Analysis is written by Jyoti Chauhan – a registered Patent & Trademark agent.

Mostly people get confused between these two terms. To answer this question one does a patent analysis to ascertain if there is any infringement of a patent to be termed as Patent infringement analysis and the conclusion of said patent analysis can be termed as Freedom to operate opinion and NI opinion.

There are a lot of people who use terms “Freedom to operate opinion” and/or “NI opinion” routinely yet sometimes are confused as to if they are same or different.

As per my understanding, these are actually two different terms yet having a common aspect of infringement opinion.

Freedom-to-operate opinion is basically the advice sought from a patent attorney w.r.t a field of technology and represents a broader infringement analysis provided by the patent attorney with respect to whether a technology will infringe any 3rd party patent.

On the other hand, NI analysis or infringement opinion is the one which is generally directed to a specific patent or patents known to the client.

The client seeks an infringement opinion to get some assurance that a proposed technology will not infringe the specific patent or patents known to him. In contrast, a freedom-to-operate opinion is broader in scope and addresses the potential for infringement by any patents, whether known or unknown to the client.

Both of them differ with respect to the end result desired

When you do a freedom to operate search you would analyze all kinds of literature ie. valid patents, expired patents, non-granted applications, invalidated patents & all non-patent literature to conclude the areas of technology which your organization can work. This would essentially be done at the start of the project.

Whereas a patent infringement analysis for a technology would essentially analyze only valid granted claims for the specific geographical location & to have a futuristic scope – all relevant patent applications.

Freedom-to-operate opinion is generally sought at the beginning of technology development when the client is considering the costs and benefits of the project. For example, the client may be a new entrant in the technological field, and may not have much knowledge of the extent of patenting in that field. Moreover, the client may want to provide some assurance to potential investors that the technology development will not encounter any patent hurdles and that there are no significant barriers to entry. Ideally, the freedom-to-operate opinion will conclude that there are no pertinent patents that would impact the technology development, i.e., that the client is “free to operate” without risk of patent infringement. To the extent that pertinent patents are identified, the opinion provides the client with knowledge that can be used in the technology development process to avoid those patents. Further, the freedom-to-operate opinion enables the client to balance the possible risk of infringement against the expected financial benefits of developing the technology.

In contrast, an infringement opinion is generally sought after a client has notice of the existence of a particular patent. The client may have received a demand letter or license offer from the patent owner or may have independently discovered the patent from a review of trade literature or other publications. The Federal Circuit has said that a person that has actual notice of a U.S. patent “has an affirmative duty to exercise due care to determine whether or not he is infringing. The client may be motivated to seek the infringement opinion in order to satisfy the requisite duty of due care to avoid liability for willful infringement. The client may also use the infringement opinion as a roadmap to design around the patent and thereby avoid the risk of a patent infringement claim. To the extent that a freedom-to-operate opinion identifies patents that are potentially applicable to the technology, thereby implicating the duty of due care, the opinion may further include an infringement opinion that addresses the identified patents in greater detail. Even though infringement and freedom-to-operate opinions have differences in terms of the number and scope of the patents considered, they each address the same fundamental issue of determining whether the technology will infringe a third party’s patent.

While there is some similarity between them, infringement opinions and patentability opinions address fundamentally different issues and are not interchangeable. Infringement opinions focus on whether the technology would infringe the claims of a patent. In contrast, patentability opinions focus on whether the technology would itself be patentable over the prior art, and therefore consider the disclosure of the prior art but not the scope of the claims. There may be some overlap in the patents that are considered, but also some differences. For example, infringement and freedom-to-operate opinions will typically consider only U.S. patents that are still in force, while patentability opinions will consider both expired and non-expired patents as well as international patents and patent applications and non-patent prior art.

A patent infringement analysis consists of two steps. The first step is to construe the claims by determining the meaning and scope of each patent claim limitation. The second step is to compare the properly construed claims to the allegedly infringing device. For the second step, infringement may be either literal or, under certain circumstances, by equivalents pursuant to the Doctrine of Equivalents.

“Freedom to operate”, abbreviated “FTO”, is usually used to mean determining whether a particular action, such as testing or commercialising a product, can be done without infringing valid intellectual property rights of others.

And to generate an FTO – what one does is a “Patent Infringement Analysis”. This involves locating all relevant unexpired patents and subsequent analysis to check if ones proposed product/process is outside the scope of all these patents. If the answer is YES – it is assumed that one actually has an FTO. Such conclusion, along with proper reasoning is what gets documented in an FTO; while the analysis carried out earlier provides the raw data for such an FTO.

FTO opinion would comprise listing and analysis of all relevant patents, published applications and non-patent literature wherein the expired patents, patents expiring before the product launch and non-patent literature (published before the priority date of patents of concern) are cited to support the “Freedom to Operate”, although some patents may be infringed directly or indirectly. It is a comprehensive analysis of all relevant patents, applications published and non-patent literature to defend the “Freedom to Operate” status of the technology in use with respect to all blocking patent claims.

Non-infringement analysis or opinion is generally obtained for one or more specific patents/applications published. This would include a comparison of the claims of the patents/applications of concern vis-a-vis the technology in use or intended.

Patent infringement and freedom-to-operate opinions represent the advice rendered by a patent attorney with respect to whether a technology will infringe a third party’s patent.These are actually two different yet related types of opinions.

An infringement opinion is typically directed to a specific patent or patents of which the client has become aware. The client seeks an infringement opinion to get some assurance that a proposed technology will not infringe the specific patent or patents. However, a freedom-to-operate opinion is broader in scope and addresses the potential for infringement by any patents, whether known or unknown to the client.

The fundamental purpose of such opinions is to advise the client as to whether a technology would infringe a third party’s patent. The technology may include a product or service that the client already makes, sells, or uses or a product or service that the client contemplates making, selling, or using in the future. A client may have already become aware of a particular patent, possibly by receiving actual notice of the patent or by discovering the patent through the course of developing the technology. Or, the client may not be aware of any particular patents and may want to be sure that there are no patents that would impact a technology development. In either case, the client is seeking some assurance that it will not be faced with a potentially expensive and time-consuming patent infringement lawsuit.

A freedom-to-operate opinion is generally sought at the beginning of technology development when the client is considering the costs and benefits of the project. For example, the client may be a new entrant in the technological field and may not have much knowledge of the extent of patenting in that field. Moreover, the client may want to provide some assurance to potential investors that the technology development will not encounter any patent hurdles and that there are no significant barriers to entry. Ideally, the freedom-to-operate opinion will conclude that there are no pertinent patents that would impact the technology development, that is, that the client is “free to operate” without risk of patent infringement.

An infringement opinion is generally sought after a client has notice of the existence of a particular patent. The client may have received a demand letter or license offer from the patent owner or may have independently discovered the patent from a review of trade literature or other publications. The Federal Circuit has said that a person that has actual notice of a US patent “has an affirmative duty to exercise due care to determine whether or not he is infringing.”The client may be motivated to seek the infringement opinion in order to satisfy the requisite duty of due care to avoid liability for willful infringement. The client also may use the infringement opinion as a roadmap to design around the patent and thereby avoid the risk of a patent infringement claim.

Even though infringement and freedom-to-operate opinions have differences in terms of the number and scope of the patents considered, they each address the same fundamental issue of determining whether the technology will infringe a third party’s patent.

I have heard people use the terms to mean different things, depending on where they are and/or in what firm they trained.

I don’t think it really matters what you call it. You should discuss and define with your patent attorney what the opinion will analyze. At the end of the day, you can call it whatever you want and as long as the scope itself is clearly defined in the opinion without relying on the reader to understand how the terms “Freedom to Operate” and/or “Patent Infringement Analysis” are used.

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In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata describes the process of registration of a will in Punjab. 

DEFINITION OF A WILL

A Will is a document in which the testator declares his intention regarding the distribution and management of his estate after his death. Incase, if the person has not left the will after his death then he would be termed as intestate, this would result in the distribution of the property as per law of descent and distribution. A Will enables the person to select his/her heir without allowing the law of descent and distribution to choose the heir for him.

PURPOSE OF REGISTERING A WILL

Registration of a will is not mandatory in India; an unregistered will is not considered to be not genuine. A will is recorded in the registration acts as a proof that the proper parties have appeared before the registering officers and they have attested the same after ascertaining their identity. As per the guidelines of the Indian Succession Act, a will whether registered or not shall be believed to be validly executed. Registration of a document shall be done to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, to or in immovable property. After the registration is done, the will is placed in the custody of the registrar where it cannot be tampered, destroyed or modified.

PRESENTATION OF WILLS AND AUTHORITIES TO ADOPT

Persons entitled to present wills and authorities to adopt–

(1) The Testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.

(2) The Donor, or after his death the Doner, of any authority to adopt, or the adoptive son, may present it to any Registrar or Sub-Registrar for registration.[1]

REGISTRATION OF WILLS AND AUTHORITIES TO ADOPT

A will or an authority to adopt, is presented for registration by the testator or donor, may be registered in the same manner as any other document. A will or authority to adopt is submitted for registration by any other person entitled to present it shall be recorded if the registering officer is satisfied that [3]

(a) The will or authority was executed by the testator or donor, as the case may be;

(b) The testator or donor is dead

(c) The person presenting the will or authority, under Section 40, is entitled to submit the same.

DEPOSIT OF A WILL

(1) Any testator may, either personally or by duly an authorised agent, may deposit with any Registrar his will in a sealed cover super scribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.

(2) The testator shall also endorse on the cover the name and address of the person to whom the original document shall be delivered after registration thereof, after his death.

Procedure on deposit of Wills: On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his Register-book No. 5 and shall note in the same book and on the said cover the year, month, day and hour of such presentation and receipt, and the names of any persons who may testify to the identity of the testator or his agent, and any legible inscription which may be on the seal of the cover.

Proceedings on death of depositor: If on the death of a testator who has deposited a sealed cover under Section 42, application be made to the Registrar who holds it in deposit to open the same, and if the Registrar is satisfied that the testator is dead, he shall, in the applicant’s presence, open the cover, and, at the applicant’s expense, cause the contents thereof to be copied into his Book-3 [8] and then deliver the deposited will to the nominee of the testator or his representative.

Duties of registering officers when document presented:

(a) The day, hour and place of presentation and the signature of every person submitting a document for registration shall be endorsed on every such document at the time of filing.

(b) A receipt for such document shall be given by the registering officer to the person presenting the same.

(c) Subject to the provisions contained in Section 62, every document admitted to registration shall without unnecessary delay be copied in the book appropriated, therefore according to the order of its admission.

Note: All such books shall be authenticated at such intervals and in such manner as is from time to time prescribed by the Inspector-General.

REGISTRATION FEES 

Article I.         FOR THE REGISTRATION OF DOCUMENTS:-

In Book I, the register of non-testamentary documents relating to immovable                 property:-

Note: Such fee in the case of duplicates, if presented with the original, shall be two rupees only Duplicates, if not presented along with the originals shall be treated like the originals.

Note: The registration fee to be paid on partition deeds shall be calculated on the value of share or shares on which stamp duty has been assessed under article 45 of Schedule 1-A to the Indian Stamp Act, 1899.

In Book No. 3, register of wills and authorities to adopt:-

All non-testamentary instruments relating to Book IV including sale certificate, presented for registration in the original format.

Under section 80 of the Registration Act, 1908, all the fees for the registration of documents, shall be payable on the presentation of such documents. The additional fee under this article is not payable on the registration of wills and authorities to adopt.

References:

[1] The Registration Act 1908, Part VIII, Section 40

[2] The Registration Act 1908, Part VIII, Section 41

[3] The Registration Act 1908, Part VIII, Section 40

The post All About The Registration Of A Will In Punjab appeared first on iPleaders.

In this blog post, Upasana Chamkel, from Balaji Law College, Pune, talks about everything that every Indian should know about Islamic Law.

“Islam is a religion of mercy to all people, both Muslims and non-Muslims.The Prophet was described as being a mercy in the Quran due to the message he brought for humanity”

“And we have not sent you but as a mercy to all the worlds.” (Quran)

Islamic Law is a branch of Muslim theology giving practical expression to the faith which lays down how a Muslim should conduct in accordance with his religion, both towards God and towards other men.

According to Prophet Mohammad, the Muslim Law is a commandment of God and the sovereign in the Muslim states and it is his (Muslims) duty to follow it literally.

Islam means peace by submission and obedience to the will and commandments of God and those who accept Islam are called Muslim, meaning, those who have accepted the message of peace by the submission of God.

The Islamic Era

Islam in the religious sense connotes a submission on the will of God and in literal sense it means – peace, greeting, safety and salvation. Islamic society is not based on caste distinctions or accident of birth in a particular family.

Under Islam, excellence consists only in deeds and here worship of God means service of fellowmen and the good of humanity. The duties of a man are more important than his right.

It is said – God will not be merciful to him who is not merciful to men and all creation is the family of God, and all creation, the most beloved of God is he who does most well to his family.

Nature of Muslim Law

• Man-Made Laws

Man-made laws are those laws which are enacted by the rulers or legislation.

• Divine Laws

Divine Laws are certain principles in accordance with which we are compelled to act because God desires to do so.

Sources of Muslim Laws

The Muslim Law has been derived from various primary as well as secondary sources.

• Primary Sources

• Quran

• The word Quran is derived from the Arabic word “Quran” and properly signifies the reading or that which ought to be read.

Each and every word used in the book is Quran. Quran was revealed during the last 23 years of the life of the Prophet of Islam at Mecca and Medina.

• Sunna or Ahadees

• Ahadees is what was said by Prophet and Sunhat is his practice and action. Whatever the Prophet said or did without reference to God is treated as his tradition and is the second source of Muslim law.

• Ijma

• Ijma means the agreement of the Muslim jurists of a particular age on a particular question of law. In other words, it is the consensus of jurists’ opinion. Persons having knowledge of law were called Mujtahids (jurists).

• Qiyas (Analogical Deduction)

• It is fourth among the ancient sources of Islamic Law. The law may be deduced from what has been already laid down by these three authorities by the process. It was a method of comparing the problem of society with a similar problem for which solution was given in the texts.

• Secondary Sources

• Judicial Decision (Precedent)

• The subordinate courts are bound to follow the laid down by the superior court. This is called the principle of precedents and is followed in India on the pattern of the British courts.

Muslim Law is no exception to this judicial practice and therefore, a point of law decided by the Supreme Court or a High Court of India becomes a source of law for the courts subordinate to them.

• Legislation

• It is generally believed in Islam that Allah alone is the supreme legislator and no other agency or body on the earth have authority to make laws. This belief is so deep–rooted that even today any legislative modification may be treated as an encroachment upon the traditional Islamic Law.

• Custom (URF)

• When Islam came into existence most of the customs were found by the Prophet to be evil and bad.

Such bad customs were totally abolished by him and he declared them to be Un- Islamic but there were certain Pre-Islamic customs (dower, talaq etc) which were good and tolerable.

• Schools of Muslim Law

• The death of Prophet Mohammad in 636 A.D., a dispute arose in the Muslim community regarding the appointment of a successor to the Prophet because the Prophet had not nominated his successor.

• A great majority of Muslim suggested that there should be an election for the successor of the Prophet.

• This view was advocated by Ayesha begum, the youngest wife of the Prophet. This section of the Muslim society pleaded for elections, a method of finding out the successor of the Prophet, also because the Prophet himself had suggested election.

• The Prophet’s suggestions or sayings are called his traditions (Sunnat).

• Accordingly, an election was held in which Abu Bakr, who was the father of Ayesha Begum, was elected and became the first Caliph.

• This group of Muslims, with its leader Abu Bakr, formed the Sunni sect of Islam.

• There was a minority section of Muslim who did not agree to the principle of election. That group emphasized upon the spiritual headship of the Prophet rather than his administrative control.

• This minority group was represented by Fatima, daughter of the Prophet.

• This section of the Muslims rejected the election and relied upon the principle of succession.

• They dissociated themselves from the majority and constituted a separate sect called Shia.

Sunni School

• Hanafi School or Kufa School
• Maliki School or Medina School
• Shafi School
• Hanbali School

Shia School

• Ithna Asharia or Twelvers
• Ismaili School
• Khojas (Eastern)
• Bohras (Western)
• Zaidiyas School or Seveners

Concept of Marriage in Muslim (Nikah)

• Nikah literally means ‘tie up together’. As against the uncertain relationship of the husband and wife in Pre-Islamic society, Islam introduced marriage (Nikah) in which the husband and wife are bound together for an indefinite period.

• Man and woman agree together to lead married life and this agreement is called Nikah (marriage) and the two parties accept the responsibilities and obligations and thus live together as husband and wife.

Quran lays down this condition in very clear words:

Marry the women who seems good to you – two or three or four. If you fear that you cannot do justice to so many, marry one only.[1]

• Legal Aspects

• That polygamy is neither mandatory nor encouraged but is merely permitted.

• Like the contract, the parties to the marriage must be competent.

• Like the contract, the Muslim marriage requires the condition of the proposal (Ijab) and the acceptance (Kabul).

• Consent of the parties is an essential ingredient for a contract. In Muslim marriage also a free consent of the parties to a marriage is required.

In other words, the marriage should not be induced by coercion or undue influence or fraud.

• Consideration has also been regarded as the essential ingredient for a valid contract. In Muslim marriage, dower is regarded as the consideration for the contract of marriage.

• Like a contract, the terms of a marriage contract, within legal limits, may be settled by the parties themselves.

• Just as there are rules for regulating the rights and duties of the parties upon the breach of a contract, there is also a provision for respective rights and duties of husband and wife on divorce or dissolution of marriage.

What Makes Islam Different from other Religions

• The Muslim Personal Law (Shariat) Application Act, 1937

The object of the Act is, as its Preamble states, to make provision for the application of the Muslim Personal Law (Shariat) to Muslims in India.

• The Act came into force on 7th October 1937.

• Since 1937 therefore, the Shariat Application Act mandates aspects of Muslim social life such as marriage, divorce, inheritance and family relations. The Act lays out that in matters of personal dispute, the State shall not interfere.

• The Shariat Act, The Dissolution of Muslim Marriage Act and the Muslim Women (protection of Rights on Divorce) Act etc, which are based on the tenets of Holy Quran, govern the personal matters of Muslims.

Thus, it is clear that there is no uniformity in all personal laws as they confer unequal rights depending on the religion and the gender.

