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Indian Contract Act

INDIAN CONTRACT ACT

The Indian Contract Act, 1872 prescribes the law relating to contracts in India and is the key act regulating Indian contract law. The Act is based on the principles of English Common Law. It is applicable to all the states of India. It determines the circumstances in which promises made by the parties to a contract shall be legally binding. Under Section 2(h), the Indian Contract Act defines a contract as an agreement which is enforceable by law.

Purpose of the contract act

The basic purpose of contract act is to provide a framework within which individuals can freely contract. The contract can legally bind the contracting parties by the creation of laws which are applicable only to the very individuals that create the contract and its subsequent legally binding laws. prescribes the law relating to contracts in India and is the key act regulating Indian contract law.

Essentials of a valid contract

Offer and acceptance
Competency of parties
Free consent
Lawful consideration
Lawful object

Types of Contract based on performance

Executed Contracts - A contract between two or more parties is said to be executed when the act or forbearance promised in the contract has been performed by one, both or all parties. Basically, it means that whatever the contract stipulated, has been carried out. Thus the contract has been executed.

Executory Contracts - In an executory contract, the consideration is either the promise of performance or an obligation. In such contracts, the consideration can only be performed sometime in the future, hence the name executory contract. Here the promises of consideration simply cannot be performed immediately.

Unilateral Contracts - As the name suggests these are one-sided contracts. It usually comes into existence when only one party makes a promise, which is open and available to anyone who wishes to or can fulfil the said promise. The contract will only be fulfilled once someone fulfils the promise.

Bilateral Contracts - By contrast, a bilateral contract is one that has two parties. It is a traditional type of contract most commonly known and occurring. Here both parties agree to the terms of the agreement and thus enter into a contract. Hence it is also known as a reciprocal contract In bilateral contracts, both parties have usually agreed to a time frame

Types of Contracts On The Basis Of Validity

Valid Contracts-The Valid Contract as discussed in the topic on “Essentials of a Contract” is an agreement that is legally binding and enforceable. It must qualify all the essentials of a contract.
Void Contract Or Agreement - The section 2(j) of the Act defines a void contract as “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”. This makes all those contracts that are not enforceable by a court of law as void.
Voidable Contract - These types of Contracts are defined in section 2(i) of the Act: “An agreement which is enforceable by law at the option of one or more of the parties thereto, but not at the option of the other or others, is a voidable contract.
Illegal Contract - An agreement that leads to one or all the parties breaking a law or not conforming to the norms of the society is deemed to be illegal by the court. A contract opposed to public policy is also illegal.
Unenforceable Contracts - Unenforceable contracts are rendered unenforceable by law due to some technical. The contract can’t be enforced against any of the two parties.

Types of Contract – Based on Formation

Express Contract - The Section 9 of the Act defines what is meant by the term express: “Promises express and implied —In so far as the proposal or acceptance of any promise is made in words, the promise is said to be express.”
Implied Contracts - The second part of section 9 of the Act defines what is meant by an implied contract: “In so far as such proposal or acceptance is made otherwise than in words, the promise is said to be implied.”
Quasi-Contract - They are not contracts in the sense that no agreements are made between any of the parties. In fact, there is no contract prior to some court order. Let us first see an example and then we will get a clear idea of what we mean by Quasi-Contract.
E-Contract - When a contract is formed by the use of electronic devices and means, it is called an electronic contract or an e-contract. The electronic means and devices may include emails, tests, telephones, digital signatures etc. They are also known as the Cyber contracts, the EDI contracts or the Electronic Data Interchange contracts. The terms of the contract are listed by electronic means or implied by the actions of the users.

Different types of Agreement

Valid agreement

A valid agreement may be defined as an agreement that, if enforceable by law, shall become a contract and make the parties to the agreement binding to the conditions thereof. An agreement is defined under Section 2(e) of the Indian Contract Act, 1872 (the Act). It states that “Every promise and every set of promises, forming the consideration for each other, is an agreement”. Thus, more than often, a valid agreement becomes a contract.

The essential conditions of a valid agreement include:

The agreement shall have a valid consideration.
The parties shall be competent to contract as per Section 11 and Section 12 of the Act.
The consent of the parties is free and uninfluenced.
The object of the agreement is lawful.

Void agreement

A void agreement has been defined under Section 2(g) of the Act. It states that “An agreement not enforceable by law is said to be void”. In addition to the definition, the provisions of the Act declare certain agreements to be void, as the objects of such agreements are unlawful. These agreements include:

Agreements of which consideration or objects are unlawful in part as mentioned under Section 24 of the Act Illustration - A offers to purchase a lawful plot of land and an unlawful parking space from B for a sum of Rs. 20 lakhs. The agreement shall be void as one of the objects is illegal.
Agreements without consideration under Section 25 of the Act - Illustration - A, without any reciprocal promise, agrees to pay a sum of Rs. 5000 to B. This shall be a void agreement.
Agreements restraining marriage under Section 26 of the Act Illustration - A restrains his daughter B to marry C, who is a physically disabled person. This shall be a void agreement.
Agreements restraining trade under Section 27 of the Act – Illustration- A enters into an agreement with B to restrain B from establishing a competing business in his locality. This agreement shall be void as it puts a restraint on the trade of B.
Agreements restraining legal proceedings under Section 28 of the Act – Illustration -An agreement between A and B provides that any dispute arising out of the course of the agreement shall be settled mutually and neither of the two shall approach the Court. This clause makes the whole agreement void.
Agreements with an uncertain meaning under Section 29 of the Act - Illustration -A agrees to sell to B “a hundred tons of oil”. There is nothing whatsoever to show what kind of oil was intended. The agreement is void for uncertainty.
Agreements of wagering under Section 30 of the Act – Illustration -An agreement to pay a sum of money to either of the parties on the basis of winning or losing of a cricket team shall be deemed void.
Agreements to perform an impossible duty under Section 56 of the Act Illustration - A and B contract to marry each other. Before the time is fixed for the marriage, A goes mad. The contract becomes void.

Wagering Agreements

Wagering Agreements is when the first party promises to pay the second party on the occurrence of a certain event and the second party agrees to pay to the first party on the event not happening. It is between two parties of rational mind who understand they shall get profit or that shall face loss. As stated above, all wagering agreements fall under Section 30 and they are considered void.

An example -A and B agree with each other that if a ball hits a pot, A will pay Rs. 100 to B and if the ball does not hit the pot, B will pay A Rs. 100. Such an agreement is a wagering agreement and hence is void. In order for a wagering agreement to be considered so, the following elements should be present.

Both parties should have an equal opportunity to win or lose.
The event the wager is done on should be out of the control of both the parties.
The only interest of the parties to enter the agreement should be to win or lose. No other motive should be present.
The wager agreement is fully dependent upon the happening of the futuristic event.
There should be a promise made by both the parties to pay the money or the consideration according to the conditions of the agreement.

Contingent Agreement

Contingent Agreements are under Section 31. Unlike wager agreements, they are valid contracts. Contingent agreements shall be executed on the basis of a promise which is contingent on the happening or non-happening of an uncertain future event. The essentials of this agreement are stated below.

There must be a valid contract to do or abstain from doing something.
The condition for which the contract has been entered into must be a future event, and it should be uncertain.
The event on which the agreement is based should not be a part of the collateral.
The event should not be dependent on the promisor.

Voidable agreement

A voidable agreement may be defined as an agreement that may be revoked by either of the parties to the agreement due to various legal reasons. Such an agreement, when enforceable by law, shall be termed as a contract voidable at the option of a party.

Difference between void and voidable agreements

Void Agreements	Voidable Agreements
Considered invalid from the start.	Declared invalid by the parties later on due to certain reasons.
Invalid at face value.	Valid at face value.
No performance is possible.	Performance is possible until declared invalid.
It is non-existent and cannot be upheld by any law.	It is an existing agreement and is binding to one party involved in the contract.

Express and implied agreements

As stated above, an agreement may be defined as a promise coupled with consideration. Section 9 of the Act provides the meaning of express and implied promises. It states that any promise made through words by the parties shall be considered as an express promise, and any promise made other than words shall be considered as an implied promise. Thus, an express agreement shall be an agreement wherein the promise is express, and an implied agreement shall be an agreement wherein the promise is implied.

Illegal Agreements

Any agreements against the provisions of the law in force in India shall be considered an illegal agreement. Either of the two conditions, illegal object or illegal consideration, shall render the agreement illegal. Even if the content of an agreement compels the parties to perform an illegal act, it shall be an illegal agreement.

Rules regarding Valid Acceptance

Acceptance can only be given to whom the offer was made
In the case of a specific proposal or offer, it can only be accepted by the person it was made to. No third person without the knowledge of the offeree can accept the offer.
It has to be absolute and unqualified
Acceptance must be unconditional and absolute. There cannot be conditional acceptance that would amount to a counteroffer which nullifies the original offer. Let us see an example. A offers to sell his cycle to B for 2000/-. B says he accepts if A will sell it for 1500/-. This does not amount to the offer being accepted, it will count as a counteroffer.
Acceptance must be communicated
For a proposal to become a contract, the acceptance of such a proposal must be communicated to the promisor. The communication must occur in the prescribed form, or any such form in the normal course of business if no specific form has been prescribed.
It must be in the prescribed mode
Acceptance of the offer must be in the prescribed manner that is demanded by the offeror. If no such manner is prescribed, it must be in a reasonable manner that would be employed in the normal course of business.
Implied Acceptance
Section 8 of the Indian Contract Act 1872, provides that acceptance by conduct or actions of the promisee is acceptable. So if a person performs certain actions that communicate that he has accepted the offer, such implied acceptance is permissible. So if A agrees to buy from B 100 bales of hay for 1000/- and B sends over the goods, his actions will imply he has accepted the offer.

Creation of an Agency

According to section 185 of the Indian Contract Act, 1872, no consideration is necessary to create an agency.

Gifts
The rule of no consideration no contract does not apply to gifts. Explanation (1) to Section 25 of the Indian Contract Act, 1872 states that the rule of an agreement without consideration being void does not apply to gifts made by a donor and accepted by a donee.
Bailment
Section 148 of the Indian Contract Act, 1872, defines bailment as the delivery of goods from one person to another for some purpose. This delivery is made upon a contract that post accomplishment of the purpose, the goods will either be returned or disposed of, according to the directions of the person delivering them. No consideration is required to effect a contract of bailment.
Charity
If a person undertakes a liability on the promise of another to contribute to charity, then the contract is valid. In this case, the no consideration no contract rule does not apply.

Proposal or Offer

According to the Indian Contract Act 1872, proposal is defined in Section 2 (a) as “when one person will signify to another person his willingness to do or not do something (abstain) with a view to obtain the assent of such person to such an act or abstinence, he is said to make a proposal or an offer.”

Let us look at some features or essentials of such an offer

The person making the offer/proposal is known as the “promisor” or the “offeror”. And the person who may accept such an offer will be the “promisee” or the “acceptor”.
The offeror will have to express his willingness to do or abstain from doing an act. Only willingness is not enough. Or simply a desire to do/not do something will not constitute an offer.
An offer can be positive or negative. It can be a promise to do some act, and can also be a promise to abstain (not do) some act/service. Both are valid offers.
Classification of Offer
There can be many types of offers based on their nature, timing, intention, etc. Let us take a look at the classifications of offers.
General Offer
A general offer is one that is made to the public at large. It is not made any specified parties. So any member of the public can accept the offer and be entitled to the rewards/consideration. Say for example you put out a reward for solving a puzzle. So if any member of the public can accept the offer and be entitled to the reward if he finishes the act (solves the puzzle.)
Specific Offer
A specific offer, on the other hand, is only made to specific parties, and so only they can accept the said offer or proposal. They are also sometimes known as special offers. Like for example, A offers to sell his horse to B for Rs 5000/-. Then only B can accept such an offer because it is specific to him.
Cross Offer
In certain circumstances, two parties can make a cross offer. This means both make an identical offer to each other at the exact same time. However, such a cross offer will not amount to acceptance of the offer in either case.
Counter Offer
There may be times when a promise will only accept parts of an offer, and change certain terms of the offer. This will be a qualified acceptance. He will want changes or modifications in the terms of the original offer. This is known as a counteroffer. A counteroffer amounts to a rejection of the original offer.

Essentials of a Valid Offer

Here are some of the few essentials that make the offer valid.

Remedy for breach of contract

Parties to a contract are legally expected to perform their respective obligations , so naturally, the law frowns upon a breach by either party. Therefore, as soon as one party commits a breach of the contract, the law grants to the other party three remedies. He may seek to obtain:

Damages for the loss sustained, or
A decree for specific performance, or
An injunction.

Exceptions to the Doctrine of Privity of Contract

A stranger or a person who is not a party to a contract can sue on a contract in the following cases:

Consumer Protection Act 2019

The Consumer Protection Act, 2019 comes in to force from i.e. 20th July 2020. In the Act Central Consumer Protection Authority (CCPA) has been established to promote, protect and enforce the rights of consumers.The basic aim of the Consumer Protection Act, 2019 to save the rights of the consumers by establishing authorities for timely and effective administration and settlement of consumers’

The CCPA will be empowered to conduct investigations into violations of consumer rights and institute complaints / prosecution, order recall of unsafe goods and services, order discontinuance of unfair trade practices and misleading advertisements, impose penalties on manufacturers/endorsers/publishers of misleading advertisements. The Important amendment in the act is unfair trade practice by e-commerce platforms has been added in the act.

Under this act every e-commerce entity is required to provide information relating to return, refund, exchange, warranty and guarantee, delivery and shipment, modes of payment, grievance redressed mechanism, payment methods, security of payment methods, charge-back options, etc. including country of origin which are necessary for enabling the consumer to make an informed decision at the pre-purchase stage on its platform.

Definition of Consumer

According to Section 2(7) of the Consumer Protection Act, 2019, "CONSUMER" means

Any person who buys any goods for a consideration which has been paid or promised or partly paid and partly promised, or under any system of deferred payment and includes any user of such goods other than the person who buys such goods for consideration paid or promised or partly paid or partly promised or under any system of deferred payment when such use is made with the approval of such person, but does not include a person who obtains such goods for resale or for any commercial purpose.

There are various rights which have been mentioned in the act following are some of the rights of consumer.

Be protected against marketing of goods and services which are hazardous to life and property;
Be informed of the quality, quantity, potency, purity, standard and price of goods or services;
Be assured of access to a variety of goods or services at competitive prices; and
Seek redressed against unfair or restrictive trade practices.

Consumer Disputes Redressal Commission: Consumer Disputes Redressal Commissions (CDRCs) will be set up at the

District
State
National

Levels. A consumer can file a complaint with CDRCs in relation to:

Unfair or restrictive trade practices;

Defective goods or services;

Overcharging or deceptive charging; and

The offering of goods or services for sale which may be hazardous to life and safety. Complaints against an unfair contract can be filed with only the State and National Appeals from a District CDRC will be heard by the State CDRC. Appeals from the State CDRC will be heard by the National CDRC. Final appeal will lie before the Supreme Court.

Unfair Or Restrictive Trade Practices means

‘Unfair trade practices’ which include:

Manufacturing spurious goods or providing defective services.
Not issuing cash memos or bills for the goods purchased or services rendered.
Refusing to take back or withdraw the goods or services and not refunding the consideration taken for the purchase of the goods or services.
Disclosing the personal information of the consumer.

How do Consumers Benefit from Consumer Protection Act

Unfair contracts: The Act introduced ‘unfair contract’ under of the Act, which includes contracts requiring excessive security deposits to be given by the consumer for the performance of contractual obligations. However, the inclusion of unfair contracts in the Act would enable the consumer to file complaints in such cases and would also keep the fraudulent businesses in check.
False and misleading advertisements: The Act defines the term ‘false and misleading advertisements’ and also lays down strict penalties for such acts or omissions.
Product liability: The term ‘product liability’ has been defined by this Act, which states that it is the duty of the product manufacturer, service provider or seller to compensate for any harm caused to a consumer by such defective product manufactured or service provided to the consumer.
Mediation and alternative dispute resolution: The Act enables the consumer to opt for mediation and alternative dispute resolution mechanisms for speedy and effective settlement of consumer disputes.

Limitation to file complaint under District, State, National Commission

The National Consumer Disputes Redressal Commission (NCDRC) will now have jurisdiction to entertain consumer’s complaints where the value of the goods or services exceeds Rs 2 crore as against the earlier limit of over Rs 10 crore.

District commissions will have jurisdiction to entertain complaints up to Rs 50 lakh worth value of goods or services as against the earlier limit of up to Rs 1 crore. State commissions will now have jurisdictions for more than Rs 50 lakh and up to Rs 2 crore.

After the Act came into force, it was observed that the existing provisions relating to pecuniary jurisdiction of consumer commissions were leading to cases which could earlier be filed in national commission to be filed in state commissions and cases which could earlier be filed in state commissions to be filed in district commissions.

Special Features of Consumer Act

The Act also provides for filing consumers complaints electronically.
The Centre has set up the E-Daakhil Portal, which provides a hassle-free, speedy and inexpensive facility to consumers to conveniently approach the relevant consumer forum, dispensing the need to travel and be physically present to file their grievance.
The portal has many features like e-Notice, case document download link and VC hearing link, filing written response by the opposite party, filing rejoinder by complainant and alerts via SMS/e-mail.

Currently, the facility of E-Daakhil is available in 544 consumer commissions, which includes the national commission and consumer commissions in 21 states and 3 UTs.

So far, more than 10,000 cases have been filed using the E-Daakhil Portal and more than 43,000 users have register

Penalties

Penalties for misleading advertisement: The CCPA may impose a penalty on a manufacturer or an endorser of Fine upto10 Lakhs and Imprisonment upto2 years for a false or misleading advertisement.

In case of a subsequent offence, the fine may extend to Rs 50 lakh and imprisonment of up to 5 years.

CCPA can also prohibit the endorser of a misleading advertisement from endorsing that particular product or service for a period of up to 1 year. For every subsequent offence, the period of prohibition may extend to 3 years. However, there are certain exceptions when an endorser will not be held liable for such a penalty.

Conclusion

Consumer Protect againstthe marketing of products that are hazardous to life and property. It helps to inform about the quality, potency, quantity, standard, purity, and price of goods to safeguard the consumers against unfair trade practices.The Act also introduced new terms such as product liability, unfair contracts, etc. thereby widening the scope of protection of consumer rights and enabling the consumers to file complaints when their rights have been violated under the Act.

Cyber Law

WHAT IS CYBER LAW

Cyber law in India is not a separate legal framework. It’s a combination of Contract, Intellectual property, Data protection, and privacy laws. With the Computer and internet taking over every aspect of our life, there was a need for strong cyber law. Cyber laws supervise the digital circulation of information, software, information security, e-commerce, and monetary transactions.