The common areas covered by a civil code include – laws related to acquisitions and administration of property, marriage, divorce and adoption. The three central statutes were also passed during the British period. They are –

• The Wakf Act, 1913

• The Muslim Personal Law (Shariat) Application, 1937

• The Dissolution of Muslim Marriage Act, 1939

In 1937, the Muslim Personal Law (Shariat) Application Act was passed with a view to abrogate these customs and bring Muslim communities under the Muslim Law.

• Law of Wakfs

• The institution of Wakf or the provision of the dedication of property – movable or immovable – for religious purposes and for Wakf the uplift of the poorer sections of the society have been a distinguishing feature of the socio-economic structure of Islam.

Devotion to the way of God or the way of goodness or piety and a strong desire to win divine approbation has been the root cause of the origin and development of the institution.

• The term Wakf means detention stopping or tying up. In its legal sense, it means dedication in perpetuity of some specific property for a pious purpose or a succession of pious purposes.

• Wakf means the permanent dedication by a person professing Islam of any movable or immovable property for any purpose recognized by Muslim Law as pious, religious or charitable and includes any other endowment or grant for the aforesaid purpose, a Wakf by a user and a Wakf created by a Non-Muslim.

Definition of Wakf

Section 3(r) of the Wakfs Act, 1995 defines it as follow:

Wakf means the permanent dedication by a person professing Islam, of any movable or immovable property, for any purpose recognized by the Muslim Law as pious, religious or charitable, and includes –

• A Wakf by user but such Wakf shall not cease to be a Wakf by reason only of the user having ceased irrespective of the period of such cesser,

• Grant for any purpose recognized by the Muslim Law as pious, religious or charitable, and

• A Wakf-alal-aulad to the extent to which the property is dedicated for any purpose recognized by Muslim Law as pious, religious or charitable.

Essentials of a Wakf

• Wakf must be perpetual or permanent dedication.

• Wakf must be irrevocable.

• Wakf must be absolute and unconditional.

• Wakf must be immediate and not contingent.

• Wakf not to be conditional.

• The Wakf must extinguish his ownership of the property.

• Object must be religious or charitable.

Persons Entitled to Make a Wakf

• The Wakf must profess Islam.

• The Wakf may be a male or female.

• The Wakf must be a major.

• The Wakf must be of sound mind and free consent.

• The Wakf must be the owner of the property.

• Divorce (Talaq)

• Among almost all the nation of antiquity, divorce was regarded as a natural corollary of marital rights.

• Even though the provision of divorce was recognized in all religions, Islam is perhaps the first religion in the world which has expressly recognized the termination of marriage by way of divorce.

• Prophet Mohammad restrained the power of divorce and gave to the women the right of obligation separation on reasonable grounds.

• Talaq in its original sense means repudiation or rejection but under Muslim Law, it means a release from the marriage tie, immediately or eventually.

• Under the Muslim Law, a marriage is dissolved either by the death of the husband or wife or by divorce. After the death of a wife, the husband can dissolve.

• The Marriage tie at his will. A divorce can also take place by mutual agreement but the wife cannot divorce herself from her husband without his consent.

Classification of Dissolution of Marriage

• By death of a party to the marriage

• By divorce

• By husband

• By Wife

• By mutual consent

• By judicial decree under dissolution of Muslim Marriage Act, 1939

• By Husband

• Talaq-ul-sunnat

• Ahsan

• Hasan

• Talaq-ul-biddat

• Written divorce

• Triple divorce

• Ila

• Zihar

• By Wife

• Talaaq-i-tafweez

• Lian

• By Mutual Consent

• Khula

• Mubarat

• By Judicial Divorce
• The husband is missing for 4 years.

• Husband’s failure to maintain the wife for 2 years.

• Imprisonment of the husband for 7 years.

• Husband’s failure to perform marital obligation for 3 years.

• Impotency of the husband.

• Husband insanity, leprosy or venereal disease for 2 years.

• Repudiation of marriage or option of puberty.

• Cruelty by the husband.

• Any other ground which is recognized as valid for the dissolution of marriage under Muslim Law.

Judgement

Recently in Shaira Bano Case, Talaq-e-Bidat is a challenge which gives a man the right to divorce his wife by uttering Talaq three times without waiting for her consent on the matter. And Allahabad high court held Triple Talaq unconstitutional, says – no personal law board is above constitution.

• Maintenance (Nafkah)

• The obligation of a husband to maintain his wife arises out of the status of the marriage. A right to maintenance forms a part of the personal law.

• Muslim Law of maintenance which is enforceable in India is based on the Muslim personal law laid down by the courts and law incorporated in the encasements such as the criminal procedure code, 1973 and the Muslim women (Protection of Right on Divorce) Act, 1986.

• Maintenance includes all the basic necessities of life which is required by a person for the sustenance of his or her life.

• The obligation of the husband to maintain his wife is absolute, irrespective of the fact that the wife bears a sound financial position and he is not in a position to maintain her.

Maintenance of the Wife

• Maintenance of wife under Section 125 of Cr.P.C 1973,

• The Muslim wife’s right to maintenance is determined not only under her personal law but also under her personal law but also under the Cr.P.C.

• A wife, whether Muslim or Non-Muslim, is entitled to claim maintenance against the husband under Sec. 125 of the Cr.P.C.

• Section 125[1] of the Cr.P.C., 1973 runs as follows –

• If any person having sufficient means neglects or refuses to maintain –

• His wife, unable to maintain herself, or

• His legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

• His legitimate or illegitimate child (not being married daughter) who has attained majority where such child is, by reason of any physical or mental abnormality or injury, unable to maintain itself, or

• His father or mother, unable to maintain himself or herself.

• Maintenance of divorced women under Muslim personal law

• A Muslim husband’s duty to maintain his divorced wife extends only up to the period of Iddat and thereafter, his liability is over.

• A wife’s right to be maintained by the husband has been recognized by all personal law in varying degrees.

• The Muslim women (Protection of Rights on Divorce) Act, 1986

• The Act extends to the whole of India and makes provisions for the maintenance of divorced Muslim women during and after the period of Iddat and also for enforcing her claim to unpaid dower and other exclusive properties.

• Adoption

Adoption is the transplantation of a son from the family, in which he is born, into another family by gift made by his natural parents to his adopting parents.

Islam does not recognize adoption but any person can adopt a child under the Juvenile Justice (Care and Protection of Children) Act 2000 irrespective of religion he or she follows and even if the personal laws of the particular religion do not permit it.

• Uniform Civil Code in India

• In India, there had never been an Indian personal law. Instead, there are several personal laws, application to various religious communities i.e. the Hindus, Muslim, Christian, Jews and Parsees.

• Each of this is known as the personal law of the particular community and covers matters of the personal relationship like marriage, adoption, inheritance and succession, maintenance and guardianship.

Two major personal laws in India are the Hindu and the Muslim.

• The Constitution enjoins upon the state to Secure for the citizen a uniform civil code throughout the territory of India.

• The bone of contention revolving around Uniform Civil Code has been secularism and the freedom of religion enumerated in the Constitution of India.

Discrimination in Various Personal Laws

• Monogamy:

Under Muslim Law, polygamous marriage for Muslim male is valid while for Hindus, Parsis, Christian, monogamy is an essential condition for valid marriage.

• Extra-Judicial Divorce:

A Muslim male can give extra-judicial divorce; Hindu, Parsis and Christians can effect divorce only through court.

• Divorce:

A Muslim man can give divorce to wife at whim or pleasure but under Hindu, Christian and Parsi law divorce, a wife can be divorced only on grounds mentioned in their respective laws.

• Husband’s Apostasy:

Automatic dissolution of Muslim marriage- this provision is not applicable to wife.

• Maintenance:

Under Muslim Law, wife is entitled to maintenance during the Iddat period only while other laws allows a post-divorce permanent alimony.

• Judicial Decisions

• In case of Mohammad Ahmed Khan v. Shah Bano Begam[2], a petition was filed by Shah Bano under Section 125 of the Criminal Procedure Code against her husband. Supreme Court upheld that a Muslim wife has a right under Section 125 of the Criminal Procedural Code. Hence, Section 125 overrides the personal law.

• In Ahmadabad Women’s Action Group (AWAG) V. Union of India[3], a PIL was filed challenging gender discriminatory provisions in Hindu, Muslim and Christian statutory law. This time Supreme Court became a bit reserved and held that the matter of removal of gender discrimination in personal laws involves issues of state policies with which the court will not ordinary have any concern.

Suggestions

• Polygamy should be banned.

• Compulsory registration of marriage.

• Recognition of women as a natural guardian.

Conclusion

Justice without equality was not palatable to the framers of the constitution. Secularism, justice, liberty, equality and fraternity are all inseparable from one another.

The notion that all secularism consists of equal status to all religions which can continue to include all aspect of life finds an echo in the reassurance sought or given that a Uniform Civil Code will embody what is best in all personal laws, rather than demanding that the Uniform Civil Code should confer the best possible rights on citizens.

Drop your comments about Muslim Law in the comments below & share the article.

References –

[1]Quran Sura IV, Ayat, 3.
[2] AIR 1985 SC 945
[3] AIR 1997 SC 3614

The post What Every Indian Should Know About Muslim Law appeared first on iPleaders.

In this blog post, Syeda Muneera Ali talks about the rights of a loan defaulter.

Finance is a major part of an individual’s life. You need money for each and every little aspects of your life. From birth to death, you spend millions of rupees for various life events that you choose to celebrate, achieve or gift. But, what do you do when you need money more than what you have? Well, that is when your eternal savior – the bank – helps you.

At this point, even though your bank may seem to be your savior, it often tends to become tiresome and cruel in the future. This is because, whilst taking a loan may seem easy (it really isn’t), clearing your debts is lot harder than you actually plan and imagine it to be. It is painful and extremely tedious. And, there are times when no matter how hard you try, there is a pretty high chance of defaulting your payments thus, making you a loan defaulter.

Loan Defaulter

Being a loan defaulter is not something to be ashamed or scared of as long as you genuinely have trouble.

When a borrower takes a loan, he enters into a legal contract with the lender wherein he is liable for the money he borrows from the lender (a bank or any other financial institution eligible for such purposes) as well as for any extra charges the bank might incur to recover the money from the borrower.

As such, the bank is allowed by law to use any steps in accordance with the law to recover a loan if has defaulted on it.

However, the key point to be considered in this aspect is ‘in accordance with the law’.

Loan Recovery by Banks

Banks are established legal entities and as such, they are bound by law to follow strict guidelines when it comes to recovering a loan.

The recovery of a debt is often a sensitive process and a process which can put a significant amount of strain on the defaulter. Recognizing this, the Reserve Bank of India and the Indian Banking Association has strict rules and guidelines which outline the proceedings banks are supposed to follow to recover loans and the general codes of conduct which govern any contact the bank might make with the borrower for such a process.

Being a loan defaulter does not strip you of your rights and basic humanity. You are still entitled to be treated as a respectable individual.

Here are some rights that you are entitled to irrespective of the fact that you have defaulted on your loan –

• Communicating with the Bank

The bank has a legal responsibility to be civil in its contact with the customers and any form of bullying or harassment is considered a criminal offense.

• You must not hesitate to contact the bank if you are finding it difficult to repay your loans for some unforeseen circumstances. The banks are expected to consider any genuine difficulties expressed by the consider while considering the steps for debt recovery.

• You can try to talk about increasing your loan tenure which will reduce the monthly EMI. You may also approach the bank about restructuring the loan, asking it to relax some of the terms and conditions.

• If you are facing a temporary problem regarding your finances, you may approach the bank for a temporary relief which may be granted after accruing some additional penalty charges.

• If you have an unsecured loan, you can try converting it into a secured loan as unsecured loans generally tend to have higher interest charges. It is always advisable to contact the bank and notify them of your situation if you are facing a problem regarding the repayment of loans.

Trying to avoid the banks will only further escalate your problems and make the banks suspicious of your intention regarding repayment of the loan.

• On the other hand, if you notify the bank of any genuine problem and convince them of your intention to pay off the loan, it may offer you help to cope up with the financial situation better.

In case the interest accrued on a loan exceeds the principal amount, the bank usually classifies such a loan as a non-performing asset (NPA). In such cases, the bank may offer the defaulter the option of a one-time settlement where you can settle the loan through a small payment.

Though such a settlement reflects negatively on your credit score, this may be an option if you are in no position to repay the loan.

• Contacting the Loan Defaulter

The bank is expected to follow strict guidelines with regard to contacting the loan defaulter, particularly with respect to the timing and place of any such contact.

You should realize that it is within your right as a borrower to decide a particular place where the bank can contact you. If such a place has been decided and agreed upon, the bank must honor such an agreement. In the case that a place of contact has not been decided, the bank may contact you in your house.

The bank may also try to contact you in your workplace but only if it is unable to contact you at your house. Your privacy is of utmost importance and any violation of such privacy is a very serious breach of banking ethics.

To respect this privacy, the bank cannot contact a loan defaulter at a certain time or place if the defaulter has explicitly requested not to be contacted at a particular time or in a particular place.

As specified by IBA, banks are allowed to contact the defaulters through phone only during stipulated office hours, between 0800 hours and 2000 hours, unless the nature of your job requires contact at other time. Any such contact is to be recorded for future evidence, clearly showing the time, frequency and the content of such conversations.

• Period of Notice

The banks usually follow some guidelines to contact a defaulter after a default and this notice period for repayment usually varies with the type of loan.

However, for any loan, the bank has to inform the borrower of his/her dues with a legal notice before it can begin any proceedings against a defaulter. A minimum period of seven days is to be given by a bank before it can begin recovery proceedings against a defaulted loan.

• Repossession of Property

The Indian Banking Association has clear policy guidelines with regard to repossession of property to recover any debts. The sole portion of any such repossession to recover any outstanding debt and not to deprive the borrower of his/her property.

The bank can only take the possession of a property after following the due process of sending a legal notice and the bank must take reasonable care in ensuring the safety and security of an asset after recovering possession.

• The recovery process will involve a transparent valuation as per law and transparent sale. If your feel that your security is being undervalued, you can yourself contact potential buyers who you feel will offer a better price than the valuation of the bank and inform the bank about them.

• The bank can take legal steps to recover any outstanding balance from the defaulter after the sale and it also has a legal obligation to return any excess amount obtained through the sale after realizing all outstanding dues and related expenses. So, do not write off any property the moment it is repossessed and this is particularly useful to keep in mind when a property is pledged as a security in these days of soaring property prices.

• The repossession of security by banks as a way of recovering the loan is intended as a last resort and the banks are obliged to hand over the repossessed property back to the borrower if its dues are cleared in full at any time between the repossession and the sale of the security. In addition, if you notify the bank of genuine reasons which affected your ability to pay the installments in time, the bank may consider returning you the security after receiving the installments in arrears and if it is convinced of your ability to stick to the repayment timelines in future.

• Rights regarding Recovery Agents

Banks often employ specialized people for the recovery of loans called recovery agents and the recovery agents are expected to follow a strict set of rules and code of conduct.

• A person must also be authorized by the Indian Institute of Banking and Finance to act as a recovery agent and it is the duty of the bank to properly investigate any complaint against its recovery agents and it is essential that the bank posts the complete details of such agents on their websites. Such information should also be made available at the bank branches for the knowledge of all the customers and the bank will inform you if it has employed a recovery agent towards the recovery of your loan.

• All recovery agents employed by the bank must carry identity cards and authorization letter from the bank. The recovery agents must maintain your privacy and behave with you in a civilized manner, with any conversation being strictly limited to business matters. They can only contact your family if they are unable to contact you in any way and if they threaten you to tell your neighbors and co-workers about your defaulted loan, it is illegal and you have a legal right to complain to the bank.

• If you feel you are harassed by a recovery agent, you can complain to the bank and the bank has to redress your grievance within 30 days. If the complaint is not addressed to your satisfaction you can contact the banking ombudsman.

• It is true that any loan is a legal agreement which includes an obligation on your part to repay it. However, since it is a legal agreement, the process to recover it once you are unable to pay it as per agreement also has a legal framework to adhere to. A defaulter has his/her rights and the banks are expected to protect those rights.

• The official declaration of a ‘defaulter’ and initiation of recovery proceedings against someone varies depending on the type of loan and is supposed to give you sufficient time to prepare for any such case.

Irrespective of the type of the loan, the borrower always has a right to be treated humanely and any undue harassment, humiliation or breach of privacy of the borrower is a serious breach of the banking rules and ethics which are punishable by law.

• It is imperative to keep in mind that a loan comes with a legal as well as an ethical obligation to return it. However, such an obligation works both ways. Just as a borrower is supposed to return the money taken as a loan, a lender is also bound by certain laws and ethical practices it is bound to follow while taking any steps to recover such a loan. If one is facing difficulties in following the agreed upon timeline of returning a loan, the default tendency is to avoid making contact with the creditor institution.

However, such a step often further complicates the financial situation and makes the banks unsympathetic towards any genuine difficulties you might face. On the other hand, informing the banks of any genuine difficulties you are facing and about any unforeseen financial circumstances may make them consider your situations and offer you advice with regard to financial matters and/or restructure the loan to help you in the repayment process. Even a consultation with family and friends may help one in overcoming temporary problems of the cash crunch. Further, one might take the advice of professional credit counseling services in such cases.

Even in the case one fails to repay his/her loan, one still enjoys certain rights. The foremost of these rights is the protection from any harassment and humiliation and such ‘pressure tactics’ involving undue harassment has no place in the legal and ethical standard a lending institution is expected to follow. The creditors are supposed to respect the borrowers’ right to privacy and any recovery process has to follow a transparent and fair outline (as set by the relevant financial laws and guidelines issued by the Reserve Bank of India (RBI) and the Indian Banking Association (IBA)) and such guidelines guarantee a just and humane treatment of the defaulter.

What else do you think a loan defaulter can do to avoid embarrassment & pay the loan on time. Comment your views below and share the article.

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In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata describes and analyses the different nuances and features of the Real Estate (Regulation and Development) Act, 2016.