"Cyber" is a prefix used to describe a person, thing, or idea as part of the computer and information age. Taken from kybernetes, Greek word for "steersman" or "governor," it was first used in cybernetics, a word coined by Norbert Wiener and his colleagues. The virtual world of internet is known as cyberspace and the laws governing this area are known as Cyber laws and all the Citizens of this space come under the ambit of these laws as it carries a kind of universal jurisdiction. Cyber law can also be described as that branch of law that deals with legal issues related to use of inter-networked information technology. In short, cyber law is the law governing computers and the internet.

Cyber law is important because it touches almost all aspects of transactions and activities on and involving the internet, World Wide Web and cyberspace. Every action and reaction in cyberspace has some legal and cyber legal perspectives.

After English (27%), the most requested languages on the World Wide Web are Chinese (23%), Spanish (8%), Japanese (5%), Portuguese and German (4% each), Arabic, French and Russian (3% each), and Korean (2%). By region, 42% of the world's Internet users are based in Asia, 24% in Europe, 14% in North America, 10% in Latin America and the Caribbean taken together, 6% in Africa, 3% in the Middle East and 1% in Australia/Oceania.

HISTORY OF CYBER LAW

The information Technology Act is an outcome of the resolution dated 30th January 1997 of the General Assembly of the United Nations, which adopted the Model Law on Electronic Commerce on International Trade Law.
The Department of Electronics (DOE) in July 1998 drafted the bill.
However, it could only be introduced in the House on December 16, 1999 (after a gap of almost one and a half years) when the new IT Ministry was formed.
It underwent substantial alteration, with the Commerce Ministry making suggestions related to e-commerce and matters pertaining to World Trade Organization (WTO) obligations.
The Ministry of Law and Company Affairs then vetted this joint draft.
After its introduction in the House, the bill was referred to the 42-member Parliamentary Standing Committee following demands from the Members.
The Standing Committee made several suggestions to be incorporated into the bill.

NEED FOR CYBER LAW

In the present world which is more tech-savvy, the words cyber law and cyber crimes have also become more sophisticated. Internet and technology were launched for research purposes and making the lives of humans easy but as the use and number of people on the internet increased, the need for cyber laws in India was felt. As the nature of the internet is anonymous it is easy to commit cybercrimes. Thereby many could misuse this aspect largely.

Internet was initially developed as a research and information sharing tool and was in an unregulated manner. As the time passed by it became more transactional with e-business, e-commerce, e-governance and e-procurement etc. All legal issues related to internet crime are dealt with through cyber laws. As the number of internet users is on the rise, the need for cyber laws and their application has also gathered great momentum.

In today's highly digitalized world, everyone is affected by cyber law. For example:

Almost all transactions in shares are in demit form.
Almost all companies extensively depend upon their computer networks and keep their valuable data in electronic form.
Government forms including income tax returns, company law forms etc. Are now filled in electronic form.
Consumers are increasingly using credit cards for shopping.
Most people are using email, cell phones and SMS messages for communication.
Even in "non-cyber-crime" cases, important evidence is found in computers / cell phones e.g. in cases of divorce, murder, kidnapping, tax evasion, organized crime, terrorist operations, counterfeit currency etc.
Cyber-crime cases such as online banking frauds, online share trading fraud, source code theft, credit card fraud, tax evasion, virus attacks, cyber sabotage, phishing attacks, email hijacking, denial of service, hacking, pornography etc. are becoming common.
Digital signatures and e-contracts are fast replacing conventional methods of transacting business.

INFORMATION TECHNOLOGY ACT, 2000

When the emphasis was on the need for cyber law or cyber security laws, then, it was imperative to implement an IT law in India. Thus, the Information Technology Act, 2000[1], or also known as the Indian Cyber Act or the Internet Law came to force in India. Since the enactment, the Indian Internet Laws were drafted to bring in view all the electronic records and online/electronic activities to legal recognition. The IT Act also addresses the important issues of security, which are critical to the success of electronic transactions. The Internet Laws in India not only validates digital signatures but also provides for how authentication of the documents, which has been accepted and generated by using the digital signatures, can be done.

As IT Act is a cyber-security law introduced to secure cyberspace, the Information Technology Law was amended under;

the Indian Penal Code
the Indian Evidence Act
the Banker’s Book Evidence Act
the Reserve Bank of India

The prime focus of cyber law in India is to prevent:

computer crime
forgery of electronic data & record in e-commerce
electronic transaction

IT Act, 2000 went through amendments [2] in the year 2008. These were made in light of the laws on cybercrime - IT Act, 2000 by way of the IT Act, 2008. They were enforced at the beginning of 2009 to strengthen the cyber security laws. Modifications in the Information Technology Act, 2008 included the change in the definition of some terms such as communication devices. The amendment for the definition of communication device was to include:

the current use
to validate the digital signature
to make the IP address owner accountable
impose liability for data breaches

CYBER CRIMES / CYBER FRAUDS

DEFINATION:

At the Tenth United Nations Congress on the Prevention of Crime and Treatment of Offenders, in a workshop devoted to the issues of crimes related to computer networks, cybercrime was broken into two categories and defined thus:

Cybercrime in a narrow sense (computer crime): Any illegal behavior directed by means of electronic operations that targets the security of computer systems and the data processed by them.
Cybercrime in a broader sense (computer-related crime): Any illegal behavior committed by means of, or in relation to, a computer system or network, including such crimes as illegal possession [and] offering or distributing information by means of a computer system or network.

Who commits cyber-crimes?

Insiders - Disgruntled employees and ex-employees, spouses, lovers
Hackers - Crack into networks with malicious intent
Virus Writers - Pose serious threats to networks and systems worldwide
Foreign Intelligence - Use cyber tools as part of their Services for espionage activities and can pose the biggest threat to the security of another country.
Terrorists - Use to formulate plans, to raise funds, propaganda

TYPES OF CYBER CRIME

Child Pornography OR Child sexually abusive material (CSAM)

Child sexually abusive material (CSAM) refers to a material containing sexual images in any form, of a child who is abused or sexually exploited. Section 67 (B) of the IT Act states that “it is punishable for publishing or transmitting of material depicting children in the sexually explicit act, etc. in electronic form.

Cyber Bullying

A form of harassment or bullying inflicted through the use of electronic or communication devices such as computers, mobile phones, laptops, etc.

Cyber Stalking

Cyber stalking is the use of electronic communication by a person to follow a person, or attempts to contact a person to foster personal interaction repeatedly despite a clear indication of disinterest by such person; or monitors the internet, email or any other form of electronic communication commits the offence of stalking.

Cyber Grooming

Cyber Grooming is when a person builds an online relationship with a young person and tricks or pressures him/ her into doing a sexual act.

Online Job Fraud

Online Job Fraud is an attempt to defraud people who are in need of employment by giving them false hope/ promise of better employment with higher wages.

Online Sextortion

Online Sextortion occurs when someone threatens to distribute private and sensitive material using an electronic medium if he/ she doesn’t provide images of a sexual nature, sexual favours, or money.

Phishing

Phishing is a type of fraud that involves stealing personal information such as Customer ID, IPIN, Credit/Debit Card number, Card expiry date, CVV number, etc. through emails that appear to be from a legitimate source.

Vishing

Vishing is an attempt where fraudsters try to seek personal information like Customer ID, Net Banking password, ATM PIN, OTP, Card expiry date, CVV etc. through a phone call.

Smishing

Smishing is a type of fraud that uses mobile phone text messages to lure victims into calling back on a fraudulent phone number, visiting fraudulent websites or downloading malicious content via phone or web.

Sexting

Sexting is an act of sending sexually explicit digital images, videos, text messages, or emails, usually by cell phone.

SIM Swap Scam

SIM Swap Scam occurs when fraudsters manage to get a new SIM card issued against a registered mobile number fraudulently through the mobile service provider. With the help of this new SIM card, they get One Time Password (OTP) and alerts, required for making financial transactions through the victim’s bank account. Getting a new SIM card against a registered mobile number fraudulently is known as SIM Swap.

Credit Card Fraud or Debit Card Fraud

Credit card (or debit card) fraud involves the unauthorized use of another’s credit or debit card information for the purpose of purchases or withdrawing funds from it.

Impersonation and identity theft

Impersonation and identity theft is an act of fraudulently or dishonestly making use of the electronic signature, password or any other unique identification feature of any other person.

Spamming

Spamming occurs when someone receives an unsolicited commercial message sent via email, SMS, MMS and any other similar electronic messaging media. They may try to persuade the recipient to buy a product or service, or visit a website where he can make purchases, or they may attempt to trick him/ her into divulging bank account or credit card details.

Ransom ware

Ransom ware is a type of computer malware that encrypts the files, storage media on communication devices like desktops, Laptops, Mobile phones etc., holding data/information as a hostage. The victim is asked to pay the demanded ransom to get his device decrypts

Viruses, Worms, and Trojans

A computer virus is a program written to enter your computer and damage/alter your files/data and replicate itself. Worms are malicious programs that make copies of themselves again and again on the local drive, network shares, etc. A Trojan horse is not a virus. It is a destructive program that looks like a genuine application. Unlike viruses, Trojan horses do not replicate themselves but they can be just as destructive. Trojans open a backdoor entry to your computer which gives malicious users/programs access to your system, allowing confidential and personal information to be theft.

Data Breach

A data breach is an incident in which information is accessed without authorization.

Denial of Services attack

A denial of Services (DoS) attack is an attack intended for denying access to computer resources without the permission of the owner or any other person who is in charge of a computer, computer system or computer network. A Distributed Denial of Service attack is an attempt to make an online service unavailable by overwhelming it with traffic from multiple sources.

Website Defacement

Website Defacement is an attack intended to change the visual appearance of a website and/ or make it dysfunctional. The attacker may post indecent, hostile and obscene images, messages, videos, etc.

Cyber-Squatting

Cyber-Squatting is an act of registering, trafficking in or using a domain name with intent to profit from the goodwill of a trademark belonging to someone else.

Pharming

Pharming is a cyber-attack aiming to redirect a website’s traffic to another, bogus website.

Crypto jacking

Crypto jacking is the unauthorized use of computing resources to mine cryptocurrencies.

Online Drug Trafficking

Online Drug Trafficking is a crime of selling, transporting, or illegally importing unlawful controlled substances, such as heroin, cocaine, marijuana, or other illegal drugs using electronic means.

Espionage

Espionage is the act or practice of obtaining data and information without the permission and knowledge of the owner.

How to file a Cybercrime complaint online in India?

A cybercrime complaint can be filed using the National Crime Reporting Portal of India.

Website link is – https://cybercrime.gov.in/

PREVENTIVE MEASURES:

Backup all data, system, and considerations: This enables data stored earlier to assist businesses in recovering from an unplanned event.
Enforce concrete security and keep it up to date: Choose a firewall with features that protect against malicious hackers, malware, and viruses. This enables businesses to identify and respond to threats more quickly.
Never give out personal information to a stranger: They can use the information to commit fraud.
Check security settings to prevent cybercrime: A cyber firewall checks your network settings to see if anyone has logged into your computer.
Using antivirus software: Using antivirus software helps to recognize any threat or malware before it infects the computer system. Never use cracked software as it may impose the serious risk of data loss or malware attack.
When visiting unauthorized websites, keep your information secure: Using phishing websites, information can easily bypass the data.
Use virtual private networks (VPNs): VPNs enable us to hide our IP addresses.
Restriction on access to your most valuable data: Make a folder, if possible, so that no one can see confidential documents.

Conclusion

India was the country with the highest number of cybercrimes in 2020, amounting to 4.5 million. Cybercrime refers to criminal behavior committed by using a computer or other electronic device connected to the internet. This blog provides information about cybercrime, the various risks it poses, and the strategies for prevention from the same.

Cybercrime is the criminal behavior of unauthorized access to computer systems. Cyber security provides a thorough understanding of how cyber attacks can be controlled or recovered. Online courses provide advice on how cyber crimes and cybercrime hazards can be prevented, protected, and recovered.

Family Law

Marriage and divorce. India is a secular country and a wide number of religions are freely practised. The major religions practised include Hinduism, Islam and Christianity. People solemnise marriages in accordance with religious rituals and ceremonies, which are mostly codified by statutory personal laws. Therefore, the matrimonial laws in India, including laws on marriage, divorce and other connected issues, are essentially governed by the personal laws of the parties depending on their religion, which are codified by statute in most cases:

Hindu: Hindu Marriage Act 1955.
Muslim: Muslim marriage is a contract under Muslim law.
Christian: Indian Christian Marriage Act 1872 and the Divorce Act 1869.
Parsi: Parsi Marriage and Divorce Act 1936.

In addition, the Special Marriage Act 1954 applies to all persons of all religions. This is a civil legislation and parties from all religions, caste or community can elect to marry under it. A divorce would then be governed by the Special Marriage Act 1954.

All these laws apply throughout India.

Court system:-

The Family Court Act 1984 provides for the establishment of Family Courts with a view to promote conciliation, and secure speedy redressal of disputes relating to marriage and family affairs, and for matters connected with them. The Family Courts hear matters relating to marriage, marital breakdown and the welfare of children. These courts are trial courts and are presided over by Additional District Judges who undertake trials and review evidence. The Family Courts follow the Civil Procedure Code. Family proceedings are generally public but can be conducted in private at the request of the parties or if circumstances require

Jurisdiction:-

A divorce petition can be presented to the district court within the local limits of whose original civil jurisdiction the:

Marriage was solemnised.
Respondent, at the time of the presentation of the petition, resides.
Parties to the marriage last resided together.
Wife resides on the date of presentation of the petition (if she is the petitioner).
Petitioner resides at the time of the presentation of the petition, in a case where the respondent, at that time, either:
- resides outside the territories to which the acts extend; or
- Has not been heard of as being alive for a period of seven years or more by those persons who would naturally have heard of him/her if he/she were alive.

The applicability of the Special Marriage Act is not restricted to Indians and foreign nationals can marry under the Act. The parties need not be domiciled in India to solemnise their marriage under the Special Marriage Act.

Under the Indian Divorce Act 1869, a petition in a matrimonial cause can be presented in the court of the district judge within the local limits of whose ordinary jurisdiction either the:

Husband and wife reside.
Husband and wife last resided together.

Where a number of courts have jurisdiction, a party can choose one of them. Where a court's jurisdiction is questioned, preference is generally given to factors that support its jurisdiction.

Hindu law and marriage:-

Hindus are governed by a law called the Hindu Marriage Act, 1995, it is a law enacted by the Indian Parliament in 1955 as part of the Hindu Code Bills.

People who can get married under the Hindu Marriage Act

Hindu of any caste or sect or form or development.
Buddhist.
Jains.
Sikhs
Anyone converted to any of the above mentioned religions.

Registration of Marriage

Section 8 of Hindu Marriage Act states that the state government may make rules for the registration of Hindu marriage and the parties to any of such marriages may have particulars relating to their marriages entered in such a manner and subject to such conditions as may be prescribed in the Hindu Marriage Register.
This registration is for the purpose of facilitating the proof of Hindu marriage. The Hindu Marriage Register should be open for inspection at all reasonable times and should be admissible as evidence of the statements contained therein.
In 2006 the Supreme Court directed the state to make registration of all marriages compulsory. (Seema v. Ashwin, SC 2006)

Sec 13 B: Divorce by Mutual Consent

It is the fastest way or procedure of getting divorce for filing of a divorce under mutual consent, it is necessary for the husband and wife to have lived separately for at least a year.

Divorce by mutual consent is fastest because parties can get divorce in six months only which can be further shortened if the parties are living separately since long time span

Guardianship under Hindu law :-

Guardianship of person of minors.
Natural Guardian.
Mother is a natural guardian of a Child under the Hindu Minority and Guardianship Act 1956.
Right of Guardian of person (minor).
Right to custody- Mother has a right to the custody of her minor child, especially when the child is below five years of age.
Testamentary Guardian.
Guardian Appointed by the Court.
Powers of Certificated Guardian.
Guardianship by affinity.
De-Facto Guardian.

Adoption under Hindu Law

The object of adoption is:

To secure one’s performance of one’s funeral rites and
To preserve the continuance of one’s lineage.

Who can take in Adoption?

Any Hindu man or women who are of 18 years of age and of sound mind can adopt a child.
If he or she is married, the consent of the spouse is necessary before Adoption.
In case the other spouse is insane or has renounced the world or is not a Hindu then he/she can adopt even without other’s consent.
A widow, divorces or unmarried or married Hindu women can also adopt a child.
A Person having a child cannot adopt the child of the same sex.
The adoption is completed by an actual giving and taking and the ceremony called data human (oblation to the fire) has been performed. However, this may not be essential in all cases as to the validity of adoption.

Who can give a Child in Adoption:-

Both the father and mother of the child can give in adoption only with the consent of the other.
Consent of the other Parent for giving the Child in adoption is not required if he or she is insane or has renounced the world or has ceased to be a Hindu.
If neither parent is alive or capable to give child in adoption the guardians can do so with the prior permission of the court.
The Central Adoption Resource Agency (CARA) is an appropriate Agency from where children can be adopted.

Who can be adopted:-

Both boys and girls can be adopted.
The child should be a Hindu.
The child should not have been already adopted.
He/she should not exceed 15 years of age.
Child should not be married
If the child of opposite sex is adopted the age gap between the child and the adopting parents must be of at least 21 years.
The adopted child will have the same property rights in the adopted family as he has in the born family.

Procedure for Adoption of a Child:-

Indian citizens who are Hindus, Jains, Sikhs, or Buddhists are allowed to formally adopt a child. The adoption is under the Hindu Adoption and Maintenance Act of 1956.
Under the act, a single parent or married couples are not permitted to adopt more than one child of the same sex.
Foreign citizens, NRIs, and those Indian nationals who are Muslims, Parses, Christians or Jews are subject to the Guardian and Wards Act of 1890.
Under this Act, the adoptive parent is only the guardian of the child until she reaches 18 years of age.
The Juvenile Justice (Protection and Care of Children) Act 2000 and also of 2015 now permits adoption of an abandoned, surrendered or orphaned child who is declared free for adoption by the child welfare committee to be adopted by person of any religion and of any sex irrespective of whether he or she is having his or her own children or not. Any number of children can be adopted under this Act by the same person.
The authorities/agencies involved in In-country adoption- Competent Court, Central Adoption Resource Authority (CARA), State Adoption Resource Agency (SARA), Recognised Indian placement Agency (RIPA), Specialised Adoption (SAA).
There are seven stages involved for the purpose of adoption- Stage I : Registration, Stage II : Pre-adoption Counselling and Preparation of the PAPs, Stage III : Home Study and Other Requirements, Stage IV : Referral and Acceptance, Stage V : Pre-adoption Foster Care, Stage VI : Legal Procedure, Stage VII : Follow up visits and Post-adoption Services.