Introduction

The Rajya Sabha passed the Real Estate Regulator Bill, which will help regulate the sector and bring in clarity for both buyers and developers. The Real Estate (Regulation and Development) Act, 2016 is an Act of the Parliament of India which seeks to protect homebuyers as well as help boost investments in the real estate industry. The bill was passed by the Rajya Sabha on 10 March 2016 and by the Lok Sabha on 15 March 2016. The Act came into force on 1 May 2016 with 69 of 92 sections notified. The Central and state governments are liable to notify the Rules under the Act within a statutory period of six months.[1]

Key Features Of The Act 

• Real Estate Regulatory Authority: Under the Bill, the purchasers of real estate units from a developer would have a specialised forum called the “Real Estate Regulatory Authority” which will be set up within one year from the date of coming into force of the Act. In the interim, the appropriate Government (i.e., the Central or State Government) shall designate any other regulatory authority or any officer preferably the Secretary of the department dealing with Housing, as the Regulatory Authority. The promoter has to register their project with the Regulatory Authority before booking, selling or offering apartments for sale in such projects. In case a project is to be promoted in phases, then each phase shall be considered as a standalone project, and the promoter shall obtain registration for each phase.
• The Registration application must disclose the following:[2]
  • Details of the promoter (such as its registered address, type of enterprise such proprietorship, societies, partnership, companies, competent authority);
  • A brief detail of the projects launched by the promoter, in the past five years, whether already completed or being developed, as the case may be, including the current status of the projects, any delay in its completion, details of cases pending, details of type of land and payments pending;
  • An authenticated copy of the approval and commencement certificate received from the competent authority and where the project is proposed to be developed in phases, an authenticated copy of the approval and commencement certificate of each of such phases;
  • The sanctioned plan, layout plan and specifications of the project, plan of development works to be executed in the proposed project and the proposed facilities to be provided thereof and the locational details of the project;
  • Proforma of the allotment letter, agreement for sale and conveyance deed proposed to be signed with the allottees;
  • Number, type and carpet area of the apartments and the number and areas of garages for sale in the project;

• 70% of Realisation from Allottees in a separate bank account: This Act obliges the developer to park 70% of the project funds in a dedicated bank account. This will ensure that developers are not able to invest in numerous new projects with the proceeds of the booking money for one project, thus delaying completion and handover to consumers.
• Acceptance or Refusal of Registration: Upon receipt of an application by the promoter, the Regulator Authority shall grant or reject the registration within a period of 30 days. Upon being granted a registration, the promoter will be provided with a registration number, including a login Id and password for accessing the website of the Regulatory Authority, to create his web page and to fill in the details of the proposed project. If the Regulatory Authority fails to grant or reject the application of the promoter within the period of 30 days, then the project shall be deemed to have been registered.
• Carpet Area: Under the Bill, developers can sell units only on carpet area, which means the net usable floor area of an apartment. This excludes the area covered by the external walls, areas under services shafts, exclusive balcony or verandah area and exclusive open terrace area, but includes the area covered by the internal partition walls of the apartment.
• Refund of amount in case of delay in handing over possession: In case the promoter is unable to hand over possession of the apartment, plot or building to the allottee (i) in accordance with the terms of the agreement of sale; or (ii) due to discontinuance of his business as a promoter on account of suspension; or (iii) revocation of his registration or for any other reason, then the promoter shall be liable, on demand being made by the allottee, to return the amount received by him from the allottee with interest and compensation at the rate and manner as provided under the Act. This relief will be available without prejudice to any other remedy available to the allottee.
• Real Estate Appellate Tribunal: It will help establish state-level Real Estate Regulatory Authorities (RERAs) to regulate transactions related to both residential and commercial projects and ensure their timely completion and handover. Appellate Tribunals will now be required to adjudicate cases in 60 days as against the earlier provision of 90 days and Regulatory Authorities to dispose of complaints in 60 days while no time frame was indicated in earlier Bill.[3] The Appellate Tribunal shall have the same powers as a civil court and shall be deemed to be a civil court. An appeal against the order of the Appellate Tribunal may be filed before the jurisdictional High Court within a period of sixty days from the date of communication of the decision or order of the Appellate Tribunal.

Protection Of Buyers

This law makes it mandatory for developers to post all information on issues such as project plan, layout, government approvals, land title status, subcontractors to the project, the schedule for completion with the State Real Estate Regulatory Authority (RERA) and then in effect pass this information on to the consumers. [4] The current practice of selling by ambiguous super built-up area for a real estate project will come to a stop as this law makes it illegal. Carpet area has been clearly defined in the law. Currently, if a project is delayed, then the developer does not suffer in any way. Now, the law ensures that any delay in project completion will make the developer liable to pay the same interest as the EMI being paid by the consumer to the bank back to the consumer. The developer cannot make any changes to the plan that had been sold without the written consent of the buyer.

Limit On Receipt Of Advance Payment

A promoter shall not accept a sum more than 10% percent[5] of the cost of the apartment, plot, or building, as the case may be, as an advance payment or an application fee, from a person without first entering into a written agreement of sale with such person and register the said agreement of sale, under any law for the time being in force.

Enforcement and Applicability of The Act

The Act under S.84 contemplates that within six months of the RERA Act being enforced, State Governments shall make rules for carrying out the provisions of Act. The said Rules are to be notified by the respective State Government.

On October 31, 2016, Central Government, released the Real Estate Regulation and Development Rules, 2016, vide Notification by the Ministry of Housing & Urban Population (HUPA). The Rules so issued by the Central Government apply to the five Union Territories without Legislature viz., Andaman & Nicobar Islands, Dadra & Nagar Haveli, Daman & Diu, Lakshadweep and Chandigarh. For Delhi, the Ministry of Urban Development is in the process of finalisation of rules while the state governments have to notify the rules on their own. States like Maharashtra, Andhra Pradesh, Karnataka and Tamil Nadu tag behind in the implementation of the Rules, with their Rules still not notified. The saving grace being that they are at the advanced stages of finalising the Rules. Maharashtra has issued Rules for consultation also.

Penalty In Case Of Non-Compliance

Penal provisions have been prescribed under the Act against the promoter in the event of any contravention or non-compliance of the provisions of the Act or the orders, decisions or directions of the Regulatory Authority or the Appellate Tribunal which include the following:

• If promoter does not register its project with the Regulatory Authority – the penalty may be up to 10% of the estimated cost of the project as determined by the Regulatory Authority;
• In case the promoter provides any false information while making an application to the Regulatory Authority or contravenes any other provision of the Act – the penalty may be up to 5% of the estimated cost of the project or construction.
• The maximum jail term for a developer who violates the order of the appellate tribunal of the RERA is three years with or without a fine.

Conclusion

The Bill intends to increase transparency and accountability in the real estate sector by providing mechanisms to facilitate and regulate the sale and purchase of commercial and residential units/projects and timely completion of projects by the promoters.

References:

[1]“Real Estate Bill is an act now, may protect home buyers”. Economic Times. Retrieved 2 May 2016.

[2] India: Salient Features Of The Real Estate (Regulation And Development) Bill 2016 Article by Sudip Mullick and Amit WadhwaniKhaitan & Co
[3]“Big cheer for homebuyers! Rajya Sabha passes Real Estate Bill”, The Economic Times, 10 March 2016

[4] ECONOMICTIMES.COM|Mar 10, 2016, 09.36 PM IST

[5]G. Shyam Sundar writes on the impact of the Real Estate Regulation and Development Act, 2016

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In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata describes the registrations required for a law firm in India. 

Registration Of A Law Firm

The first thing that a person requires to set up a Law firm is that he be at least 21 years old and a Law degree from any University of India or a Foreign University, recognised by the Bar Council of India. Every state has a Bar Council. After getting a degree, you need to register yourself with any of the State Bar Councils of India.

What Do You Need To Consider Before Registration?

There are some factors which a lawyer needs to take into consideration before he plans to set up a Law Firm and wants to register it. These factors are considered essential from the lawyer’s point of view as they describe the work, Management and establishment of the Firm.

• Limited Liability: Limited Liability Partnership has a benefit over Sole Proprietorship because in an LLP the personal Assets of the Partners cannot be used to pay off the debts of the business, but in the case of a Sole Proprietorship, the individual’s personal assets are used to repay the debts of the business.
• An number of lawyers and their roles: If a sole proprietorship is chosen by a lawyer then all the functions of management, decision making, financing, record keeping, tax bearing shall be done by the single person but if there are partners in a firm then work would be assigned as per the specialization and tax would be borne by all the partners.
• Financing: In a sole Proprietorship, there is a single person who is the owner, all funds are raised by him alone, and even the loan taken by the sole proprietor for setting up the firm has to be repaid by him alone, and his personal assets can also be used for settling the loan amount. Hence the entire burden of taking the loan and repaying it back lies entirely on the sole proprietor and his personal assets. In a case of Partnership and LLP, the personal assets of person cannot be sold for repaying back the loan amount.
• Management: If a Firm is a sole Proprietorship then the entire management of the firm would be taken up by the single person, he shall take his own decisions and shall act as per that only. If there are two or more partners in the firm, then all the Partners can take give their personal opinions as different people are specialised in different fields. Hence opinions taken by different lawyers shall lead to specialisation of work, but at the same time, this can also lead to conflicting decisions.
• Taxes: One of the biggest concerns for every business entity is how it will be taxed. If the Firm is a Sole Proprietorship firm, then one must report all business income or losses on your personal income tax return. But if the firm is a Partnership firm or an LLP then a Flat Tax rate of 30% is levied on partnership firm.

Types of Legal Structures and their Registration

• Sole Proprietorship
• Partnership
• Limited Liability Partnership

Sole Proprietorship

Sole Proprietorship is the simplest and a straightforward form of structure as the firm is managed and operated by a sole proprietor, who does not get the benefit of Limited Liability as in case for the recovery of the Loan amount the personal assets of the sole Proprietor can be used and in addition to this the Income from the business is reported on your personal income tax return.

There is no formal procedure for registration of a sole proprietorship Law Firm in India; this can be done only through the opening of a bank account in the name of the Proprietorship Firm or obtaining licenses required for conducting the business. If you want to open a current bank account, you will need couple of things –

1. Service tax registration.
2. Letter from your CA regarding the nature of your business.
3. Letterhead with the firm’s name and address.
4. Stamp in the name of the Proprietorship.
5. Address and ID Proof of the proprietor. If proprietorship address is different, then you will also need office premise address proof.

Partnership

The partnership consists of two or more people who own and run the firm. The partnership may be general or limited and is governed by an agreement that sets forth the partners’ responsibilities and obligations. Partnership firms in India are governed by the Indian Partnership Act, 1932. While it is not compulsory to register your partnership firm as there are no penalties for non-registration.

A partnership firm can be registered whether at the time of its formation or even subsequently. You need to file an application with the Registrar of Firms of the area in which your firm is located. Application for partnership registration should include the following information:

• Name of the firm
• Name of the place where the firm is situated
• Date of partners joining the firm
• Full name and permanent address of partners.
• Duration of the firm

Ensure that the following documents and prescribed fees are enclosed with the registration application:

• Application for Registration in the prescribed Form – I
• Specimen of correctly filled Affidavit
• Certified copy of the Partnership deed
• Proof of ownership of the place of business or the rental/lease agreement thereof

Once the Registrar of Firms is satisfied that the application procedure has been duly complied with, he shall record an entry of the statement in the Register of Firms and issue a Certificate of Registration. The Register of Firms maintained at the office of the Registrar contains complete and up-to-date information about each registered firm. This Register of Firms is open to inspection by any person on payment of the prescribed fees

Any person interested in viewing the details of any firm can request the Registrar of Firms for the same, and on payment of the prescribed fees, a copy of all details of with Firm registered with the Registrar would be given to the applicant

Limited Liability Partnership

LLPs are a very common way for partnerships of all sizes to operate in a more protected manner than a general partnership. The advantage of incorporating an LLP is that it would protect your personal assets in the event of a dispute. Most law firms have moved to this model after it was introduced in India. The name indicates, Limited Liability Partnership limits the liabilities of its partners to their contributions to the business and also offers each partner protection from the negligence, misdeeds or incompetence of the other partners.

To register an Indian LLP, one has to first apply for a Designated Partner Identification Number (DPIN). Then one needs to acquire Digital Signature Certificate (DSC). As soon as the DSC is applied, then a unique name for the LLP Firm would be asked for, these will be used to file for incorporation with the MCA. The Certificate of Incorporation will be approved at the end of this process. Thereafter, it is a need to get the LLP name approved by the Ministry of Corporate.

Every LLP needs a registered Permanent Account Number (PAN) and Tax Account Number (TAN).

Conclusion

While Registration is not mandatory but registering, a firm generates a few rights on the Firm and on its Partners, which a non-registered firm does not have. Each structure has a different procedure for Registration, and essential factors need to be taken into consideration while choosing the Legal structure of a Firm.

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In this blog post, Gurshabad Singh Sandhu, a student from Rayat and Bahra University School of Law, Mohali and pursuing Diploma in Entrepreneurship Administrative and Business Law from NUJS, Kolkata analyses the legal rights of an individual who is unable to pay a credit card or loan EMI. 

Equated Monthly Instalment – (EMI)

It is a fixed Monthly Installment which is made by the Borrower of the Loan to the Lender. EMI is paid to set off both the Interest and the Principal Amount. The benefit of an EMI for borrowers is that they know precisely how much money they will have to pay towards their loan each month,[1] which helps a person to keep a check on its expenses and savings, hence making their personal budgeting process easier.

Consequences of Non-Payment of EMI

When the Credit card is chosen as the mode of Payment, this would mean that the person using the Credit Card might not be having enough Cash in hand to spend. Using a credit card would mean that the person using it shall be responsible when it comes to credit card payments i.e. making the due payment before the due date. Irregular payments or failing altogether to make payments of your credit card dues can have consequences detrimental to your financial plans and management. The following consequences may arise due to nonpayment of Loan or EMI:

• Hike in the interest rate: If you have already made a payment default on your credit card EMI and continue to make purchases from the card in spite of that, the interest rate on services like cash withdrawals or credit card EMIs might be hiked.
• Loss of credit limit: This is one of the biggest consequences where excessive defaults in EMI results in a reduction of credit limit which restricts your spending power for future transactions.
• Credit Score gets Affected: The defaults that are made are updated by the banks to CIBIL which negatively affects the credit score. A knockdown effect of your credit score getting affected is that any current or future applications you make for new credit cards or loans might be rejected. Specifically, in the case of loans, a bad credit score can result in loans being offered to you at interest rates which are much higher than the loan rates in the market at the time.
• The Hassle to deal with Recovery Agents: If you fail to make payment on your credit card’s due payment for 90 days, the case gets forwarded to the banks which will regularly follow up with you for recovering the credit card due to payment and shall cause a lot of Harassment.

What can be done?            

Any Person caught in this trap cannot shift his liability hence the appropriate way is that the person shall defend himself with a reason that why he could not pay his EMIs on time. The reason could be anything; he might have lost his job, an emergency would have arisen which consumed all the savings, expenses on education could have been huge or some other urgent requirement. The person can choose any of the following options:

• Defer the payments: An EMI holiday for a few months by informing the bank about the Inability to pay. A situation of this nature can occur during a job change or a temporary loss of business or employment. Banks can accept these as genuine reasons but may impose penalties for the deferment. 
• Reducing your EMI: If you are struggling with the EMI amount, consider having the monthly EMI reduced. You can approach the lending institution and request them to increase your loan tenure. This would reduce your monthly EMI amount though you may end up paying a higher amount in interest. Once your financial situation is sturdier, you should try to increase the EMI amount again.
• Restructuring the loan: If a borrower is unable to maintain the terms and conditions of his loan, he can request the lender to relax the same. This may lead to a reduction of charges, lowering of interest rate, lengthening of the loan tenure, a moratorium on interest, etc.
• Refinancing your loan: If your problem is one where the EMI is too high, due to either an increase in overall interest rates or any other matter personal to you that reduces your bank balance or a combination of these factors and others, then what the bank will do is restructure your loan. For Example, If you are currently paying Rs. 5,000 per month for N years and this is too high; the bank might offer you an EMI lesser than Rs. 5,000 per month, for a little more than N years. So your EMI goes down, giving you some breathing room but the payments you now make will eventually cost you more regarding total money repaid.

Minimum Amount Due (MAD) [2]

An alternate method which a person can adopt is Minimum Amount Due in this the person has to pay the minimum amount to the bank/credit card company by the deadline this is done to keep the account regular and avoid payment of any late payment fees.[3]

Payment of minimum amount due ensures that you get away with paying only the interest. This is done so that the bank does not report the account as irregular to the credit bureaus. If your credit card account is reported irregular, your credit history will be adversely affected. This can be a problem if you are planning to take a loan shortly.

Bankruptcy

Bankruptcy is the legal status of an individual or company, which is unable to pay off outstanding debt. It is a status that can only be granted by the court.

Personal bankruptcy is considered a last resort for people who are caught in the trap of Default Payment although going bankrupt is an effective way to wipe out most or all debt obligations; there are long-lasting consequences which the person who is declared bankrupt has to face in his near future.[4] When you’re bankrupt, your non-essential assets (property and possessions) and excess income are used to pay off your creditors (those you owe money to). At the end of the bankruptcy period, most debts are ‘discharged’ (cancelled). If the court satisfies their claim, it appoints a financial manager, an intermediary between the credit institution and the debtor. He evaluates the borrower’s income and property and creates a plan for restructuring the debt that the court later approves.

The restructured debt may be significantly less than the initial one and it will be easier for the debtor to pay it off. Additionally, creditors do not have the right to demand the payment of loans from individuals who file for personal bankruptcy while the case is still in progress.

Insolvency

The condition of having more debts than total assets, which might be available to pay them, even if the assets were mortgaged or sold. A determination by a bankruptcy court that a person or business cannot raise funds to pay all of his debts. The court will then discharge some or all of the debts, leaving those creditors holding the bag and not getting what is owed them. The supposedly insolvent individual debtor, even though found to be bankrupt, is allowed certain exemptions, which permit him/her to retain a car, business equipment, personal property, and often a home as long as he/she continues to make payments on a loan secured by the property.

Conclusion

Hence, if a person is proved to be Bankrupt or Insolvent by the court then in that case it shall be decided by the Court that the Person cannot pay the Interest or the EMI, and hence the court shall waive off the debts and EMI or may in another scenario provide the extension of time to the person so that he can pay at least the Minimum Amount Due, which would not make the Person’s account Irregular.