Maintenance of wife:-

Maintenance varies according to the position and status of the persons concerned.

The wife can get as much maintenance as required for her to live according to her status in life. The limit depends upon the husband’s earning capacity.

The amount is given on a monthly or lump sum basis.
The wife will not be entitled to get maintenance once she remarries, or does not remain chaste.
If the husband refused to pay the maintenance amount settled by the court. He will be imprisoned.
Under the Hindu Marriage Act, 1955
Section 24: Maintenance Pendenteliteand expenses of the proceedings.
Section 25: Permanent alimony and maintenance.
Under the Hindu Adoption and Maintenance Act, 1956
Section 3(b)- “Maintenance” includes-
- In all cases, provision for food, clothing, residence, education and medical attendance and treatment;
- (ii) In the case of an unmarried daughter, also the reasonable expenses of and incidents to marriage

Section 18 - Maintenance of Wife

A Hindu wife is entitled to be maintained by her husband during her life time. She has the right also to live separately from the husband and claim maintenance from the husband if he is guilty of desertion or cruelty or has any other wife living or resides with a concubine or converted to another religion.

How to get maintenance:-

An application for maintenance must be given in a Civil Court. Besides this or along with it, an application can also be made to the criminal court Section 125 of the Criminal procedure code.
If any women are unable to support her, she can file an application for maintenance in the Criminal Court Section 125 of the Criminal Procedure code. The proceeding in the Criminal Courts is faster than civil proceedings

Hindu Women's Right to Property

The literal meaning assigned to stridhan is woman’s property.
According to Manu seven kinds of gifts may be considered as stridhan:
Gifts before the nuptial fire (adhyagni),
Gifts during bridal procession to her husband’s house (adhyavahanika),
Gift of love from father-in-law and mother-in-law (pritidatta) and gifts made at the time of obeisance at the feet of elders (padavandanika),
Gifts made by her father, mother and brother,
The Hindu Succession Act 1956 provides equal right of Mother, widow, Son and Daughter to share a person’s property on his death. Both Son and Daughter inherit the property of Mother on her death.
The Hindu Succession Act, 1956 was gender discriminatory. To remove the said gender discriminatory provisions The Hindu Succession (Amendment) Act, 2005 was passed and the said Act came into force on 9th September, 2005 and it gives the following rights to daughters.
In a joint Hindu family the daughter of a coparcener shall, (a) By birth become coparcener in her own right in the same manner as the son; (b) Have the same rights in the coparcener property as she would have had if she had been a son; (c) Be subject to the same liabilities in respect of the said coparcenaries property as that of a son, and any reference to a Hindu coparcener shall be deemed to include a reference to a daughter of a coparcener:
Thus, a daughter has a similar right like son to claim partition of coparcener property. She would have to go to civil court of competent jurisdiction seeking partition.

Muslim Law on Marriage

There are two schools of Islamic law: Sunni Law and Shia Law. Majority of Sunni Muslims in India are governed by the Hanafi School and Shias by the IthnaAsharia School.
Muslim marriages are governed by the Islamic law i.e. Shariah
The essential of a valid muslim marriage are as follows:
- There should be a proposal made by or on behalf of one of the parties to the marriage. There should be an acceptance of the proposal by or on behalf of the other party. This is called Nikah.
- The written document of Marriage contract is NikahNama, which is not necessary
- A Muslim marriage requires proposal ‘Ijab’ from one party and acceptance/ ‘Qubul’ from the other side. This must be done in one sitting.
- The proposal and acceptance must both be expressed at one meeting orally.
- The parties must be competent i.e. they must be sane and adult, if the parties or one of them is either a minor or insane, the consent has to be given by the guardian. The consent will be deemed free when it is made at will and given voluntarily and not under any coercion or fraud. The consent will be deemed free when it is made at will and given voluntarily and not under any coercion or fraud. For the purpose of marriage a Child becomes major on attaining Puberty. If parties to a Muslim Marriage are major, their own consent to marry is essential.
There must be two witnesses, who must be sane and adult (Not needed in Shia Law)
Neither writing nor any religious ceremony is needed.
There can be stipulations in the Nikah.

Obligations of the Husband and Wife

Mahr/Mehr/ Dower is a sum of money which the Muslim male proposed to pay to the female in consideration of marriage.
Portion of the Mahr can be paid at the time of marriage.
Witnesses- two Muslim male witnesses are required under Sunni Law.

Obligations of the Husband and Wife

Mahr/Mehr/ Dower are a sum of money which the Muslim male proposed to pay to the female in consideration of marriage.
Portion of the Maher can be paid at the time of marriage.
Witnesses- two Muslim male witnesses are required under Sunni Law.

Muslim Law on Divorce

Type of Divorce under Muslim Marriage

Extra Judicial Divorce by husband:
- Talia: It is of two types:
- Talaq-ul-Sunnat: Talak-ul-Sunnat is further divided into:
- Talaq-e-Ahsan and 2) Talaq-e-Hasan.
- Talaq-ul-biddat: Talak-ul-biddat is further divided into: 1) Triple Divorce, and
- One irrevocable Talaq
- Ila
- Zihar and Lian
Extra Judicial Divorce by Wife:
- Talaq-i- Tafweez
- Khula
- A Muslim women can divorce her husband under the Dissolution of Muslim Marriage Act, 1939.
Extra Judicial Divorce by Mutual Consent: called Mubarat.

Adoption of Muslim law:-

Islam does not recognize adoption.
Acknowledgement of paternity under Muslim Law is the nearest approach to adoption.
However a Muslim can take the Guardianship of a Child by obtaining permission from the court under the Guardians and Wards Act, 1890
Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children as are orphaned, abandoned, or surrendered through institutional and non institutional methods can be done by anyone. The Juvenile Justice (Care and Protection of Children) Act 2015 also permits every person to adopt a child as per the provisions of the Act.

Maintenance:--

As per the Muslim Personal Law (Shariat) a Divorced Woman has a right to get the following things from her Husband:

A sum equal to dower (Mahr) settled at the time of marriage.
All the gifts given to her by anyone at the time of marriage.
Maintenance during the period of Iddat.
Maintenance for herself till their child attains the age of two years.
Claim of Maintenance during Subsistance of Marriage: A Muslim wife is entitled to be maintained by her husband during the subsistence of marriage.
Maintenance under Cr.P.C
- Section 125 Order for maintenance of Wives, Children and Parents.
- Section 126- Procedure
- Section 127- Alteration in allowance
- Section 128- Enforcement of order of maintenance

Maintenance under Section 125 of Code of Criminal Procedure

A Muslim woman can get maintenance from her husband even after the period of Iddat by filing a petition under section 125 of Criminal Procedure Code.
But this can be done only if the Husband and the wife file an affidavit or a declaration in the Court, opting to be governed by this law.
This declaration can be included in the Nikahnama at the time of marriage. If this declaration is filed in the court, then the magistrate will order that the husband should pay maintenance to the wife every month.

The custody of children is decided by the courts:-

Under some schools of Muslim law the mother is entitled to the custody of the children until they are 7 years old.
In all cases, the court sees the welfare of the child i.e, who can look after the maternal and paternal needs of the child better

Right to property:-

There are two broad schools of Muslim in India as follows: i. Sunni ii. Shia. The main point of differences between the two is that Sunni rules only count those relatives as heirs whose relation to the deceased person is through a male- son’s son and father’s mother. Shias include even those persons as heirs who are related to the deceased through a female e.g. daughter’s son, daughter’s daughter. A woman has certain rights to property in inheritance, maintenance and Mahr. She is entitled to inherit property as a daughter, Widow, Grandmother, Mother and Son’s daughter.

Christian Law on Marriage and Divorce:-

All Christians are governed by The Christian Marriage Act, 1872 and the Divorce Act 1869 as amended in 2001 by the Indian Divorce (amendment) Act 2001.

All persons practicing the Christian religion such as Roman Catholic or Protestants can get married under this law.
An Indian Christian is an Indian converted to Christianity and includes his or her descendants
Men and Women of different religion cannot get married under this law.
Under Christian law marriage may be solemnized appointed by the church to solemnize the marriage according to the customs of Christians or by a marriage registrar.
A marriage registrar is appointed by the State Government
A notice in writing is given to the Registrar by one of the persons getting married.
The marriage is to be solemnized in the presence of two witnesses and one of the parties has to take an oath that there is no lawful objection to the marriage.

Procedure for filing Divorce Petition

The Indian Divorce Act deals with divorce among Christians. The reasons are almost similar to the ones under the Hindu Marriage Act. Roman Catholics do not come under the purview of any divorce proceedings since the Roman Catholic Church has not recognized divorce. Maintenance: During the period when the divorce case is in the court, the husband has to give one fifth of his salary for the maintenance of his wife. Later, maintenance can be given either yearly or once for all as total settlement.Custody: Custody of the child is decided by the court after going into the details of individual case. After filing a petition of divorce under the Christian Divorce Act, the petitioner can seek the following remedies-

The Courts have powers to:

Order adulterer to pay damages and costs
Order alimony, pendante-lite (pending decision of the court) or permanent
Order settlement of property
Make order as to custody of children in a suit or separation

Once the separation is awarded, from the date of the sentence, the separated wife would be deemed spinster, with respect to property, which she may acquire or which may devolve on her. This status would apply for the purposes of contract, wrongs and injuries and suing and being sued in civil proceedings.