[1] Investopedia

[2] Article on ‘Why Paying Credit Card ‘Minimum Payment Due’ Is a Bad Idea DEEPESH RAGHAW ,SEPTEMBER 22, 2015

[3] How to Eliminate Credit Card Debts By Vera Gibbons

[4] Article by AL Krulick “America’s Debt Help Organization”

[5] Chapter 7 Bankruptcy

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In this blog post, Dheerajendra Patanjali, pursuing M.A. in Business law from NUJS, Kolkata, explains how to register complaints with vigilance department against a government officer.

In the present era of the welfare state, most of the decisions are taken by the officers appointed by the government – colloquially known as government officer – and hold a position in various capacity.

• Vigilance aims at ensuring that decisions are taken by the officers and employees in the best interest and without being unduly influenced by personal favors or fears and other considerations. Government vigilance through various agencies is intended to deal with corruption in the public services to give an honest and clean administration to the people.

Further, effectively addressing public corruption is essential for sustainable realization of economic and social rights.

The fruitfulness of vigilance department/agencies can be optimally utilized only if an aggrieved person or person in possession of substantial information of corruption knows to access the department/agencies in a prescribed way.

• The detailed modes of accessing the departments/agencies have been described in Central Vigilance Act 2003 and connected manually at the central level and various subservient state legislation/office memo for state level organizations.

The Regulatory Set-Up

In late 60’s, government set up a committee – committee on prevention of corruption, under the chairmanship of Mr. K Santhanam (popularly known as Santhanam Committee) to suggest the measures to contain the corruption in the government organization.

Based on the recommendation of the committee, government of India by a resolution dated 11.2.1964 set up the Central Vigilance Commission to act and advise government on anti-corruption measures.

The commission got fresh teeth consequent upon the judgment of the Hon’ble Supreme Court in the famous case of Vineet Narain vs. Union of India[1].

In this case, apex court laid down guidelines to ensure independence and autonomy of Central Vigilance Commission (CVC), intended to be free from executive control or interference. Subsequently, the CVC Bill was passed by both houses of Parliament in 2003 and the President gave its assent on 11th September 2003.

Thus, the Central Vigilance Commission Act, 2003[2] came into effect from that date. The Act exclusively deals with the matters of corruption, bribery, misconduct and misappropriation etc. involving public servants of central government and central PSU.

Further, the state government has also established various vigilance establishments through various state enactment/government memo. These state level enactments/memos provide for the constitution, superintendence and administration of the vigilance establishment at the state level.

Usually, such Vigilance Establishment performs functions as follow:

• Investigation/enquiries into allegations involving government servants and public servants including those working in the public sector undertakings of the state government.

• Criminal misconduct of public servants as defined in PC Act 1988.

• Dishonest or improper conduct or abuse of power by government servants.

• Misappropriation of public funds, misuse of public money or property amassment of wealth disproportionate to the known sources of income etc.

Functioning of Vigilance Department

At Central level, the CVC Act,2003 mandates the appointment of Chief vigilance officers in the secretariat departments and vigilance officers in the directorates, public enterprises and autonomous bodies to play a very pivotal role in the task assigned to the commission.

Further, primary responsibility for maintenance of purity, integrity and efficiency in the organization vests in the secretary of the ministry or the head of the department or the chief executive of the public sector enterprises.

Such authority, however, is assisted by an officer called the Chief Vigilance Officer (CVO) in the discharge of vigilance functions. The CVO acts as a special assistant/advisor to the chief executive and reports directly to him in all matters relating to vigilance. He heads the vigilance division of the organization concerned and provides a link between his organization and the central vigilance commissioner and his organization and the Central Bureau of Investigation.

Additionally, it has been provided that big departments/organizations should have a full-time CVO, i.e. he should not be burdened with other responsibility.

• If it is considered that the CVO does not have full-time vigilance work, he may be entrusted with such functions that serve as input to vigilance activity, e.g. audit and inspections[3].

• The work relating to security and vigilance, however, should not be entrusted to the CVO as in that case, the CVO would find very little time for effective performance of vigilance functions.

• Furthermore, in order to be effective, he should normally be an outsider appointed for a fixed tenure on deputation terms and should not be allowed to get absorbed in the organization either during the currency of deputation period or on its expiry.

Thus, central vigilance commission acts as the apex organization for exercising general superintendence and control over vigilance matters in administration and probity in public life as far as government servants working at the disposal of central government or employee of central PSU are concerned.

At the state level, state government has enacted various legislation/passed government memos for the establishment of vigilance establishment basing on the central modal and duly suiting the needs of state governments for the public servants including those working in the public sector undertakings of the state government[4].

The organizational setups and working modalities in state level vigilance establishment are more or less same as in CVC however, the jurisdiction and working modalities vary.

Filing of Complaint with Vigilance Department

Before dwelling into the various modes of filing complaint with vigilance department, it is important to recognize that the right of a private citizen to file a complaint against a corrupt public servant is a very important and vital right.

When a private citizen approaches a vigilance establishment against a corrupt public servant, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society.

When a private citizen approaches a vigilance establishment against a corrupt public servant, what is at stake is not only a vindication of personal grievance of that citizen but also the question of bringing orderliness in society. This requires special recognition in the whole system.

Further, any petitions containing allegations of corruption and malpractices by government servants are usually addressed to one of the three authorities, viz –

1. The government
2. Head of the department or other administrative officers
3. The directorate of vigilance and anti-corruption[5].

We may categorize the filing of complaints in the following broad category for the sake of brevity and to make the report more useful as under –

Complaints Against the Officials Working in the Central Government Department’s Service[6]

Information about corruption, malpractice or misconduct on the part of public servants may flow to the vigilance authorities from any of the following sources:

• Complaints received from employees of the organization or from the public-

In this process, complaint is received by the vigilance department in two ways –

• From the employee who is working in the same organization and has something to complain about.

• The next method for receiving a complaint is direct from public, duly disclosing the nature of alleged offenses.

• Departmental inspection reports –

Next way to receive the complaint against government officials is derived from the findings of departmental inspections report. Based on the adverse findings in the departmental inspection a complaint is suitably lodged.

• Scrutiny of annual property statements –

A complaint is lodged basing on the grave anomaly in the submitted annual property statements. In this way, the assets declarations of earlier years are duly examined.

• Scrutiny of transactions reported under the Conduct Rules –

Employees who are bound by the conduct rules of the department may face charge against him if something adversely is observed as far as conduct rules are concerned.

• Reports of irregularities in accounts detected in the routine audit of accounts –

Report of irregularities, e.g. tampering with records, over-payments, misappropriation of money or materials etc may also cause vigilance department in action.

• Audit reports on government accounts and on the accounts of public undertakings and other corporate bodies etc –

Audit reports of the organization may cause vigilance department in action against an employee if some adverse opinion is observed.

• Reports of parliamentary committees like the estimates committee, public accounts committee and the committee on public undertakings –

This is another source of registering.

• Complaints and allegations appearing in the press etc–

Vigilance department may come into action taking cognisance of the report appearing in the press.

• Intelligence gathered by agencies like CBI, local bodies etc –

Inputs gathered by the investigating agency may lead to registration of vigilance complaint.

• Complaints about the Officials who are Working under State Government

Complaints about state government employee placed at the disposal of state government are made with state level vigilance establishment and modes of accepting complaint are almost similar with the modes prevalent against the central level employee and mentioned above.

Although, at a certain establishment, various riders are applicable with respect to monetary limit or grade of the employee but the ways of entertaining complainant and acting thereon are broadly similar.

However, in respect of All-India Service Officers, heads of departments and collectors, in which case the petitions will invariably be forwarded to the chief secretary to the government straightaway, for necessary action, without conducting any form of enquiry[7].

• Complaints Against the Officials of Government Undertaking (Central)

An employee of government undertakings, PSU, corporation or regulatory bodies are also subject to the jurisdiction of central vigilance commission and the modes of acceptance of complaints are similar to that of the employee of the central government.

Although, the charges against the employee of a lower grade is primarily dealt in the organizational set up itself while charges against higher officials are directly dealt by the central vigilance commission.

The Central Vigilance Manual specifically prescribes the way in which a complaint may be received.

A complaint against an employee of a public sector enterprise or an autonomous organization may be received in the administrative ministry concerned and also in the central vigilance commission.

• Such complaints will normally be sent for inquiry to the organization in which the employee concerned is employed and should be entered into the vigilance complaints register of that organization only.

• Such complaints should not be entered in the vigilance complaints register of the administrative ministry in order to avoid duplication of entries and inflation of statistics except in cases in which, for any special reason, it is proposed to deal with the matter in the ministry itself without consulting the employing organization[8].

• Complaints Against the Officials of Government Undertaking (State)

Complaints about the officials who are working under public undertakings corporations and all the companies of state government registered under the Indian Companies Act come under the preview of state level vigilance establishment/commission. The mode of acceptance and dealing of received complaint is similar to that of the central level organization.

Processing of Complaints

The processing of received complaint – both at the central level and the state level, duly taking into account the place of working of the employee against whom charges are made – undergoes various levels of scrutiny.

Ordinarily, each complaint will be examined by the chief vigilance officer to see whether there is any substance in the allegations made to look into.

• Where the allegations are vague and general and prima facie un-verifiable, the chief vigilance officer may decide, with the approval of the head of his department, where considered necessary, that no action is necessary and the complaint should be dropped and filed.

• Where the complaint seems to give information definite enough to require a further check, a preliminary inquiry/investigation will need to be made to verify the allegations so as to decide whether or not the public servant concerned should be proceeded against departmentally or in a court of law or both.

• If considered necessary, the chief vigilance officer may have a quick look into the relevant records and examine them to satisfy himself about the need for further inquiry into the allegations made in the complaint.

Treatment of Anonymous Complaint

It is important to note that although there is a robust mechanism provided in the CVC Act and various supporting manuals are released by the vigilance department, the treatment of anonymous complaint stands at completely different footings.

The CVC in its manual specifically provides that –

No action is to be taken by the administrative authorities, as a general rule, on anonymous/pseudonymous complaints received by them.

When in doubt, the pseudonymous character of a complaint may be verified by enquiring from the signatory of the complaint whether it had actually been sent by him.

If he cannot be contacted at the address given in the complaint, or if no reply is received from him within a reasonable time, it should be presumed that the complaint is pseudonymous and should accordingly be ignored.

However, if any department/organization proposes to look into any verifiable facts alleged in such complaints, it may refer the matter to the commission seeking its concurrence through the CVO or the head of the organization irrespective of the level of employees involved therein[9].

That is to say, if a complaint, notwithstanding its procedural completeness, is made anonymously then, the competent authority is not supposed to take cognisance mandatorily over it.

On the contrary, manual suggests that such complaint is not required to be acted upon unless the commission or other competent authority believes merit in the complaint. If competent authority feels so, we may order a further examination of the complaint but the anonymous complaint in itself does not set the vigilance mechanism in action suo moto.

Need for the Previous Sanction for Prosecution

It is important to note that Prevention of Corruption Act 1988[10] prescribes that previous sanction is necessary to proceed against the public servant. As per the provisions of the Act, a sanction is to be given by the government or the authority which would have been competent to remove the public servant from his office at the time when the offense was alleged to have been committed. However, there have been several instances of delayed sanction even in befitting cases of prosecution.

This sorry state of affairs made Justice Ganguly to observe – in the famous case of Dr. Subramanian Swamy vs Dr. Manmohan Singh and others – that –

“…..in my judgment the power under Section 19 of the P.C. Act must be reasonably exercised. In my judgment, the Parliament and the appropriate authority must consider restructuring Section 19 of the P.C. Act in such a manner as to make it consonant with reason, justice and fair play[11]….”.

Court went on further in the same case and tried to fix a time limit for granting sanction by observing that –

“All proposals for sanction placed before any sanctioning authority empowered to grant sanction for the prosecution of a public servant under section 19 of the P.C. Act must be decided within a period of three months of the receipt of the proposal by the concerned authority……At the end of the extended period of time limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution[12]…”

Tracking Status of Complaints

A complaint lodged by a complainant, duly following the prescribed procedure, can be traced at any time as for the complaints sent for investigation & report the commission conveys a key number to the complainant by which he/she can see the status of his complaint on the web-site.

However, while seeing the status on the website, the complainant should keep the following time frame in mind –

“Generally reports on the complaints sent by the commission for investigation are expected by the commission within a period of three months.

• Subsequent disciplinary action by the concerned disciplinary authority takes around six months.

• Imposition of penalty takes a further period of three to six months.

Commission will not entertain further correspondence in the matter but will ensure that the complaints are investigated and action is taken to its logical conclusion[13].”

Complaints which are sent for necessary action can be followed-up by the complainant with the respective organizations. CVC does not deal with such complaints further.

Need for More Avenues for Filing Complaint

Above analysis of the various modes of filing complaint with vigilance department suggests that although a wide way of submitting complaints by the interested parties have been provided, however, leveraging technological advancement in receiving complaint may serve the purpose effectively.

For example, vigilance department of Air India[14] has come out with a unique solution, duly leveraging modern technology and allowing the aggrieved person to register the complaint by calling on a dedicated phone line.

Similar innovative ways of accepting complaints are required from other organizations and vigilance establishments. Modern information technology can help in this regard immensely. Such steps will not only help poor aggrieved to file the complaint easily but also will make the task of scrutiny and processing of complaint easy for vigilance establishments.

Action Against Persons Making False Complaints

If a complaint against a public servant is found to be malicious, vexatious or unfounded, it should be considered seriously whether action should be taken against the complainant for making a false complaint.

• Under Section 182 of the Indian Penal Code, a person making a false complaint can be prosecuted. Section 182 reads as follows:

“Whoever gives to any public servant any information which he knows or believes to be false, intending thereby to cause, or knowing it to be likely that he will thereby cause, such public servant:

• To do or omit anything which such public servant ought not to do or omit if the true state of facts respecting which such information is given were known by him.

• To use the lawful power of such public servant to the injury or annoyance of any person shall be punished with imprisonment of either description for a term which may extend to six months or with fine which may extend to one thousand rupees, or with both.

• Further, Under section 195(1)(a) CrPC, a person making a false complaint can be prosecuted on a complaint lodged with a court of competent jurisdiction by the public servant to whom the false complaint was made or by some other public servant to whom he is subordinate.

Thus, there is a robust mechanism to protect government servant from being harassed unnecessarily by filing a false and frivolous complaint. Such false and frivolous filing results into setting relevant criminal laws in motion against the complainant.

Conclusion

Highest standard of a professional conduct and ethics is the greatest asset of all the public functionaries. The cumbersome task of eliminating/regulating the cancer of corruption has remained to be major concern.

To achieve this goal, various Vigilance Establishment, both at central and state level has been established. The vigilance establishments have been constituted for the purpose of enquiring into the allegations or complaints against the government servants falling under their jurisdiction.

Of late, it is felt that the process adopted and the methodology used, although very exhaustive in nature, by these establishments does not yield quick and effective results. These cells have not been able to achieve the desired deterrent effect and earn confidence of the litigating public.

Furthermore, to approach the vigilance establishments and set it into motion is also a crucial task as not all complainants are blindly entertained by these organizations. These organizations take into account only those complaints that fulfill the criteria so prescribed.

Additionally, innovative ways of accepting complaints are required to be devised by the organizations and vigilance establishments. Modern information technology can help in this regard immensely. Such steps will not only help poor aggrieved to file the complaint easily but also will make the task of scrutiny and processing of complaint easy for vigilance establishments.

I hope the article helped you to get in-depth knowledge about how to file complaint with the vigilance  department against a government official. Drop a comment below & feel free to share.

References –

[1] Vineet Narain vs. Union of India, CWP 340-343 Of 1993
[2] (Act No.45 Of 2003)
[3] Central Vigilance Manual, Vol-1, 6th Ed. At Page No 13, CVC-New Delhi
[4] Handbook for Vigilance Officer, retrieved from http://apvc.ap.nic.in/HandbookforCVO-VOs.pdf on 27.11.2016
[5] Central Vigilance Manual, Vol-1, 6th Ed. At Page No 27, CVC-New Delhi
[6] Central Vigilance Manual, Vol-1, 6th Ed. At Page No 26, CVC-New Delhi
[7] Handbook for Vigilance Officer, retrieved from http://apvc.ap.nic.in/HandbookforCVO-VOs.pdf on 27.11.2016
[8] Central Vigilance Manual, Vol-1, 6th Ed. At Page No 27, CVC-New Delhi.
[9] Central Vigilance Manual, Vol-1, 6th Ed. At Page No 29, CVC-New Delhi
[10] S 19, Prevention Of Corruption Act-1988
[11] Dr. Subramanian Swamy vs Dr Manmohan Singh And Others Civil Appeal No.1193 Of 2012, Page 61
[12] Dr. Subramanian Swamy vs Dr Manmohan Singh And Others Civil Appeal No.1193 Of 2012, Page 63
[13] Http://Www.Cvc.Nic.In/Faq.Pdf, Retrieved On 24.11.2016
[14] Http://Vigilance.Airindia.In/Hcompl.Aspx , Retrieved On 24.11.2016

The post How to Register Complaints with Vigilance Department Against Government Officer appeared first on iPleaders.

In this blog post, Dipti Soni, pursuing M.A. in Business law from NUJS, Kolkata, tells if casinos are legal in India or not.

What is Gambling

Dealing in goods and services using some skills for earning a reasonable and expected monetary return forms the regular course of any transaction or business activity. But dealing in money and its kind using very little or no skill and relying more on luck for earning unreasonable and unexpected monetary returns can be termed as ‘Gambling’.

What is a Casino

A Casino can be simply defined as a public room or building where gambling games are played.

What is The Central Gambling Law

In India, the Public Gambling Act of 1867 prohibits running or being in charge of a public gaming house or a ‘Casino’. The penalty for breaking this law is a fine of Rs.200 or imprisonment of up to 3 months.

Additionally, this Act prohibits visiting gambling houses. The penalty for visiting a gambling house is a fine of Rs.100 or imprisonment of up to one month.

What Are the Individual State Laws in India

However, gambling is a state subject in India and only states are entitled to formulate laws for gambling activities within their respective states. Currently, out of 29 states and 7 Union Territories, only 3 of them allow casinos as legal.

Which States in India Allow Casinos

• GOA 

Until 1999, land-based casinos were outlawed in all Indian states. Goa was the first Indian state to permit casino gaming. Other states in India have followed Goa’s lead in introducing casinos to encourage tourism.

There are 10 casinos in Goa, out of which six are land based and four are floating casinos that operate on the Mandovi River.

The floating casinos in Goa are –

• Casino Deltin Royale

• Casino Deltin Jaqk

• Casino Pride

• Casino Pride 2

In Goa, Casinos are taxed at the rate of 10%.

In summer 2012, the Goa government began the process of drafting comprehensive casino legislation.

The aim of the new law is to address labor issues, standardize equipment testing processes and introduce mechanisms to track the number of casino patrons. The first of these laws were implemented in winter 2013 when anti-money laundering measures were rolled out.

In December 2015, the Home Department of India drafted a new set of laws that seek to ban local residents visiting casinos, raise the gambling age to 21 and require identification to be presented upon entry to a casino. The bill requires approval by the Goa government before it is implemented in whole or in part. It is expected to go into effect in 2016.

• Daman & Diu

An onshore casino has been launched in the Union Territory of Daman. The largest casino in the entire country of India is Deltin Daman Casino which is located in Daman.

According to the Goa, Daman and Diu Public Gambling Act, 1976, casinos can be set up only at five-star hotels or offshore vessels with the prior permission of the government.

• SIKKIM 

There are two casinos in Sikkim – one is called Casino Sikkim and the other is Casino Mahjong. News reports also suggest that Visakhapatnam is also being looked on as the next casino destination.

What Are The Requisites to Open a Casino in Goa or Daman-

As per the Goa, Daman and Diu Public Gambling Act,1976, the following are utmost essential –

• Casinos can be set up only at five-star hotels or offshore vessels with the prior permission of the government.

• As per the recent amendment, the casino operators have to shell out Rs 5 crore for running casinos instead of the earlier license fee of Rs 1 crore.

Apart from the above two major factors, the applicants have to abide by other formalities as specified in the Act.

The Goa government has received many applications on this but is going slow considering political and social aspects.

Are Casinos Coming Up in Coastal Cities in Karnataka

Taken from a news report by ‘ timesofindia.indiatimes.com ‘, now it’s clear that the Karnataka tourism department is pushing a proposal to promote offshore casinos and cruise arguing it will boost tourism and allow the government to earn revenue and generate jobs.

It has suggested the state to allow offshore casinos which could operate from a yacht off the coast where entry is restricted to foreign tourists.

If the venture turns out to be successful then the government will consider similar casinos in Belekeri, Malpe, Tadri and other beaches which will allow entry to Indians.

Industries minister RV Deshpande who came up with the proposal when he held the tourism portfolio said that a plan to start casinos in Karwar will be placed before the cabinet. But tourism minister Priyank M Kharge was skeptical.

“Two agencies have come forward to run offshore casinos on the lines of those in Goa but we are treading cautiously. A move to launch casinos may generate opposition since the state has already banned lottery and gambling. In the next few days, we will discuss legalizing offshore casinos” he said.

He said the government had discussed bringing out a casino and cruise policy during Invest Karnataka 2016.

“We must have a policy before granting casino licenses” he added.

At present, only Goa, Sikkim and Daman and Diu allow casinos. Sources said a few top government functionaries and state ministers are not averse to the offshore casinos move.

A senior tourism official said that the proposal was prepared after studying the concept of offshore casinos in Goa, their revenue model and various other aspects.

“It’s time casinos were legalized in coastal areas to promote tourism. A lot of people from Karnataka go to Goa to visit casinos. Many illegal clubs are functioning from apartments and rented office spaces. The state is losing out on a lot of revenue by not legalizing casinos” he added.”

Also, many other states are considering offshore casinos as a remedy to attract foreign tourists.

Are Online Casinos Operating in India

Online gambling is in its infancy in India and online casinos are not yet completely into existence in India. The state of Sikkim offers online horse betting and lotteries. Sikkim planned to offer three online gambling licences in 2010. It was expected that other states would follow Sikkim thereby, opening up a major online gambling market throughout India. This failed despite India being the most sought out country for online gambling.

Funding Option Laws To Consider (Forex Law)

There is a law in India that says that it is illegal to fund online gambling sites without using Rupees as the currency. This law is called the Foreign Exchange Management Act.

It says that if you have to place a bet at an online bookmaker or gaming site you need to do so in Rupees. Only a few sites take currency in Rupees in which you can fund and withdraw via the same currency so, most players from India simply choose to use an electronic wallet. Examples of the most popular ones are Moneybookers, Paypal, and Neteller.

Conclusion on Online Casinos and Gambling

As discussed, though online casinos are not yet allowed as per The Public Gambling Act, 1867, there are too many loop holes in the Indian Governmental betting laws. With a growing middle class and youth, a huge population and offshore casino giants are looking to make a stand in India. It is only a matter of time before online licenses are given out to betting firms offshore to fully allow online betting and gambling in India.

What Does One Do with Casino Income in India & What Are The Tax Liabilities

Let us take an illustration to understand this –

Say, Mr. X earns an amount of rupees 1 lakh in a casino in Goa. So he can deposit his income from casino, that is this rupees 1 lakh in his bank account. Now Mr. X needs to file an income tax return for that particular year as he would fall under the category ‘Individual’. The tax on the income earned by Mr. X through gambling is thirty percent along with a surcharge of ten per cent on the above tax.

No deductions and exemption are available against such income under the income tax act.

Mr. X also needs to check if the gambling house has deducted tax at thirty percent before handing over his winnings to him. If not, he is liable to pay the same when he files his income tax return. The said tax on “winnings from gambling” is covered under Section 194 B of the Income Tax Act.

If Mr. X earns casino winnings outside India the host country will usually deduct tax on his winnings before handing over his balance amount. The said amount can be deposited in his local account in India provided he transfers the same through banking channels otherwise, it is illegal to carry huge amount of cash across international borders. Usually, an amount of USD 5000 is allowed as foreign currency into India if it exceeds the limit. The same has to be reported to customs.

If Mr. X transfers the winnings from abroad the said amount will attract tax, as he is a resident of India. For a resident of India, his global income is taxable in India so he will be required to pay a tax locally in India in addition to the tax he pays in the foreign country.

In Casino Gambling Why Does The House Always Win

If the house would not win it wouldn’t exist. Games in a casino are designed in such a way that it preserves the house edge so that over the thousands of bets, the casino will come out on top.

While individually people may win millions on individual bets, in the long run, players as a whole will give the casino a small percentage more money than they take away from it. So the house does not always win in the short run. But in the long run, it is a very profit making business.

For example, you may very well go to a casino in Goa for a weekend and double your money gambling in that casino but if you go to Goa every weekend of your life, your chances of profiting from the excursions go down to almost zero or even negative.

What Are The Benefits of Casino Gambling

Let us discuss benefits of Casino Gambling in a country like ours from both an individual point of view and government point of view.

Benefits from an individual point of view –

• While gambling in a Casino, a person has the possibility of making as much money as he wants immediately without any limitations on time or effort put, provided he wins.

• The amount of money to be won does not remain in only a few percentage of the capital employed as in other standard business activities. One can earn even twice, thrice or many fold times the capital employed, that is the money invested or put on stake.

• Besides earning money playing in a casino is a kind of leisure for a person. One has to do his routine business activities as a necessity to earn his living but in a casino, it’s like you are playing and enjoying and earning at the same time.

• Regular business can become monotonous and boring to a person but in casino gambling, one can choose from many games available. For example, poker, bingo, roulette and many more.

• Playing in a casino becomes a stress buster for an individual as it serves as a relaxation method.

• If a person wins often, it can develop a technique of self-discipline.

• Not much skill is required in a casino, it’s more of a chance based place to win so, the unskilled and unemployed can also earn.

Benefits from the Government point of view –

If casinos are legalized in a state, the government can reap the following benefits –

• Casinos can attract and boost tourism in a state considerably.

• Tourists from other states bring in more money to the state and tourists from other countries bring in more foreign exchange.

• Government can collect revenue right from the issuing of licenses stage.

• If proper taxes are levied on the casino operation, a government can reap handsome taxes.

• Successful and popular casinos boost employment generation directly and indirectly in a state.

• More money spent by people, more money in the form of taxes to the government, more employment generation leads to better infrastructure programs by the Government.

• All this adds to the overall growth and prosperity of the state.

Why Are Casinos Not Legal in Most Parts of Our Country & What Are The Limitations of Casino Gambling

Now, let’s discuss the limitations of casino gambling with respect to an individual or a society and also with respect to the government –

Limitations from an Individual or Social point of view

• While gambling, a person can lose all his money immediately if he loses his bet. So, winning might be a possibility, losing all the money can be a big blow to a person.

• A business provides more or less fixed or secured percentage of profit or loss but a casino bet can completely take away 100% of your capital, can even leave you in a debt.

• As playing in casino is a leisure, a person does not realise when he over does his bets and risks.

• Too much of fun and ecstasy in the casino games leaves a person completely out of his senses, only to repent later after heavy loss.

• No person can always win in a casino, that is why it ultimately drains the peoples savings to land in the hands of a few owners.

• Losing money often makes a person pessimist and leads to depression as a disease or even suicidal attempts thereby, ruining families altogether.

• As not much skill is required to earn, this misleads the youth and takes them away from education and hardwork.

• Casino gambling is addictive in nature regardless of a person winning or losing. If a person wins, he plays further to win more. If a person loses, he plays to win back his lost amount. Thus, this forms a vicious circle, making difficult for a person to overcome it.

Limitations from the Governments point of view

The Indian Government and the State Governments also still holds an orthodox approach when it comes to the legality of casino gambling except a very few states because of the following reasons –

• Casino gambling involves too much money usage at a place thereby increasing the risk of crime, blackmailing, formation of underworld gangs, extortions, which is not good for the law and order of the area.

• As it’s very expensive, the rich indulge more thereby, making the owners or a few handful of people richer, leading to an imbalance in the society.

• Presence of casino leads to an increase in prostitution, drugs and alcohol usage in the locality thereby, misleading the youth, taking them away from growth and development.

• All this creates a threat to the social safety and security.

• Though casinos boost tourism, it can ruin local businesses and social life because easy money attracts the local businessmen on a regular basis, affecting their routine life.

• Too much of money involvement for setting up a casino to manage its day-to-day affairs, to pay taxes, leads to increased corruption in the system as well as weakens law and order.

Conclusion – Whether Casinos Are Helpful or Harmful For Social and Economic Growth & Development

Casino gambling is not really a problem only if proper rules and regulations are set up and followed by the governing bodies, owners and the consumers. World’s greatest cities and tourist destinations have the most famous and successful casino houses because they abide strictly by certain rules and regulations as set by their regulators and authorities. Best examples range from Las Vegas Casinos, farthest from the west, to Singapore, Hongkong – Macau, Quala lumpur Casinos, nearest in the east.

What Measures Are Required To Be Taken To Make Casino in India Yield Benefits & Cut Down The Limitations

Gambling laws for casinos can so be amended and put into work that we can reap all its positive effects on social and economic front. Also, the shortcomings and fears of the limitations can be put aside through the following suggested measures (a part of these measures are already being observed but it should be followed more diligently to curb all the disadvantages) –

• Government should choose those places for casinos which are or can be developed into tourist attractions. This will attract more of foreign exchange and tourism based employment.

• Requisite fees for license agreements should be high to minimise competition within and maximise government funds for welfare of the people.

• The taxes on casinos should also be high to minimise income gap in the society, also this will again increase government revenues.

• Local people should not be permitted to enter the casino for playing thereby allowing a normal socio-economic life for the localites.

• People from other states can be allowed in the casinos to gamble, only with a ceiling in number of times to be allowed to play in a certain period, with a fixed limit for playing. They should not be allowed to play beyond that limit.

• Minimum age for gambling can be fixed to 21 or above, may be till 25, so that the youth are settled in their life and can make sensible decisions regarding gambling.

• Proper records should be maintained as per the identity and income of the persons entering and gambling. Thus, their gains or losses would be accounted for, making a hard route for black money to exist.

• People below a certain income group should not be allowed in the casinos so that they don’t lose their precious money to their leisure which would otherwise fulfil their basic necessities.

• No limits should be fixed for foreigners and NRIs to attract foreign exchange in the country.

Final Word

Today, when demonetisation is the order of the day, the above measures would go a long way in curbing black money, corruption, and current ill effects of casinos and building up a transparent and growth friendly gambling system for a healthy and ever growing economy.

Where casinos are considered bad /a sham in the conservative world, they’re are creating utilities in the psychological & economic sector. Isn’t it? Drop your comments & Share the article.

References –

• casinocity.in
• timesofindia.indiatimes.com
• onlinebetting.com
• gamblingtodayblog.wordpress.com
• wikipedia.org

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In this blog post, Sourabh Makhija, from RDVV – Jabalpur, guides on the steps that can be taken if you’re threatened by your boyfriend/girlfriend or your ex-boyfriend/ex-girlfriend who use your nude pictures to blackmail you. 

Introduction

Had a breakup? Are you afraid that your ex might publish your personal photos? Fear of seeing a naked picture on any social media site or anywhere else can shake even the hardest soul! Of course, porn stars are an exception. But we aren’t porn stars, and we don’t want our private photos and videos made public. Shockingly, thousands of revenge porn videos and pictures are posted on the internet every day. So what are the possible options in front of you when someone blackmails you using your nude pictures? (I hope this situation never comes in your life, but one should have the knowledge as to how to deal with a situation like this).

This article will let you know how to prevent someone from making your private pictures public, and the available remedies if someone is being threatened because of those pictures.

How are Nudes leaked?

No one will happily share his/her nude pictures on Facebook, Twitter, Snapchat, Instagram, etc. We still have cases where one’s private photos are leaked, so what are the possible reasons for those leaks?

Observations

Revenge Porn: The former sexual partner with a motive to cause distress or embarrassment leaks the sexually explicit images or videos of a person on the internet.

Hacking: After the breakup, the angry boyfriend/girlfriend will try to hack your profile, will seek to access the files which solely belong to you and will take a copy from your profile with them. Capturing of videos or a picture through spy cameras is also very common.

What happens after the picture is received by the recipient?

While many people may not want to share the pictures or videos of their ex, many use such photos or videos to either blackmail or take revenge by making them public.

A partner may save these pictures somewhere out of your reach and wait for the right time to use them against you.

He/she can also forward those photos to his/her close friend, and then the close friend can further forward those pictures to their close friends. Till now, your pictures or video clips are being distributed (leaked) to friends of friends. One of these people may then chose to sell the clip to a porn website for a few dollars. Sometimes your ex-intended nothing more than sharing a clip with his best friend, but that itself may lead to your nude pictures being all over the internet overnight.

Another possibility is that your ex or another person who accidentally comes in possession of such photos begin to blackmail you, and it’s extremely common.

“If you don’t do what I tell you to do, I’ll tell your parents we had sex.”

“If you break up with me, I’ll post those pics everywhere…”

If your partner makes threats like this, they’re putting you in a terrible situation. This type of threat is called blackmail, and you might feel like you have no option but to do what your partner says. Blackmailing is a form of emotional abuse, and like all abuses, it is about power and control. A person who uses this tactic wants to make you afraid of some consequence to get you to do what they want.

What are the possible outcomes of those shared images?

1. They might get leaked worldwide.
2. They might get used in pornographic videos.
3. They may destroy one’s reputation and social life.

What to do when someone Blackmails you using your Nude Pictures

The following steps can be adopted to help a victim of blackmailing to proceed:

• Neutralize the threat: Neutralize the threats that your partner is making. For example, if they are threatening to tell your parents about something you did, you could go to your parents first and be direct and honest about what happened. Surely it is an uncomfortable thing to do, but your blackmailer would no longer be able to control you with that threat.
• Turn to Your Support System: A support system can help you stay firm and feel supported during a difficult time. Parents, a friend or a counsellor would possibly be able to calm you down. You need to share with them the problem you are facing.

However, doing all the above things won’t help till you take certain critical and necessary legal steps. Here is what to do:

1. You can call the police on the hotline number 100 and tell them what is happening. They will take your name and address and immediately send police from the local police station to meet you. You can then guide them. The police will note down your statement and then catch hold of the guy/guys behind this, take away their phones and computers, lock them up and interrogate them till the police find out where the rest of the clips are so that nothing can be leaked. They will recover these clips and gadgets and take it into police custody. After proper evidence recording, they are required to destroy all the clips or photos.

The drawback of this approach:

• Police can be insensitive in the way they talk to a victim, usually a young boy or girl. They can be rude and sometimes even harass the victim. If money is not a problem, hiring a civil lawyer, female if you prefer so, to be present from your side to manage everything, especially the interaction with the police, is an excellent idea.
• Police might muddle somewhere, and that may lead to a leak of the clips or photos.
• After recovering the evidence, they may forget to dispose of the clips. They may watch such clips themselves or even circulate.

What usually happens

• The culprit and their family members are summoned to the police station. Then they are put through much shame and harassment. Their phones and laptops are confiscated.
• The accused, especially if boys, are usually arrested and interrogated.
• If they are from the rich and influential background, they may not get arrested. Police may try to “amicably settle” the matter.

What I recommend in such situations:

I would advise you to approach a lawyer you can trust, who will be sensitive and supportive. Through such a person, file a civil case asking for an injunction from the court on the individuals who are threatening you. Once notice is served on them, they will be worried and not want to make things worse by leaking anything unless they are lunatics. If you think they are insane, then go to police straight instead of following this approach. Otherwise, this is the best bet. Once a notice from the court is served on them, ideally along with an injunction to not share those clips or photos with any person, plus a demand to present themselves before the court, your lawyer should reach out to them and begin a negotiation. At this point, they will be scared that you may file a criminal case as well, which would lead to their arrest. You may indeed opt to do so if the negotiations between your lawyer and their side do not go well.

Therefore, if you can afford a few thousand rupees of lawyers fees, it is advisable that you take help of a competent lawyer in such scenario. At ClikLawyer.com, we have handled many such sensitive matters, and we can put you in touch with the right lawyers who are experts at this. If you are facing such an issue, feel free to call this helpline number for free advice: 011-395-85700. Sometimes the victim is worried that their parents will come to know about the situation. One must not just wallow in such thoughts and let the situation go out of control. Contact either the police hotline (100) or the above helpline to get advice on how you can handle the situation in the best possible way.