Guardianship:-

The Guardians and Wards Act, 1890 which resides in the secular realm also, may be resorted to.
Guardians not to be appointed by the court in certain cases
Duties of Guardian of the person:
- Custody of the wards and
- Support of health and
- Support of education

Adoption:-

Christians have no personal law of adoption
An adoption can take place from an orphanage by obtaining permission from the court under the Guardians and Wards Act, 1890
Besides, such a child does not have legal right of inheritance. The general law relating to Guardian and Ward is contained in the Guardians and Wards Act, 1890. It clearly lays down that father’s right is primary and no other person can be appointed unless the father is found unfit.
The court must take into consideration the welfare of the child while appointing a guardian under the act.
Under section 41 of Juvenile Justice (Care and Protection of Children) Act, 2000 adoption of such children as are orphaned, abandoned or surrendered through institutional and non-institutional methods can be done by anyone.
Now the new law Juvenile Justice (Care and protection of Children) Act 2015 has a separate chapter dealing with adoption. Any person has the Right to adopt as per this Act.

Maintenance:-

Under section 37 of the Indian Divorced Act 1869, the wife can seek permanent alimony after dissolution of Marriage or decree of Judicial Separation.
Under section 125 of CrPC a Christian woman can also claim maintenance from her husband as explained earlier too.

Right to property:-

As far as the Christian women are concerned the community and the church with its strong patriarchal tradition compels women to remain subjugate.
As per the repealed Travan core Christian Succession act 1916, women were given Stridhan and the practice is still being continued till today.
However women started claiming a share of the father’s property under section 37 of The Indian Succession Act 1925.
A Christian widow is entitled to 1/3rd of her husband’s property.
All children whether son or daughter gets the equal share in the remaining property.
Even a married woman has equal right in the property.
In case a daughter or a son is dead his/her children would get their parents share in the property.
The child in the womb also gets the equal share in the property.
Mother and Father are not entitled to inherit the property of a Son or a Daughter if the Son or Daughter is survived by his/ her own children or grandchildren.

The parsi marriage and divorce act:-

Parsi wedding has to be solemnized as per the “Ashirvad” tradition in the presence of a Parsi Priest or Prsi Dastur or Mobed under the Parsi Marriage and Divorce Act, 1936.
2 Witnesses should be present at the time of the marriage.
The Parsi Priest/Dastur / Mobed who conducts the wedding should issue a wedding certificate signed by the priest, the couple and two witnesses.
All Parsi/Irani/Zoroastrian weddings have to be registered with the marriage registrar.
Only Parsi men over the age of 21 and Parsi women over the age of 18 can marry.
Marriage is not allowed between blood relatives
Bigamy and Polygamy are not allowed
The Act also states dos and don’ts for the Parsi Priest/dastur/mobed, couple and the witnesses.

Right to property:-

Parsi’s are governed by the Indian Succession Act, 1925.
The property rights of the Parsis are quite gender just.
Basically, a Parsi widow and all her children get equal shares in property of the intestate while each parent, both father and mother get half of the share of each child.

The special marriage act:-

Sometimes people following same or different religions don’t want to get married under their personal laws
In such cases they can get married under The special Marriage Act, 1954
Under this law marriage is performed by the special officer appointed under the Act.
Any two persons who wants to get married under this law have to fulfill the following conditions:
- Neither the man nor the woman must be already married.
- They should be mentally sound so that they can give a valid consent.
- The girl should be at least of 18 years of age.
- The boy should be at least of 21 years of age.
- They should not be closely related to each other (in the prohibited degree).

Steps for the Solemnization of Marriage under the Special Marriage Act, 1954

A notice informing about the intention to get married in a prescribed form to be given to the marriage officer generally located in the District Court.
The notice must be signed by both the parties.
The marriage can be registered only after the expiry of 30 days from the date of notice. (so that any objection can be raised about the illegality of the marriage).
The applicant should get their marriage solemnized within two months of the application otherwise they will have to proceed again as a fresh.
Even if marriage is performed under custom or religion it can be registered under The Special marriages Act, 1954.
Once registered it will be considered to be performed according to The Special Marriages Act, 1954.

Procedure:-

The petition for divorce may be presented only after one year from the date of entering the certificate of the marriage in the Marriage Certificate Book. However, the relaxation may be provided in cases where exceptional depravity on the part of the respondent. The petition seeking divorce could be presented to a District Court, within whose jurisdiction, either,

The marriage was solemnized,
The respondent resides, or in case the wife is petitioner, where she is residing,
The parties to the marriage last resided together, or
The petitioner resides, in cases where the respondent is residing outside the territories to which the Act extends.

Under section. 28 of the Act, which primarily deals with the provisions relating to obtaining a divorce by mutual consent in respect of marriage solemnized and/or registered under the Act, a petition for divorce by mutual consent may be presented to the district court. A few key points to be considered while seeking a divorce by mutual consent are as follows:

A petition for divorce must be presented to the district Court by both the parties together.
The petition must be on the grounds,
- That they have been living separately for a period of one year or more,
- That they have not been able to live together, and
- That they have mutually agreed that the marriage should be dissolved.
Between 6 months after, and within 18 months of, the date of presentation of the petition seeking divorce by mutual consent, both parties must make a motion together seeking grant of a decree of divorce.
Before passing a decree of divorce, the District Court considers the following, among other aspects:
- That the petition has not been withdrawn yet,.
- That the marriage has not been solemnized under the Act,
- That the averments in the petition are true,
- That consent for divorce has not been obtained by force, fraud or undue influence
- That there has not been any unnecessary or improper delay in instituting the proceedings.

Thus the provisions and the procedure for obtaining divorce by mutual consent under the Special Marriage act are fairly simple and straight forward.

Parties desirous of obtaining a divorce by mutual consent must however keep in mind that the Act also contains provisions dealing with grant of Alimony and maintenance, both permanent and during the pendency of the proceedings.
In the cases of divorce by mutual consent, the parties may agree upon the terms relating to payment of alimony or maintenance and the same may be incorporated in the pleadings before the court.
However care has to be taken that suitable provisions are incorporated in the pleadings to avoid future misunderstandings or litigation. It is therefore advisable that, while discussing the various issues connected with seeking a divorce by mutual consent with their advocates, the parties must specifically discuss their arrangement and agreement on alimony and maintenance, and take suitable steps to ensure that their interest is safeguarded.

Insurance Claim Settlement

Life

The main purpose of taking an insurance policy is that it should come in use in the times of crises. We will look at the different types of life insurance claim and how it settles.

The function of the insurance company is to ensure easy and timely settlement of a valid claim in the return of premium paid by the policy holder.

Before intimating insurance company about the claim, nominee/claimant should check some basic facts.

If the insurance policy is active and all the premiums have been paid?
Does the particular situation for which the claim is being made is covered in the policy?
Exclusions of the policy

Death claim settlement process

Step One: Intimation to the insurance company about the Claim

The nominee should inform the insurance company as soon as possible to enable the insurance company to start with the claim process. The details required for intimation are policy number, name of the insured, date of death, cause of death, place of death, name of the nominee etc. The claim intimation form can be obtained from the nearest insurance company branch or even by downloading it from the insurance company website. Alternatively, many insurance companies also have online forms these days on their website for claim intimation.

Step Two: Documents required

The nominee will be asked to furnish the following documents:

Death certificate

Age of the life insured (if not already given)

Original Policy document

Any other document as per requirement of the particular insurer or case related For early death claims i.e the claim that has arisen within three years of the policy being in force the company will do extra investigation to ensure it is a genuine claim. They might do the following:

Check with the hospital if the deceased was admitted to hospital. In case of an air crash confirmation from the airline authorities check if the policy holder was a passenger on the plane.

In case of death from medical causes, the insurance company will ask the hospital to provide doctor’s certificate, treatment records etc. If the policy holder dies due to murder, suicide, accident then police FIR report, panchanama, post mortem report etc. shall be required.

Step Three: Submission of required Documents for Claim Processing

For quicker claim processing, it is essential that the nominee submits complete documentation as early as possible and any other documents that the company needs to pass the claim.

Step Four: Settlement of Claim

As per the regulation 8 of the IRDAI (Policy holder's Interest) Regulations, 2002, the insurer is obligated to settle a claim within 30 days of receipt of all necessary documents including extra documents sought by the insurer. If the claim requires further investigation, the insurer needs to complete its procedures within 6 months from receiving the written intimation of claim.

Maturity & Survival Claims

The payment made by the insurance company on completion of term of policy or maturity date is called maturity payment. The amount payable consists of sum assured plus any bonus/incentives.

The insurance company informs the policy holder in advance by sending bank discharge form for filling details in it. The form needs to be returned back to the insurance company with original policy document, ID proof, Cancelled Cheque and copy of pass book.

Rider Claims:

Different riders can be attached to the base life insurance policy for enhanced protection. The riders can be accidental rider, critical illness rider, waiver of premium rider etc. For different riders, different claim proceedings are required. Some riders may be valid with the death claim like accidental death rider or some riders need to processed standalone like waiver of premium rider in case of disability.

For Critical Illness Rider- necessary medical documents such as first diagnosis report, Doctor’s report, etc are required. For Accidental disability rider - copy of FIR, Certificate of disability by the treating doctor, doctor’s report etc are required.