Legal Provisions available with a person suffering from threats or blackmailing about their private photos or videos being circulated

• SECTION 66E OF INFORMATION TECHNOLOGY ACT, 2000 – VIOLATION OF PRIVACY – This section penalises the capturing or publishing the image of a private area of any person without consent. Illustration: A is trying out a new dress in the changing room of a clothing store. B, an employee of the store has hidden a camera that records A while she is changing her clothes. B will be liable under this section for imprisonment which may extend to 3 years.
• SECTION 67 OF INFORMATION TECHNOLOGY ACT, 2000 – TRANSMITTING OBSCENE ELECTRONIC MATERIAL – According to this Section, anyone who uses electronic means to publish any picture, video or audio or anything which is capable of defaming a person morally will be considered as a crime and the person doing such an act will be punished with imprisonment which may extend to 5 years and with fine also.
• SECTION 67A OF INFORMATION TECHNOLOGY ACT, 2000 – ELECTRONIC MATERIAL CONTAINING SEXUALLY EXPLICIT ACT – According to this Section whoever uses electronic means to publish any material which contains sexually explicit act will be liable for imprisonment which may extend to 7 years. Illustration: A and B are engaged in the act of sexual intercourse in their hotel room. C, an employee of the hotel uses a hidden video camera to record this. He then copies this video recording onto a CD and gives a copy to his friend. C is liable under this section.
• SECTION 67B OF INFORMATION TECHNOLOGY ACT,2000 – CHILD PORNOGRAPHY – This Section penalises the publishing of obscene electronic material involving persons below the age of 18 years.
• Section 292 in The Indian Penal Code – Sale, etc., of obscene books. Whoever, sale, distribute or does anything to spread pornographic books is charged under this Act. The punishment is two years, and fine which may extend to two thousand rupees.
• Section 501 in The Indian Penal Code – Printing or engraving matter is known to be defamatory. Whoever prints or engraves any matter, knowing or having good reason to believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

The government has also set up cyber forensic training and investigation labs in various states (till now in 9 states) for the training of law enforcement and also for the judiciary in 3 states. Cyber-crime cells have been set up in all states and Union territories for reporting and investigation of cyber-crime cases.

Conclusion

Blackmailing is an act done by cowards; one must not fear from threats in the first place. The society should not criticise the nudes leak. Instead, it should support the victim in his/her battle to punish the wrongdoer. It’s obvious for the victim to panic, but you must take all the right actions without delay, because delay may lead to unpredictable results.

The post What To Do When Your Boyfriend/Girlfriend Or Ex-Boyfriend/Ex-Girlfriend Blackmails You Using Your Nude Pictures appeared first on iPleaders.

In this article, Anubhav Kumar Pandey talks about how can a person write their will on their own.

Who will keep your assets and properties which you have acquired over your lifetime after you are gone! What is the law relating to will and testaments in India? What does will legally mean in India? What are the laws governing wills in India? What does a will contain? When is the right time to create a will? Should we wait for old age to strike our doors? How to create an online will? What is e-will? Doubts regarding registration of will in India? Is registration of will compulsory? How can I write my will myself in India? A detailed article dealing with the drafting of a will in India.

What is will

A man rules from his grave as regards to the devolution of his property after his death. A will is the intention of the person (testator) and his plans of what he wants to do with the property which he had acquired throughout his life.

The following points explain the concept of will in India.

• It is a legal declaration of the intention of the testator (the person making the will).
• The declaration is with respect to the property of the testator.
• The declaration can be effective only after the death of the testator.
• The person making the will has the power to revoke the will at any time during his lifetime.

Who can make a will

Section 59 of the Indian Succession Act, 1925 speaks of person capable of making a will.

• A person of sound mind
• A person who is not a minor (above 18 years of age in India) are capable of making a will.
• Any person who thinks of bequeathing (giving their property) to the person who are near and dear to them and who are looking after their comforts.

What can be bequeathed in a will

A person cannot transfer those assets in a will which cannot be legally transferred. Example inherited property. A Hindu under a will can bequeath his portion of acquired property through inheritance and not the entire property. Hence, flats or car, jewellery, land, cash even obligations and liabilities can be willed.

How to make a will in India

There is no fixed format for writing a will in India. One does not even require proper court paper or format for the purpose of writing of a will. A will can simply be written on an A4 size paper. The only requirement for a will to be formally called a will is, signature or thumb impression of the person making the will along with signature or thumb impression of any two witnesses stating that this is your will.

Can any person draft their own will in India

Yes, any person me or you can write their own will in India. One does not require an expertise of an advocate to prepare a draft will.

There are few technicalities one should take care of while writing a will by themselves.

1. Choose your words carefully with utmost caution. The fundamental rule is to ascertain the intention from the words used in the will. The surrounding circumstances are used only for the purpose of finding out the intended meaning of the words which have actually been employed.^[1]
2. Make your intention clear. When there is a conflict while construing the language of the will, the court puts itself into the testator’s armchair and judge the situation while keeping the factors such as, position of the testator, his family relationship, the time when the will was drafted, whether the testator was taking his final breath or not and many more such surrounding circumstances are taken up by the court while resolving a conflict.
3. In a will in India, subsequent clause prevails over earlier clause where two clauses in a will oppose each other or are irreconcilable. A will may contain several clauses and the latter clause may be inconsistent with the earlier clause. In such situation, the last intention of the testator is given effect. If in a will there are two inconsistent provisions, the latter shall prevail over the earlier. ^[2] Illustrating this provision, If a man at the commencement of his will gives the house to A, and at the end of his will directs that the house shall be sold and proceeds invested for benefit of B, the latter disposition will prevail.
4. While construing the will, all claims are to be harmoniously construed and must be given effect to.
5. When is the correct time to make a will? A person can make a will just after his attaining of the majority but a will is the assets which a person accumulates over his lifetime! Therefore, the correct time to make a will is when a person is in his mid-50s. Since by then a person accumulates the majority of his wealth. One should take care of their assets early only. From a legal point of view waiting for getting too old for writing a will is not considered good. As court looks into various factors while interpreting a will, age at which will was declared is also one of the factors.

Here is a detailed sample format of a will which is applicable in India

I, ——————, son/wife of ——————– ,resident of ——————– ,age _ _ years, am making this will on the _ _ day of _ _ _ _ _ _ _ out of my free volition and without any coercion or undue influence whatsoever and state that this is my last will and that I hereby revoke all Wills and codicil made by me at any time heretofore, I bequeath my property , interests and other rights as follows:

1. I bequeath on my death to _ _ _ _ _ _ _, my title interests and all other rights which I have as owner of the residential / Commercial Property at _ _ _ _ _ _ _ , I hereby state that he shall be

entitled to use and enjoy the said property at his own will after my death.

2. I bequeath on my death the following ornaments and jewellery belonging to me to _ _ _ _ _ _ _:-(Give the list of the ornaments)

3. I bequeath on my death, cash balances lying with me at the time of the death to _ _ _ _ _ _ _.

4. I bequeath on my death,bank balance lying in my name at Savings/Current Bank Account No._ _ _ _ Bank of _ _ _ _ _ _ _ ,_ _ _ _ _ _ _ Branch, _ _ _ _ _ _ _ at the time of my death to _ _ _ _ _ _ _ .

5. I bequeath the amounts receivable by me the time of my death from various parties on various accounts to _ _ _ _ _ _ _ .

6. I bequeath the amounts and other valuables owned by me and lying in locker number _ _ _ _ in my name at Bank _ _ _ _ , Branch at the time of my death to _ _ _ _ _ _ _ .

7. I direct that a sum of rupees _ _ _ _ Only (Rs. _ _ _ _ /-) be set apart from my assets at the time of my death and be donated to a charitable trust or persons whose aim and objective is to provide food, medical assistance, education assistance, etc to the needy persons.

8. I direct that before distributing my assets in accordance with this will, all my debts, liabilities and monetary obligations including all testamentary expenses, costs, charges, expenses in respect to probate and other legal charges at the time of my death be met out of my assets.

9. I bequeath all the other residuary property, assets and other rights whether or not existing at the time of my death to _ _ _ _ _ _ _ .

I further state that Mr, _ _ _ _ _ _ _ is appointed as the executor of the this will.

I declare that I am the owner of the properties mentioned in this will and an entitled to make this will. I am of sound mind and health at the time of making this will.

In witness whereof, I have hereunto set and subscribed my hand and signature on this _ _ day of _ _ _ _ _ _ _.

Signed

Signed by Mr. _ _ _ _ _ _ _ on his last will and testament, all being present at the same time. Thereafter at his request and in his presence, We subscribed our respective names and signatures as attesting witnesses all being also present at the same time.

Signature of the Witnesses

1. I have witnessed and read the aforesaid will.

Sign

2. I have witnessed and read the aforesaid will.

Sign

3. I have examined Mr. _ _ _ _ _ _ _ on the date of this will and wish to state that he appears to be in of sound mind and sound mental health at the time of making the above will.

Sign of doctor

Appointing the executor after declaring the will

The next important step is to choose executors who will execute your will after you are gone. The executor or the trusted person will make it sure that the will is distributed as per the intention of the testator. The executor can be anyone, from the doctor to any lawyer or even a neighbour. The only important criteria is, the executor should not possess any claim over the will^[3]

Registration of the will

Section 18(e) of the Indian Registration Act, 1908 specifies that the registration of a will is optional. The mere fact that registration of the will is made optional, it cannot be said that because of its non-registration, an adverse inference can be drawn.

Who can get the will registered

The testator or after his death the executor of the will can get the will registered.

Why it is advised to get the will registered

It is advised that a testator should get his will registered under the provision of Indian Registration act as it removes all the doubts of ingenuity revolving around the will. All the future ambiguities and hindrances are removed just by getting the will registered.

Need more information on registration of will. Press the following link.

How to draft online will or E-will

With the advent of technology in the field of law, making a will has become easier that it was ever before. Now a person can even make an online will or e-will or digital will and it is of as much binding value as any ordinary will. It provides digital data of your assets, financial investments, properties and to whom one wants to give his or her property, money and other assets after demise. It is safe, secure and time-saving. An online will can be prepared in a time span of mere 30 minutes or even less. A Service provider such as NSDL, various banks including ICICI bank, The Federal bank provides this facility with a mere amount of INR 3000-5000.

Steps required for creating your e-will are

1. Registration at the website of any service provider.
2. Payment of required fees. This depends on from one service provider to the other.
3. Filling of the online form provided and prescribed by these service providers.
4. Filling in the details of your family members and your assets.
5. Experienced lawyers will prepare the draft of your will.
6. You will receive a rough draft online over your registered email id.
7. Before drafting of your final draft, you will be given a notification for making alterations, if any to your rough draft.
8. A final draft will be sent to your doorsteps with proper instruction as to the signing of the will by the testator and signing of two witnesses also. ^[4]

Legal recourse when the will does not appear natural

There are situations where the testator is willing to give his property to someone who is not very close to them by blood or by matrimonial relation, nonetheless, they share a close sentimental relation. A will can be challenged in the court of law when it does not appear natural. If the bequest made in the will appears to be unnatural, then the court has to scrutinise the evidence with more care than usual.^[5] Hence, a will can be challenged in the court of law when it does not appear natural.

Will declare under undue influence

The burden of proving the presence of undue influence is on the party alleging the. Therefore, the person on whose name testator has made the will need not prove or disapprove anything. The person, making the claims of undue influence needs to prove that the intention of the testator was obtained using undue influence.

This was a complete guide on technicalities involved in drafting a will and how any layman can draft a will by themselves. If anything to add on or to share any story, do drop a comment below and don’t forget to share this article with your friends and family if the article added to your value.

^[1] AIR 1951 SC 139

^[2] Section 88, Indian Succession Act 1925

^[3] http://timesofindia.indiatimes.com/Avoid-disputes-write-a-Will/articleshow/802650.cms

^[4] http://indiatoday.intoday.in/story/make-a-will-online/1/481266.html

^[5] Sushila Devi v Pandit Krishna Kumar 1971 SC 2236

The post How can I draft my will myself appeared first on iPleaders.

In this blog post, Sourabh Makhija, from RDVV – Jabalpur guides on the steps that can be taken if a false dowry case and domestic violence case is registered against you. 

Introduction

The violence that affects a person’s life in every way – physically, mentally, emotionally and psychologically is known as Domestic Violence. It is a violation of a basic human right. Various countries of the world have identified it as a serious threat to a person’s overall development and hence, has provided relief from domestic violence in various forms. India has also identified domestic violence as a crime and provides relief and protection from it – unfortunately to only Women!

Domestic violence against men is almost nil as there is no provision in any law to protect a man. As a result of which we have many cases where women use their rights in making false complaint against their husbands with the motive of harassing them. Moreover, everyone including our government has failed to take any stand on addressing the violence faced by men.

Women use the weapons called Section 498A and Dowry Act to file a false complaint so as to attack their husband. Section 498A of Indian Penal Code is a provision under which a husband, his parents, and relatives can be booked for subjecting a woman to cruelty to meet their unlawful demands (dowry). Generally, the husband, his parents, and relatives are immediately arrested without sufficient investigation and put behind bars on non-bailable terms. Even if the complaint is false, the accused is presumed to be guilty until he or she proves innocence in the court. The maximum punishment if proven guilty is imprisonment for three years.

Stand of Judiciary on False Complaints made by Women

The judiciary is well aware of the misuse of Section 498A. Supreme Court called it legal terrorism. But even the judiciary is helpless due to tremendous pressures from feminist groups. There is a bill pending in Rajya Sabha for amendment to Section 498A.

Justice Malimath, former Chief Justice of Karnataka and Kerala High courts headed a committee which gave its report on comprehensive amendments to Criminal Laws. This committee recommended that 498A should be made bailable and compoundable. Listening to the recommendation of the committee Feminist groups and their contacts inside Amnesty International threatened for agitation on this issue.

What to do if a False Domestic Violence and Dowry case is registered against you

If a false complaint is registered against you by your wife, you have two options – either to defend your case and wait for the judgement or to file a counter case against your wife and prove her wrong. Both are detailed below.

Defensive

You can defend yourself and your family from being sent to jail because of the false complaint. You have following options to defend your family and yourself-

Collect as many pieces of evidence as possible

• Record all conversations (voice, chat, email, letters, etc.) with those threatening and keep the originals in a safe place. It is advised not to produce the original evidence before anyone.
• Collect evidence to prove that you have neither demanded dowry nor have taken it anytime.
• Collect evidence to prove that she moved out of the bond of marriage for no valid reason.
• This evidence will be fruitful in the time of getting anticipatory bail or notice bail from the court.

Safeguard your Family

There are hundred of cases where the whole family is put behind the bars just because of one false complaint. Section 498A has a very wide jurisdiction under which the women can complain against anyone in the family. Even the mother and the father of the husband are not immune. In such a situation the husband can do the following to safeguard his parents and other family members –

• Once the FIR is lodged, the man can apply for anticipatory bail or notice bail so as to ensure that the innocent family members are not going behind bars without any just cause.

How the case turns out would totally depend on which state the case is lodged. Different states have different mechanisms to deal with the problems of false cases.

• For example, in Delhi, Punjab, Haryana and Rajasthan the complaint would first be referred to CAW Cell (Crime Against Women Cell)/ Mahila Thana). Where attempts would be made for Settlement between husband and wife. And if no settlement is reached, the case would be converted into FIR. At this stage or even before, you can seek Anticipatory Bail or Notice Bail for all your family members to protect them from arrest.
• In Uttar Pradesh/ Uttranchal, the FIR would be promptly registered but you would get 30 days to settle the case in mediation centre. By which time most people obtain stay on the arrest from High Court.
• In Bihar/ Jharkhand, the situation is very bad, people are arrested without verification, and also getting Anticipatory Bail is very difficult.

Complaint about blackmailing, false allegations

Lodge a complaint to your nearest police station, detailing about blackmailing, her false allegations, and her unbearable behaviour. Request in your complaint that police should take necessary actions to stop her from making threats and abuses immediately, also tell the police verbally and in writing along with available evidence that you are facing blackmailing and threats and mental torture from your wife and/or her family, as the case maybe. Filing such a complaint early on can save you from a lot of trouble later on if you are the first one to file this.

Drawback of this move

• Police don’t easily write down the complaints of men. Also, how the complaint is drafted is critical. This is why consulting a lawyer with experience in such matters before approaching the police is a good idea. Get your complaint drafted by a trial lawyer if possible. If police the refuse to register the complaint, seek the help of a lawyer again. They will be able to make the police register the complaint.
• Police itself sometimes provoke the wife to register a false complaint against the husband, the reason being the greed of taking bribe later.

What I suggest in such circumstances

• If the police reject to file your complaint you can write a complaint letter and send the same to the SP/commissioner as the case may be and get a “receiving copy” of the complaint.
• If the police refuse to give you a receiving copy, you can send the complaint to the police station by registered post. The acknowledgement of which must be kept safe with you.
• Police have a higher chance of acting on your complaints after this.
• One of the common mistakes the victims of a false 498A complaint do is to try to manage the whole matter on their own and not involve any legal expert in the issue. This often leads to damaging their own case. So, it’s always better to engage a legal expert such as a lawyer to advise you on the matter and if possible do the leg work as well. A lawyer will surely understand the matter better than you. Check out Cliklawyer.com to get some quick advice free of cost on a call.

File RCR (Restitution of Conjugal Rights)

If your wife has left your place after all the blackmailing and threatening, you can file RCR (Restitution of Conjugal Rights) mentioning the conditions that she should agree on before she starts living with you again.

Do not enter into a Settlement with your wife

• If you have to compromise, do it without paying any money. By paying her money you will indirectly accept the blackmailing and guilt. Your act will encourage fraudulent women to do more blackmailing.
• Despite all this, if you decide to pay and compromise then do not pay all the money till High court or Supreme court have given the final order of compounding the IPC 498A and all offence including the divorce decree. This is where your lawyer’s role in negotiations will be critical. You should get the settlement conditions agreed by both parties in writing (in the same agreement) including her and her family members. Also get them to file A court statement under IPC-156 that they will not challenge this order in higher courts and that they will take back all the cases filed against you and all your relatives in all the courts. They should get the final instalment of money after all cases and proceedings are withdrawn and closed.

Raise the issue of false complaint

Start writing letters to the media, human rights organizations, etc, telling them about the misuse of Section 498A. Use social media platform for reaching the mass. This will not give you legal relief but bring the attention of the society toward the misuses of the law.

http://www.pmindia.gov.in/en/interact-with-honble-pm/ – here you can submit your complaint to the Prime Minister of India.