Health

People usually tend to ignore the claim settlement process while purchasing a health insurance policy. They fail to understand that claim settlement is one of the most important aspects of a health insurance policy. The process of health insurance claim settlement should be by far easy and quick because you do not want to worry about your insurance claim in case of any medical emergency.

A health insurance claim is a request raised by a policyholder to the insurance company in order to obtain the benefits covered under the policy when any medical emergency occurs. There are two types of claim settlement processes that an insurer can follow:

Cashless Claim Settlement Process:

Under the cashless claim settlement process, an insurance company settles the amount directly with the hospital. It is a completely hassle-free process for a policyholder. The significant advantage to the policyholder is that they do not have to pay any amount from their pocket, except a deductible, if any. In addition, as the claim is settled directly, a policyholder does not have to keep track of the hospital bills and reimbursement. A policyholder can visit any of the network hospitals of the insurance company and provide the details of his/her health insurance policy. Most hospitals have insurance claim settlement departments/desks where a policyholder can show the physical copy of the policy or an e-card allotted by an insurance company. If you want to opt for a cashless claim settlement process, you will have to furnish the proof of your policy.

The hospital verifies the policy details and sends the pre-authorisation form to the insurer. The insurance company verifies the details of the policy and processes the claim settlement as per the terms and conditions of the policy.

The claim gets settled directly between the hospital and the insurance company. Situations when policyholder has to go for claim:-

I) Planned Hospitalisation:

There are situations when the policyholder is aware of the surgery/medical treatment they have to undergo. Such planned treatments require prior preparation. A policyholder requires to inform the insurer before about the treatment and the network hospital by,

Calling on their toll-free number or customer service number
Sending an email to the customer service
Sending a post on the registered address of the insurance company

Need to submit a cashless settlement form, duly filled by the hospital, to the insurer. This form can be sent by email, fax, or post.

After that, the insurance company coordinates with the hospital and informs to the claimant once the claim is accepted. A policyholder has to show the policy or e-card at the time of admission to the hospital.

II) Emergency Hospitalisation:

A medical emergency can arrive suddenly in life without any prior intimation. It generally happens in case of an accident or for illnesses that required immediate treatment.

In such unavoidable circumstances, a policyholder or their family members should immediately inform the insurance company by calling on the toll-free number. It is possible that the family members' fail to inform the insurer beforehand, but the insurer needs to be informed immediately after admitting the patient to the hospital. In addition, family members need to ensure a cashless claim settlement form is duly filled by the hospital and sent to the insurer within 24 hours of hospitalisation.

Reimbursement Claim Settlement Process:

Under Reimbursement Claim Settlement Process, a policyholder has to pay all the hospital bills and any other medical expenses upfront. This process is not as smooth, easy and hassle-free as the cashless claim settlement process. Policyholders are supposed to claim for reimbursement later by showing the original hospital bills. Although the process can be tricky for the insured, they can choose their preferred hospital, which might not be a part of the insurer's network hospitals.

The reimbursement claim settlement process starts after the policyholder is discharged from the hospital and all bills are paid by them and then,

The policyholder has to file a claim with the insurance company by submitting the reimbursement form along with original hospital bills and other necessary documents, such as medical reports, cash memos for medicines, discharge card, discharge summary, FIR in case of an accident, etc.

Insurer can hold the claim until claimant submit all required documents, for claim settlement claimant have to submit all required documents as directed by the insurer.

An insurer may do the field verification through a third-party administrator if required.

The insurance company processes the claim, once the claim is found to be genuine.

If the claim is rejected at any stage, the policyholder is informed about it by a call or an email. The policyholder receives the claim amount in his/her registered bank account if the claim settlement is successful

These are the types of health insurance claim settlement processes. Most insurance companies have their in-house claim settlement departments. Whereas others settle the claims with third-party

Third-Party Administrator (TPA):

Many insurance companies have tie-ups with Third-Party Administrators (TPAs) authorised by the Insurance Regulatory and Development Authority of India (IRDAI).

A TPA works as an intermediary who expedites the health insurance claim settlement process.

Although the Third-Party Administrator's process health insurance claims by handling all the documents, they do not hold the right to accept or reject the claims.

The sole right of acceptance or rejection of the claims remains with the insurer.

Once the claim is processed, a policyholder is required to contact the Third-Party Administrator for any updates or document submission.

First, a policyholder has to provide the details to the TPA, who will then send them to the insurance company -- a final decision-maker. The process becomes time-consuming as an intermediary handles the settlement process.

There are more than 25 licensed Third-Party Administrators in India that mainly work for public sector health insurance companies.

The TPAs usually have a larger network of hospitals, which are helpful for cashless claim settlement processes.

In-house claim settlement department:

Many insurance Companies nowadays set up their own claim settlement departments, called in-house claim settlement department.

As there is no intermediary involved and the decision-maker handles the process, the claim settlement process is seamless and quick.

A policyholder has one-point contact that makes the claim settlement process convenient to the policyholder.

The Health Insurance Claim Settlement Process is a vital aspect of a health insurance policy. A policyholder needs to check and understand the terms of claim settlement and how the process works, before buying the policy.

Whenever possible, it is advisable to opt for a cashless claim settlement process as you do not have to pay any amount upfront by yourself and wait for the claim to get accepted.

Motor

An insurance claim is an official request that a policyholder makes to the insurance company for the compensation of the damage incurred by them. The compensation is provided as per the coverage guaranteed to the policyholder by the insurance company under the insurance agreement.

An insurance claim can be made in 2 ways - in a cashless manner and in a reimbursement manner When a policyholder gets their car repaired at a partner garage of the insurance company. Insurance company pays directly for the incurred repair expenses to the garage- Cashless manner If the policyholder gets their car repaired at a garage which is not a part of the insurance company's request then the policyholder needs to make the payment of the repair expenses themselves to the garage and the same is later reimbursed to the policyholder by the insurance provide. – Reimburse manner

Car Insurance Claim Procedure

Despite being cautious mishaps can happen at any point in time on the road. It can be an accident, theft, fire, or any other unfortunate event. To claim all the benefits (depending upon the nature and coverage of your car insurance policy) of an insurance company, you need to contact your insurance agent or company immediately. Insurance Claim Process - Required Documents The policyholder requires to submit certain documents in order to validate and accept the claim car insurance. Along with insurance claim documents need to submit.

Copy of the insurance policy
First Information Report (FIR) filed with the police station
Copy of the driver's license
Copy of the registration certificate of the car

Additional documents in case of reimbursement claim

A brief estimate of the repairs
Medical report in case of physical injuries
Original records of other expenses

Steps for Making Car Insurance Claim after an Accident

Step 1: Inform the Insurance Company immediately –
Call your car insurance company immediately and intimate them about the incident in the first place. As the timeline is restricted, within the seven working days, you need to inform the insurer regarding the accident, failing which your claim settlement period is considered lapsed. To raise a claim need to submit documents
i) Copies of your driving license,
ii) Car registration certificate RC,
iii) FIR along with the first two pages of insurance policy.

Step 2: Lodge FIR in the Nearest Police Station -
Inform the police and file an FIR as this is a mandatory step in the car claim settlement process in events like theft, fire, or road accident, including the third party damage.

The FIR can be avoided in situations where there are dents and scratches on the vehicle. It is a must when there is any physical injury or third party accidents. The police will visit the spot to identify the faults and make a clear distinction of whether the accident happened due to mechanical failure or not. It will also record all the essential details of the driver, the vehicle, passengers, and witnesses or other aspects in the FIR.

Need to file a case to the Motor Accident Claims Tribunal having jurisdiction area where the accident happened between you and the third party. It is only required when a third party is involved in an accident.

Step 3: Capture Photographs as Valid Proof –
In case of reimbursement claim capturing the scene of the events with a photograph can be helpful. Pictures of the accident which involve your car damages, bodily injuries etc., and serve as valid proof during claim settlement. Besides, you can note down the name, contact number of your witnesses, third party (if any involved) so that it can help you in the entire procedure.

Step 4: Submit All the Documents to the Insurer
The next step after the FIR is to proceed towards claim settlement. It can only be initiated once you submit all the crucial document to the insurance company. Make sure to submit all the copies of documents like driving licence, car registration certificate, FIR, and other required information.

Step 5: Ask the Insurance Company to Send a Surveyor
In case of a cashless claim settlement, a representative will be sent by the insurance folks who will try to asses all the significant damage that has been incurred to accidental car.

Step 6: Car Repairs - Get accidental car repaired and initiate the claim process and in case of reimburse process after it finds your claim to be genuine, your car insurance company will reimburse the amount.

Claim settlement in case of mis-sold policies (Life, Health and Motor),

In case of missold policy, policy holder may contact to the Customer Care, Grievance Redressal or Escalation Authorities of the insurance companies and demand for the refund of the paid policy premium amount or claim amount which caused due to the mis-selling of the policy.

If the complaint is not settled by Grievance Redressal Team or there decision is not acceptable, he/she may approach to the Insurance Ombudsman within stipulated time limit.

If the decision of the Insurance Ombudsman is also not acceptable he/she may approach to the Consumer Dispute Redressal Commission (For reference please check Consumer Protection Act, 2019).