OR

Web information Manager

Rasina Hill, South block

New Delhi – 110011

Phone No.: +91-11-23012312

Offensive

To make your case stronger and to expect an earlier settlement, you can file counter cases against your wife. Below is a list of counter cases you can file to strong your case. But for this purpose, you will need an advocate to represent you, though it should be in your knowledge as what remedies you have or what counter cases you can file against your wife.

• Sec 120B Indian Penal Code, 1860 – Punishment of Criminal Conspiracy – You can file a case against your wife alleging that she is conspiring to commit a crime against you.
• Sec 167 Indian Penal Code, 1860 – Public servant framing an incorrect document with intent to cause injury – If you believe that the police authorities are helping your wife in making false complaint and framing incorrect documents you can file a case against them alleging their false framing of documents.
• Sec 182 Indian Penal Code, 1860 – False information, with intent to cause public servant to use his lawful power to the injury of another person – What usually happens is that the public servant in his power does something which might not be the true, in short, a false information is circulated so as to depress the evidence.
• Section 191 Indian Penal Code, 1860 – Giving false evidence – If you suspect that your wife or anybody is presenting false evidence against you in the court of law or police station, you can file a case alleging that the evidence which are being used to prosecute you are false, which consequently make the whole charges false.
• Section 197 Indian Penal Code, 1860 – Issuing or signing a false certificate – Perjury is a crime, one can’t sign a false certificate and allege it to be true. Hence, if someone suffers because of the wrong certificate, he can prove himself innocent after showing sufficient evidence.
• Section 471 in The Indian Penal Code – Using as genuine a forged [document or electronic record]. – Whoever fraudulently or dishonestly uses as genuine any [document or electronic record] which he knows or has reason to believe to be a forged [document or electronic record], shall be punished in the same manner as if he had forged such [document or electronic record].
• Section 497 in The Indian Penal Code – Adultery – Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both. In such case, the wife shall not be punishable as an abettor.
• Section 500 Indian Penal Code, 1860 – defamation – Reputation is man’s biggest asset. So if someone tries to defame you by any means, you can drag them to court for the harm suffered by you because of their conduct. They will be entitled to pay you damages to you in terms of compensation.
• Section 504 The Indian Penal Code, 1860 – Intentional insult with intent to provoke breach of the peace – Whoever intentionally insults, and thereby gives provoca­tion to any person, intending or knowing it to be likely that such provocation will cause him to break the public peace, or to commit any other offence, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
• Section 506 Indian Penal Code, 1860 – Punishment for Criminal Intimidation – You can file a case of criminal intimidation against your wife alleging that she threatens you to do harm to you or your family or your property. Yet again, evidence is the only thing which can support your case.
• Section 227 of The Code of Criminal Procedure, 1973 – If you believe that the complaint registered by your wife is false you can file an application under sec 227 stating that the 498A case filled by your wife is false. If you have enough proofs, or if she does not have enough proof to substantiate the charges, chances are that the judge just dismisses the 498A case as it is a framed one.
• Section 9 of Code of Civil Procedure, 1908 – Damage recovery case – If she breaks into your home, creates a scene, and goes to ” protection officer ” and lies that you abused her “physically, emotionally or economically”, file a damage recovery case under Section 9 of CPC against her. Legally, you must issue notice on the same day or next day. The suit will continue for a long time. It has no risk.

Conclusion

The false complaint against men is increasing every day, it’s a serious issue as it violates the basic human rights. The problem is not unknown to anybody, everybody knows how women misuse the provisions of the law to fulfil their unlawful demands against their husbands. Moreover, Sec 498A is non-compoundable which make it more severe for men. Though the government recently has given some guidelines to amend the existing laws, making same provisions for men and women. The Supreme Court is also working hard on making things better for Indian men as a result of which, in a judgement the court gave some guidelines against the arbitrary arrest of men in 498A cases. Also, with the tremendous misuse of Section 489A, there are landmark judgments in favour of the male. A recent judgment states that if a false allegation is made against a husband by the female, that would constitute grounds for divorce. Link: False dowry charge ground for divorce, Supreme Court rules – The Times of India

References

1. https://www.kaanoon.com/34881/how-can-husband-fight-against-false-dowry-domestic-violence-complaint
2. http://www.firstpost.com/india/flipside-of-dowry-law-men-recall-how-section-498a-is-unfairly-used-against-them-2172943.html
3. https://www.quora.com/My-wife-is-threatening-me-with-false-dowry-charges-Is-there-any-law-for-me-in-India-How-should-I-handle-this-situation
4. http://timesofindia.indiatimes.com/india/False-dowry-charge-ground-for-divorce-Supreme-Court-rules/articleshow/45253503.cms
5. http://www.498a.org/faq.htm
6. http://www.sahodar.in/
7. http://www.news18.com/news/india/domestic-violence-against-men-high-time-government-addressed-the-problem-1004785.html
8. https://www.change.org/p/lawcommission-make-498a-bailable-punish-false-complaint-dowry-givers-gender-neutral
9. http://www.thehindu.com/news/national/other-states/Husbands-allege-misuse-of-Domestic-Violence-Act/article16889118.ece
10. http://www.thehindu.com/news/national/domestic-violence-act-misused-centre/article8586646.ece
11. http://www.livelaw.in/automatic-arrest-498-cases-sc-issues-strict-guidelines-police-magistrates-non-compliance-will-attract-disciplinary-contempt-proceedings/

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In this blog post, Sourabh Makhija, from RDVV – Jabalpur guides on the steps that can be taken if you’re subjected to mental torture and cruelty. 

Introduction

There seems to be a strong notion in society that men are always abusers and women are always the victim. Because of this no matter what the situation is, women get all the sympathy, but men rarely do. However, there are many cases where men are subject to torture by their spouses. So it’s wrong to say that men are the “stronger sex” and women are “innocent sex”. Read this article to know about what constitutes cruelty, what one should do if he is subject to cruelty and torture by his wife.

“MARD KO DARD NAHI HOTA” is good only in movies, ask a man facing torture from his wife, he will tell you “Kitna dard hota hai!” (How much it hurts).

Identify the act of Cruelty or Torture

Expressing views on cruelty, the Supreme Court in Samar Ghosh vs. Jaya Ghosh, (2007) 4 SCC 511, said, “We have come to a definite conclusion that there cannot be any comprehensive definition of the concept of “mental cruelty”, within which all kinds of cases of mental cruelty can be covered. No court in our considered view should even attempt to give a comprehensive definition of mental cruelty.”

So, the first thing one need to do is to identify whether you are becoming a victim of cruelty or not. If your wife is doing any of the below-mentioned acts, then you are a victim of cruelty –

1. Physical attacks on you.
2. Continuous rage, anger, screaming or yelling at you.
3. Constant belittling or criticising your abilities, employment or looks.
4. Publicly flaunting an affair or adulterous relationship.
5. Falsely accusing you of committing adultery
6. Failing to tell you about an acquired sexually transmitted disease, while continuing to maintain sexual relations with you.
7. Making it a ritual to stay away from the marital residence without any valid explanation.

There are many other kinds of abuse which a man has to face. There are times when a lady, deliberately or inadvertently, abuses her man.

Problems faced by men

• Social problem: Our patriarchal society does not believe in the concept of victimisation of men. They just don’t subscribe to the idea that a man can ever be a “victim”.
• Legal problem: There is a heavy gender bias in the Indian legislature. Plus, the legal community, like the society, is also prejudiced. Lawyers hardly take up cases where the defendant is a woman.
• Administrative problem: Due to the heavy gender bias, administrative elements (such as the Police) hesitate to take action when a man lodges a complaint against a woman but will jump at any man who brushes past a lady, even by mistake.

What I would suggest a man do in this situation

Collect as many evidence as possible

Save everything you think is relevant for your case. Take screenshots of the conversations, record calls, etc. which will intensify your chances of winning in a divorce suit. Also, this will help your advocate to trust you and in presenting evidence before the court will eventually make things easier for you and your advocate.

File a Complaint first

One should file a complaint as soon as he thinks that things aren’t under control. You can file a complaint in the nearest police station; the police will record everything you will tell them.

Benefits of doing this act

• The police will be aware of the torture you are facing; they will have all the evidence and records essential for future proceedings.
• Your wife will no longer be able to file a false complaint against you. It usually happens that the woman file false complaint in the police stations, complaining that her husband is asking her for dowry is doing violence to Which are prosecuted by Sec 498-A Indian Penal Code, 1860. This particular section is used by women almost daily, and it is capable of putting a man behind bars. So in case, the police had a record of your complaints in advance, they will not jump to arrest you in the first complaint made by your wife.
• The legal method has all the solutions, if you are not confident enough to take such a massive action, it is suggested to you to visit http://cliklawyer.com/, here you can share your problems with the best lawyers, who not only will understand your problems but will also guide you with the actual and proper procedure.

Legal Provisions available with the Husband

• Section 324 Indian Penal Code, 1860 – Voluntarily causing hurt by dangerous weapons or means – If the actions of a wife are so violent in nature that she uses a weapon in anger to cause hurt to her husband, the husband can lodge FIR in the nearest police station, showing his wounds and medical reports. The police then get all the facts of the matters registered. Then after following the procedure, the wife can be prosecuted. The voluntarily causing hurt may sometimes lead to the death of a spouse, in such cases, the culprit will be liable for committing murder. If the husband is tired of being treated in this way by his wife, he can file a petition for divorce on the ground of cruelty.
• Section 13(1)(ia) of the Hindu Marriage Act, 1955 – Divorce on the Ground of Cruelty – You can file a petition for Divorce anytime after one year of completion of your marriage citing any of the various reasons available under the Hindu Marriage Act, 1955 (in case you are Hindu). Cruelty is one of the reasons under which you can file a petition for divorce. As per Section 13(1)(ia) of the Hindu Marriage Act, 1955 – any spouse can get a divorce on the grounds of cruelty. Under Section 13(1)(ia) the term cruelty includes mental as well as physical cruelty. A Division Bench of Madras High Court comprising, Justices Elipe Dharma Rao and M. Venugopal defined cruelty as “what conduct would amount to cruelty was a question of fact to be decided on the facts and particulars of each case. When a divorce was sought on the grounds of cruelty, the acts complained should be so grave and weighty to enable a court to conclude that one party could not reasonably be expected to live with the other.”
• Section 27 of The Special Marriage Act, 1954 has 12 grounds under which one can get a divorce on the ground of cruelty.

A list of 38 cases where husbands won divorce on the grounds of cruelty –

https://www.facebook.com/notes/subu-subramaniam/happy-new-year-2016-38-cases-where-husbands-won-divorce-on-grounds-of-cruelty-/913717595363582/

Conclusion

Abusive relations are often wound up as a man beating up his wife. Well, that’s what we often see around, but there are stories which support the other sides as well.I have personally come across many men who silently suffer being bullied by their partners, and their lives are more miserable. Sometimes wife abuse mothers and other family members of the husband as they are confident that society will support them. Abuse is abuse. The abuser is at fault. The victim of the abuse whether they are male or female deserves and needs help.

References:

1. http://legalperspectives.blogspot.in/2010/10/what-constitutes-cruelty-supreme-court.html
2. https://indiankanoon.org/doc/724142/
3. http://www.himvani.com/news/2009/01/09/does-your-wife-torture-you-contact-man-cell/

The post What to do if you are subjected to mental torture and cruelty appeared first on iPleaders.

In this blog post, Pravesh Naveriya, from RDVV – Jabalpur discusses the ouster of Cyrus Mistry as the Chairman of Tata and Sons. 

The Corporate Fight  

The battle between the only CEO who is not a part of the Tata Family and the management of Tata and Sons has served as a mirror for all the persons working in a corporation. This ugly fight between the management and the CEO of the Indian Corporation which is included among the top five contributors to the Indian Economy has once again proved that it’s the owners or the shareholders who always have the upper hand in corporations and the employees are mere puppets whose control is with the management.

Cyrus Mistry joined the board of Shapoorji Pallonji Group, the biggest shareholder of Tata and Sons in 1991 as Director and he was appointed as the Managing Director of the group in 1994. Shapoorji Pallonji holds around 18% of the Tata and Sons shares.

October 24, 2016

• The fight between the management and the Chairman of the Tata and Sons flashed across the world when Mr Cyrus Mistry was removed from his office, and Mr Ratan Tata was appointed as the Interim Chairman of the group. The next move of Ratan Tata was that he wrote a letter to the Prime Minister, regarding the removal of the Chairman of the group.
• It was reported that the decision of removal of Cyrus Mistry from his office is not something which has happened all of sudden rather it was under consideration from a very long time.
• Former Solitary General of India Mohan Parasaran confirmed that the group had approached him a month ago, regarding the legal consequences of the removal. It is also to be considered that the removal is not due to any personal reasons rather it is for the reason that Cyrus Mistry was not able to fulfil the managerial requirements of the board and the group.
• The removal of Cyrus Mistry is termed to be legal as per the provisions of the Indian law. The removal of Cyrus Mistry was executed by getting a majority against his removal from the office, and for this a notice had to be served 7 days before the meeting as per Section 173 of the Act, but it could be waived if at least one Independent Director is present in the meeting or if the decision has been ratified by the majority of the Directors.

October 25, 2016

• Shapoorji Pallonji group made a statement that they are going through the circumstances and there is no consideration for any legal action against Tata and Sons, Cyrus Mistry too went on to use the same note and denied that he is thinking of any legal steps.
• Tata and Sons filed a caveat in the Supreme Court, High Court and the National Company Law Tribunal (NCLT) so that no ex-parte order can be passed against the removal of Cyrus Mistry without their part being heard. A caveat is a notice which is filed by the party which is expecting a Legal Action against him from another party.
• Cyrus Mistry still said that he was not willing to take any legal action against the Tata group but did consult a law firm regarding the legal actions which could be taken.
• Ratan Tata asked the shareholders and the senior members of the group to continue to work without any panic.
• Two new Additional Directors were appointed on the Tata and Sons board.

October 26, 2016

• The Stocks of listed Tata Companies fell by 3.16% in the stock market after the removal of Cyrus Mistry from his office which created a lot of panic in the market.
• Cyrus Mistry came out with the point that he was not given an appropriate opportunity to defend himself which has been provided under law.
• Cyrus Mistry wrote a letter that he was shocked that he had been removed from his office on account of non-performance and he alleged that the board never gave him the appropriate opportunity.
• Cyrus Mistry argued that the Nano project had become a burden on the company but it is being continued only due to emotional reasons, and there is a lot of fraudulent in the manner the money is being invested, and the loans are given to different projects by the company.
• The Securities and Exchange Board of India (SEBI), made a statement that they are keeping a track on the case and will make sure that there is no fraud or irregularity in the stock market relating to the prices of the shares of Tata and Sons, as it is expected that the common or small shareholders may become prone to fraud due to the indifferences arriving between the Management and the Chairman of the group.

October 27, 2016

• Shares of various Tata group stocks were going down, Tata Power and Tata Motor were 3% down whereas Tata Steel was trading at 2% low.
• The Tata group responding to the allegations made a statement that it was unfortunate and unprofessional from the side of Cyrus Mistry that he was causing false charges upon one of the most trusted groups of the country and the office of which he had been with for such a long time.
• Ratan Tata regretted that a confidential report of the board went out in public and this had created all the confusions.
• The Aviation Minister of the country assured that the matter would have to follow the “law of the land” and it would be seen that no harm is done to the public.
• The Top Officials of the company made sure that this confusion arising due to the fight between the Management and the Chairman would not affect the reputation or progress of the group.

October 28, 2016

• The find for the new Chairman had started inside the office as per the reports, but it was kept confidential. The candidates who were being examined were the Chief Executive Officer of Tata Consultancy Services, N. Chandrasekaran, Jaguar Land Rover Head Mr Rafh Spelt the brother-in-law of Cyrus Mistry and a member of the founder family, Trent Ltd Chairman Mr Noel Tata.
• Ratan Tata said that the allegations of the mismanagement or the trust of investments are false as the investments were made only after the board decided that to do.
• Cyrus Mistry responded to this and said that he was shocked that Ratan Tata was giving false facts and no one in the group was aware of all that he was claiming to happen.

Legal Fight

• Cyrus Mistry filed his reply along with the Affidavit to the National Company Law Tribunal (NCLT), in which he said that he was not allowed to run the group as per his own, rather it interfered by the members of the Tata Trust Group which hold almost 66% of the shares of the group’s parent company. He even said that Ratan Tata, Noshir Soonawala and R. Venkataraman interfered a lot in the running of the company and he was not allowed to work freely rather he was at all times put under the pressure of working as per the wishes of Ratan Tata.
• Cyrus Mistry has provided the documents as evidence to prove that there was a lot of interference by Ratan Tata in working of his office. As evidence, he had provided the messages which were exchanged between him and Ratan Tata which is more than 555 in number, which very clearly proves that there was a lot of interference on the part of Ratan Tata.
• Cyrus Mistry also said in his reply that he was pushed too far for higher sales of the Nano Car which according to him was doing no good for the company rather it was becoming a burden on the company but as the car was the dream project of Ratan Tata he was not willing to stop its production which was costing the company and the entire group at large. He also said that he wanted to use Nano for Ola instead of Uber as Ratan Tata himself had a personal investment in Ola.
• Cyrus Mistry alleged that he was not the only one who was interfered by Ratan Tata, but there were some occasions when he interfered with the working of many senior members of the group as he is not ready to retire from the group rather he wants to dictate the working of the group.
• He further said that what was started with “suggestions” in the year 2013 eventually resulted in assertions of rights under the Article of Associations. The Article of Association was changed when he joined the office of Chairman.

Removal of Cyrus Mistry from his office

• A Chairman is elected as well as removed by the board members in the General Meeting of the board. A Chairman may either file his resignation, or he may be removed from his office by the board members if he has committed certain acts which are prohibited under the Companies Acts of the country or the Article of Association of the company.
• The Chairman will have to vacate his office if there is a no-confidence motion passed against him in the general board meeting of the company. A no-confidence motion is considered to be passed when the majority of the board decides to remove the Chairman from his office.
• A no-confidence motion is to be initiated by a member of the board who wants to remove the Chairman from his office then the other members of the board may either support his decision or may vote against his decision one by one. If the move to remove the Chairman gets the majority, then a no-confidence motion is said to have been passed against the Chairman, and then he shall vacate his office.
• The Chairman shall be given an appropriate opportunity of being heard, and if he can bring the board members in his confidence then he may continue to hold his office otherwise, he will have to vacate his office.
• When the appointment of the Chairman has been done as per the Article of Association of the company then the Chairman can only be removed by the board members if he has committed any fraud or he has been involved in any kind of mismanagement inside the company, or he is found to be disloyal with the company.

Conclusion

Cyrus Mistry, as well as the Management of Tata and Sons, have filed a caveat in the Supreme Court, High Court, as well as the National Company Law Tribunal (NCLT), avoiding any ex-parte orders against them. Cyrus Mistry still enjoys the support of the biggest shareholder of the group, although this cannot help him legally, but he could use this fact to pressurise the group. He has filed his reply stating that he was removed from his office illegally and has submitted certain documents as evidence to prove that Mr Ratan Tata has been interfering in his work.

The post A Case Study On The Ouster of Cyrus Mistry as the Chairman appeared first on iPleaders.

In this blog post, Sourabh Makhija, from RDVV – Jabalpur discusses with illustrations the various stages of a criminal trial. 

Introduction

Any act or omission which is prohibited by law and is punishable by law is a crime. The punishment for such crime is decided by following procedures of criminal trial. The criminal trials in India are well established statutory, administrative and judicial framework. The whole criminal law consists of three main acts –

1. Indian Penal Code, 1860
2. Code of Criminal Procedure, 1973
3. Indian Evidence Act, 1872.

Classification of Criminal Law

Indian Penal Code and Code of Criminal Procedure are together known as “twin sisters” of criminal law.

Code of Criminal Procedure (Cr. P. C.) is the procedural law for conducting a criminal trial in India. The procedure includes the manner for collection of evidence, examination of witnesses, interrogation of accused, arrests, safeguards and procedure to be adopted by Police and Courts, bail, the process of criminal trial, a method of conviction, and the rights of the accused of a fair trial by principles of natural justice.

Indian Penal Code (IPC) is the primary penal law of India, which applies to all offences. Indian Evidence Act (IEA) is a comprehensive, treaty on the law of “evidence”, which can be used in the trial, the manner of production of the evidence in a trial, and the evidentiary value which can be attached to such evidence.

Types of Criminal Trial

According to the Code of Criminal Procedure, a Criminal Trial is of three types. Depending upon the type of criminal trial the different stages of a criminal trial are discussed below.

Warrant Cases

According to Section 2(x) of Code of Criminal Procedure, 1973 a warrant case is one which relates to offenses punishable with death, imprisonment for life or imprisonment for a term exceeding two years. The trial in warrant cases starts either by the filing of FIR in a police station or by filing a complaint before a magistrate. Later, if the magistrate is satisfied that the offense is punishable for more than two years, he sends the case to the sessions court for trial. The process of sending it to sessions court is called “committing it to sessions court”.

Important features of a warrant case are:

• Charges must be mentioned in a warrant case
• Personal appearance of accused is mandatory
• A warrant case cannot be converted into a summons case
• The accused can examine and cross-examine the witnesses more than once.
• The magistrate should ensure that the provisions of Section 207 are .
• Section 207 of Cr. P.C. 1973, include the supply of copies such as police report, FIR, statements recorded or any other relevant document to the accused.

The stages of trial in warrant cases are given from Section 238 to Section 250 of the Code of Criminal Procedure, 1973.

Different Stages of Criminal Trial in a Warrant Case when instituted by the police report

• First Information Report: Under Section 154 of the Code of Criminal Procedure, a FIR or First Information Report is registered. FIR puts the case into motion. A FIR is information given by someone (aggrieved) to the police relating to the commitment of an offense.
• Investigation: The next step after the filing of FIR is the investigation by the investigating officer. A conclusion is made by the investigating officer by examining facts and circumstances, collecting evidence, examining various persons and taking their statements in writing and all the other steps necessary for completing the investigation and then that conclusion is filed to the magistrate as a police report.
• Charges: If after considering the police report and other important documents the accused is not discharged then the court frames charges under which he is to be trialled. In a warrant case, the charges should be framed in writing.
• Plea of guilty: Section 241 of the Code of Criminal Procedure, 1973 talks about the plea of guilty, after framing of the charges the accused is given an opportunity to plead guilty, and the responsibility lies with the judge to ensure that the plea of guilt was voluntarily made. The judge may upon its discretion convict the accused.
• Prosecution evidence: After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support their evidence with statements from its witnesses. This process is called “examination in chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document.
• Statement of the accused: Section 313 of the Criminal Procedure Code gives an opportunity to the accused to be heard and explain the facts and circumstances of the case. The statements of accused are not recorded under oath and can be used against him in the trial.
• Defence evidence: An opportunity is given to the accused in a case where he is not being acquitted to produce so as to defend his case. The defense can produce both oral and documentary evidence. In India, since the burden of proof is on the prosecution the defense, in general, is not required to give any defense evidence.
• Judgement: The final decision of the court with reasons given in support of the acquittal or conviction of the accused is known as judgement. In case the accused is acquitted, the prosecution is given time to appeal against the order of the court. When the person is convicted, then both sides are invited to give arguments on the punishment which is to be awarded. This is usually done when the person is convicted of an offense whose punishment is life imprisonment or capital punishment.

Stages of Criminal Trial in a Warrant Case when Private Complaint institutes case

• On the filing of the complaint, the court will examine the complainant and its witnesses on the same day or any other day to decide whether any offense is made against the accused person or not.
• After examination of the complainant, the Magistrate may order an inquiry into the matter and submit a report for the same.
• After examination of the complaint and the investigation report, the court may come to a conclusion whether the complaint is genuine or whether the prosecution has sufficient evidence against the accused or not. If the court does not find any sufficient material through which he can convict the accused, then the court will dismiss the complaint and record its reason for dismissal.
• After examination of the complaint and the inquiry report, if the court thinks that the prosecution has a genuine case and there are sufficient material and evidence with the prosecution to charge the accused then the Magistrate may issue a warrant or a summon depending on the facts and circumstances.

Summon Cases

According to Section 2(w) of Code of Criminal Procedure, 1973, Those cases in which an offense is punishable with an imprisonment of fewer than two years is a summon case. A summon case doesn’t require the method of preparing the evidence. Nevertheless, a summon case can be converted into a warrant case by the magistrate if after looking into the case he thinks that the case is not a summon case.

Important points about summons case

• A summons case can be converted into a warrant case.
• The person accused need not be present personally.
• The person accused should be informed about the charges orally. No need for framing the charges in writing.
• The accused gets only one opportunity to cross-examine the witnesses.

The different stages of criminal trial in a summon case are given from Section 251 to Section 259 of the Code of Criminal procedure.

Stages of Criminal Trial in a Summons Case

• Pre-trial: In the pre-trial stage, the process such as filing of FIR and investigation is conducted.
• Charges: In summons trials, charges are not framed in writing. The accused appears before the court or is brought before the court then the Magistrate would orally state the facts of the offense he is answerable.
• Plea of guilty: The Magistrate after stating the facts of the offense will ask the accused if he pleads guilty or has any defense to support his case. If the accused pleads guilty, the Magistrate records the statement in the words of the accused as far as possible and may convict him on his discretion.
• Plea of guilty and absence of the accused: In cases, where the accused wants to plead guilty without appearing in the court, the accused is supposed to send Rs.1000/- by post or through a messenger (lawyer) to the Magistrate. The absentee should also send a letter containing an acceptance of guilt and the amount of fine provided in the summons. The Magistrate can on his discretion convict the accused.
• Prosecution and defense evidence: In summons case, the procedure followed is very simple and elaborate procedures are eliminated. If the accused does not plead guilty, then the process of trial starts. The prosecution and the defense are asked to present evidence in support of their cases. The Magistrate is also empowered to take the statement of the accused.
• Judgement: When the sentence is pronounced in a summons case, the parties need not argue on the amount of punishment given. The sentence is the sole discretion of the judge. If the accused is acquitted, the prosecution has the right to appeal. This right to appeal is also extended to the accused.

Summary Trial

Cases which generally take only one or two hearings to decide the matter comes under this category. The summary trials are reserved for small offenses to reduce the burden on courts and to save time and money. Those cases in which an offense is punishable with an imprisonment of not more than six months can be tried in a summary way. The point worth noting is that, if the case is being tried in a summary way, a person cannot be awarded a punishment of imprisonment for more than three months.

The trial procedure is provided from Section 260 to Section 265 of the Code of Criminal Procedure.

Stages of Criminal Trial in Summary Cases

• The procedure followed in the summary trial is similar to summons-case.
• Imprisonment up to three months can be passed.
• In the judgement of a summary trial, the judge should record the substance of the evidence and a brief statement of the finding of the court with reasons.

References:

1. http://criminaltrials.blogspot.in/2012/09/stages-of-criminal-trial.html
2. http://www.lawyersclubindia.com/experts/Stages-in-criminal-trial-84286.asp
3. http://www.mondaq.com/pdf/clients/318472.pdf
4. http://lawfarm.in/blogs/process-of-criminal-trial-and-proceedings-in-india

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In this blog post, Sourabh Makhija, from RDVV – Jabalpur describes a relinquishment deed as well as the process of registering a relinquishment deed. 

Introduction of Relinquishment Deed

Many times it happens that a person dies intestate (without leaving a will or testamentary will) in such cases the property of that person is inherited by his/her legal heir. Then it’s up to the heirs as what they want to do with the said property. If the heir’s come to the conclusion of separation of property, then anyone of the co-owner (who is not willing to keep the property) can relinquish his share in favour of the other owner. This process of transferring property from one owner approving the other is known as “Relinquishment of Property”.

Meaning of Relinquishment Deed

Relinquishment deed is a legal document/instrument where a legal heir gives up or releases his legal rights in an inherited parental property for another legal heir such as his mother, son, daughter, brother, sister, etc.

The term relinquishment refers to the abandoning and surrender of the rights, title, and interest, by one co-owner of property for the other co-owners. The consequences of relinquishment of one co-owner’s share in property are the enlargement of the shares of the other co-owners.

Essentials Elements of Relinquishment Deed

• Legal document: Relinquishment deed is a legal document. Through this legal document, an heir can transfer or release his legal right of the inherited property.
• Consequences: The effects of such transfer of rights are the release of the share of one co-owner and the enlargement of the shares of the other co-owners.
• Irrevocable: A release or relinquishment deed is irrevocable even if it made without any consideration. For a valid relinquishment, the property must be owned by more than one person.
• Relinquishment cannot be done in favour of a 3rd person: Relinquishment of property can’t be made in favour of a person other than a co-owner. If a relinquishment is made in favour of a person who is not a co-owner, the transaction will be treated as a gift.
• Must be in writing: The relinquishment of right in the case of immovable property needs to be done only through a written document called relinquishment deed which must be signed by all the parties and witnessed by at least two witnesses.
• Must be registered: Relinquishment deed falls under Section 17 of the Registration Act, 1908 and hence, a release of rights in the immovable property must be registered. The registration takes place in the office of the sub-registrar within whose jurisdiction the property is situated.
• Consideration: A relinquishment deed can be done with or without any consideration.
• Easy process: A relinquishment deed can be made and registered in few days, and this process is not expensive.

Who can Relinquish Property

The relinquishment of property can only be done by someone who has a share in the property. In case there is more than one owner in a property, either of the co-owners can do relinquishment. For a valid relinquishment, the essentials of a valid contract are to be followed other than the compensation.

Illustration: A died intestate leaving behind his three sons. A was the owner of a land which after his death was inherited by his three sons. Later, one of the son X shows his interest for not keeping any share in the said property for which he offered relinquishment. The relinquishment deed was made in favour of other two owners. The relinquishment deed transferred every right of X in the property to his brothers.

In whose name can a property be Relinquished?

The relinquishment of property can only be done in the name of a person who is co-owner or co-sharer in the property. Or in other words, relinquishment of property can not be done in the name of any third person other than the already existing co-owner. Hence, for a valid relinquishment, the person getting the relinquished property must be a legal heir.

A property can also be transferred to minors; such cases will be governed by the Indian Contract Act, 1872.

Illustration: A died intestate leaving behind his three sons. A’s property was equally shared by the sons. Later, one of the son X because of some personal reasons relinquished his property to Z (his friend) for consideration which is not a valid relinquishment.  

Difference between Relinquishment Deed and Gift Deed

Registration of Relinquishment Deed

As a relinquishment deed is a legal document by which a person formally gives up his claim to another person, the said deed must be systematically executed and registered as per Section 17 of the Registration Act, 1908.

For the purpose of getting a relinquishment deed registered it is advised to consult a lawyer who can draft the deed for you, and in case you know the legal methodology and terminology you can do that on your own. Following steps are to be followed to get a relinquishment deed registered:

• Preparation of Relinquishment Deed: A Relinquishment Deed is to be prepared on a stamp paper of Rs.100. Ensure that every detail of the relinquished property is mentioned in the deed.
• Present the deed before Sub-Registrar of Assurances: Once the deed is prepared on a stamp paper, it is submitted before sub-registrar of assurances within whose jurisdiction the property is situated for registration along with a registration fee which varies from state to state, but it is somewhere between Rs. 100 – Rs. 250 in every state.
• Witnesses and other formality: Signatures of two witnesses will be required to get a deed registered. Other documents such as passport size photos, identity proof (driving license, Adhar card, etc.) will be needed.

Is it possible to register a document at a person’s private residence?

Under Sections 31 of the Act, a provision has been made authorising the Registering Officer, on special cause being shown ( for instance if the person is physically handicapped ) to attend at the residence of any person desiring to present a Relinquishment Deed for registration and accept for registration such a deed, provided Registering Officer is satisfied that the particular cause shown as sufficient.

Format of Relinquishment Deed

References:

1. http://www.lawyersclubindia.com/experts/Relinquishment-deed-149331.asp
2. http://www.lawyersclubindia.com/forum/Relinquishment-deed-Please-Help–10643.asp
3. https://www.quora.com/What-is-the-difference-between-Release-Deed-Relinquishment-Deed-and-Oral-Declaration-of-Gift-Deed
4. http://www.stampduty.in/Registration/page_1341359.html
5. https://indiankanoon.org/doc/561156/

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In this blog post, Pravesh Naveriya, from RDVV – Jabalpur discusses the concept of “Patta” and “Patta Land”. 

As the population of the world is continuously increasing and people are migrating from their towns and villages to cities in search of a better lifestyle and living standards, the cities need to be prepared for the challenge. The rate at which the migration and population are increasing is alarming, but at the same time, it is an opportunity to earn money. This phenomenon is causing real estate prices across the world to rise.

As more and more people are coming, more and more houses are needed to accommodate them. For this reason, people are buying properties to keep it as an asset and sell it when the rates are high. This fact also attracts the frauds and the mischiefs. They take possession of any vacant property and then claim that property to be theirs. For this reason, the buyers, as well as the sellers, need to make sure that the property which they are buying is free from all this junk. This problem is solved by “Patta”.

What is a Patta?

A Patta is a crucial document which tells about the ownership of a particular property. It indicates about the person who has the rights to the property. For this reason, it is also known as “Record Of Rights (ROR)”. The person who has his name registered in the Patta is considered to be the owner to be that property.

• Patta is a legal document which has been issued by the appropriate government
• Patta establishes the ownership of a person over a particular piece of land
• The name on a Patta Land is a sufficient document to prove that the land belongs to the named person and that the owner of that property.

What type of properties need Patta?

Although all the properties can be registered under Patta Land, the properties which are not visited quite frequently by the owner must be compulsorily registered.

• The plots which are left out without any construction needs the Patta document the most.
• The buildings or any other property on which construction has been done can also get a Patta land registration.
• The question of ownership can be answered by possession or any other document proving that the property is in possession for a long time, but that is not the case with unconstructed plots.

How to get your name registered under Patta Land?

• A Patta is registered by the Tehsildar of that particular area.
• To get your name registered under the Patta, you have to make an application to the Tehsildar, requesting him to get your name registered.
• He could after examining the application either accept the application or will reject it.
• He could either ask you to show the property and would investigate the property by himself or may ask you to provide certain documents which could prove that the new owner of that property is you and then match those with the ones which are available in the revenue office and then change it.

The prescribed procedure hardly happens. The Tehsildar rarely makes any attempt to make your name registered. Instead, you have to make an effort yourself to repeatedly ask him to do your work. He may also ask to survey the property to ensure its ownership, and it is your responsibility to make him do so if he has asked for it.

Transfer of Patta

A Patta shall be transferred as soon as the property is sold. The proceedings for the transfer to Patta do take time that is why it is necessary that the procedure shall start as quickly as possible.

• The process for transferring of Patta is the same as that of registering a Patta Land.
• The person who has bought the land must make an application to the Tehsildar regarding the transfer of name in the Patta.
• The Tehsildar may either reject or may accept the application after examination of the property and the documents which have been submitted by the appellant.
• The transfer of a Patta of a person who has died either leaving a will or not leaving a will, the Patta needs to be transferred as soon as possible.
• The legal heirs, if any, shall approach the Tehsildar with the documents proving to be his legal heirs and make an application for the transfer of Patta Land.
• If the person has left a will then the ones who are allotted that property under the will shall approach the Tehsildar as soon as possible to get their name registered under Patta Land, providing him with the copy of the original will and identity proof that you are the beneficiary who has been allotted the property by the testator.

Important points regarding Patta

• A Patta is one of the best proofs of ownership of a particular property. If any person has a Patta Land registered under his name, then he is the legal owner of that particular land.
• For the evidence of ownership in a vacant land, the Patta is the most important document. As for a vacant land or plot, there is no other document which can prove the possession of that land.
• The buyer or the beneficiary himself has to make a move and approach the Tehsildar Office and shall not wait for the revenue department or the Tehsildar to contact him.
• There are individual states which have started online Patta registration. Karnataka was the first state to start online Patta registration.
• The State Governments are trying to make the process easy and convenient for the buyers so that they are not supposed to rush to the Tehsildar to get their name registered under Patta Land.
• The charges which the buyer or the beneficiary has to pay for the transfer of Patta Land is different in different states. The State Governments have the power to regulate those charges.

Conclusion

The Patta of a particular property is the most important document to prove the ownership of a person over a particular property. The name which is registered under the Patta of a particular property is considered to be the owner of that property. The State Governments are trying their best to make this hectic procedure of applying and getting your name registered under Patta as comfortable and convenient as possible for the applicants

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