LAWS GOVERNING REAL ESTATE

Real Estate sector is one of the most booming sectors in India especially in metro cities like Mumbai, Bangalore, and many others where the real estate property prices keep on escalating year by year. The demand is a lot higher than supply because of scarcity of the areas. As there is no parcel of lands left, the existing buildings are going under re-development where several obligations are implied and the compliance with respect to all the rules and regulations have been in high demand by the promoter and even by the consumer.

Legal Issues with Real Estate –

There was no proper authority governing the rules and regulations of the real estate. The two major acts which have been in use are as follows:

Maharashtra Ownership Flats Act, 1963 (MOFA)
Consumer Protection Act, 2019

Maharashtra Ownership Flats Act, 1963:
This act major focused on the adopted on the flat system based in metro cities. MOFA brought about some changes in the regulatory practices of the real estate sector. There were various governing clauses in this act which brought about some discipline with respect to the promoters. As the name suggests, MOFA is valid only for Maharashtra but similar acts exist for various states. The motive of enactment of the act was to regulate promotion, construction, sale, management, and transfer process of the flats sold on an ownership basis. Various provisions such as allowed consideration for booking the flat and the need of an agreement was highlighted.

Consumer Protection, 2019:
The consumer act governs various commodities, services purchased by the consumer and the purchase of a real estate property also makes the purchaser as a consumer. In most of the legal issues with regards to the real estate, the consumer is entitled to get the respective protection as even he is entitled to receive the safety of a consumer. Whenever there are any misrepresentations, or contradictions in services promised by the promoter and what actually is provided to the consumer, it can qualify as unfair trade practices and the promoter can be held liable under certain conditions.

Need of the Governing Body –
There were voids in the governing existing acts and there was no specific regulatory body in the real estate market. The funds taken from the customers were rather getting misused and the agreements made with the home buyers were also not regularized properly and there were multiple terms and conditions put by the builder which were not ethical and rather one-sided. The mis-appropriation of funds was also hampering growth in the real estate sector and the home buyers had no choice apart from agreeing to the terms and conditions by the promoter as the home buyer never had any control over the situation.

Real Estate (Regulation and Development) Act, 2016 –
The RERA authority was established in the year 2016 to regulate the real estate sector and tribunals were set all over the country at different levels which could regulate the working of the respective sector. The act became effective on the date, 1st May 2016. The act brought about various changes not only in the law but also in the real estate industry.

Some points under Real Estate Regulation and Development (RERA) -

Secure Transactions: After the enactment of RERA, the promoter has to maintain a separate bank account for the respective project so that there is no mis-appropriation of funds and the projects get completed in the stipulated time.

Transparency: The builder has to submit the details of the project and no changes are supposed to made in the project without prior approval from the respective authorities.

Fairness: RERA Carpet area was introduced through this act which governed the builders for the sale of properties instead of the sale through super built up area. It regulated in a way such that the sale of properties would be fair through only single medium and there will be no confusion towards the innocent home buyer who is not in daily process of these transactions.

Defect Liability Period: There could be construction defects in the project which could arise after purchase of the property which could be anything from water leakages to structural defects such as improper design or cracks in the structure. RERA specifically prescribes that it is a liability of the builder to fix such issues upto 5 years of ownership of the home buyer.

Authorization: The promoter cannot advertise the project unless it is registered before the authority which gives the belief to the home buyer that the project is officially approved and also provides security to the home buyer. Post authorization, the project also gets a RERA Registration number based on which one can obtain the entire information of the respective project.

Impact of RERA –

Introduction of RERA has standardized the quality of projects to get approved and are legally more complaint to avoid litigation
There will be a very less margin for dishonest builders to enter into the sector and dupe the innocent home buyers
Financial discipline has been established due to the regulatory practice of maintaining a different bank account for transactions for the respective project
Real Estate Agents also have to register under RERA for the eligible of sale of properties which eliminates the chances of fraudulent practices in the sale of properties which cost in crores
It also reduced the delay in the deadlines of the possession of the flats to the home buyers

Misconception of RERA –

It is a misunderstanding that only the home buyer can file a complaint against the promoter through RERA. But the truth is even the promoter can file a complaint against the home buyer in cases where the promoter has completed the project and there has been a delay in payment by the home buyer.

Penalties under RERA –

The promoter will have to pay a 10% of the total cost of the project if he is not registered under RERA as a penalty
Specific violations of the act can lead upto imprisonment upto 3 years
If there is a discrepancy in the title deed, the home buyer can immediately ask for compensation from the promoter

Projects which can get approved under RERA –

Plotted development including residential and commercial projects
The projects which measure more than 500 sq m or 8 units can only be approved under RERA. Anything below the aforementioned specification is not regulated by RERA
RERA does not prescribe any sections with respect to the projects which are going under renovation or redevelopment which does not involve addition of home owners

Intention of the Government in introducing RERA –

There were several inequalities and a lot of complaints from that the industry is working in favour of the promoters/builders/developers and the home buyers were offered with little or no protection. RERA has been designed in such a way that it benefits the home buyers more through the security, transparency and protection of the transactions and the details of the project.

RERA Tribunal –

RERA Tribunal has been setup to exclusively for the real estate sector as it is a speedy redressal system compared to the traditional courts because no other kind of matter is accepted. When the party is not satisfied, the party even has the option to appeal to the appellate tribunal for further redressal.

Conclusion –

In such a manner, there are multiple acts governing the real estate sector where the parties get multiple options to file the matter depending upon the nature of dispute. But RERA was absolutely necessary as a separate governing body with respect to the yearly growth the nation is observing in this sector. All new real estate projects are registered and governed under the rules and regulations of RERA. The field is relatively newer and needs proper expertise to be governed while filing a complaint or even for regular correspondence and it is absolutely important to get help of a competent lawyer to resolve the disputes.

Maharashtra Co-operative Societies Act, 1960

What is Co-operative Society?

Basically, after the construction of a building when the builder finishes the project, he will form a society for the building members to convey the title to the society. After that, all the building members come under a co-operative housing society.

So, Co-operative Societies can be defined as an autonomous association of persons united voluntarily to meet their common economic, social, and cultural needs and aspirations through a jointly-owned and democratically-controlled enterprise. The primary goals are to make goods and services available to its members in sufficient quantities, of higher quality, and at fair price.

After handing over of the society, the developer has to transfer the title to the ownership of the society which is essential as the society will have the rights to take decisions regarding the land of the society and will have all the benefits or else the builder might take all the advantages of development scope with himself. The legal document drafted for this process id called Conveyance Deed.

The Maharashtra Co-operative Societies Act of 1960 establishes the framework and rules for the development of co-operative societies in the state of Maharashtra. This Act was enacted by the Maharashtra legislative on 26th January 1962. It applies to the entire state of Maharashtra, providing comprehensive laws for registration, membership, and liability of members, as well as the incorporation of duties and privileges of co-operative societies throughout the state.

Keeping in mind about the quick expansion of the co-operative movement in Maharashtra, this culminated in the formation of co-operative banks under the control of the Reserve Bank of India. Co-operative banks arose from co-operative societies, and the qualitative and quantitative expansion of these urban banks has been boosted by the Reserve Bank of India’s regulation since 1966.

History of Co-operative Housing Society in India

India witnessed a substantial growth of the cooperative housing society movement around the start of the 20th century. The Bangalore Building Cooperative Society was the first cooperative housing society established in Karnataka in 1909, followed by the Bombay Cooperative Housing Association in 1913 in Maharashtra. The association also created the first ever model bye-laws and steered the growth of cooperative housing.

The National Cooperative Housing Federation was established in 1969 as a common forum to support housing societies to obtain funds and general insurance, carry out research and assist state-level Cooperative Housing Federations.

There have been several state and central-level schemes for providing loans and land development assistance to the housing societies. The government has introduced many amendments in cooperative housing laws to make them favorable for small and medium housing societies.

Growth of Co-operative Movement in Maharashtra

The development of the co-operative movement in Maharashtra, as well as the supportive measures that have been put in place to encourage and govern it from time to time, has been distinguished by certain well-defined stages of evolution. These stages may be classified into six stages, as follows:

Pre – co-operative State (1870-1903)
The Initial Stage (1904-1911)
The Evolution Stage (1912-1924)
The Stagnation Stage (1925-1947)
The Growth Stage (1948-1961)
The Diversification Stage (1962 onwards) - Co-operatives have greatly aided Maharashtra’s rural economy. It has been successful in developing grassroots leadership, bringing about stable socioeconomic improvements, and helping to institutionalize the rural economy to a significant extent.

Types of housing cooperatives

Housing cooperatives are classified into the following categories:

Tenant ownership housing societies: In the instance when the Society owns the land and the members own the structure on the plot. The co-operative assigns plots to individual members for the construction of their homes. The society builds infrastructure and may also provide financial assistance to its members. The members are the owners of houses and leaseholders of the land. They need to adhere to the regulations for subletting and transferring the houses.
Tenant co-partnership housing societies: Under this category, the cooperative societies hold the land and building either on a leasehold or freehold basis. The members get occupancy right after paying an initial share and a monthly rent.
Housing mortgage societies: These housing societies are like credit societies that lend money to its members for constructing houses. However, the members are responsible for the arrangement of construction work.
House construction or house building societies: In this category, the housing cooperative societies construct houses on behalf of their members. After the construction of houses, they are handed over to the members. The money spent on the construction are recovered as loans.
Builder Co-operative: Where the builder floats a housing scheme and sells the flats. The purchasers of the units then form a housing society. Such groups are just service or maintenance societies.

Registration of co-operative society

A co-operative society can be registered with the Registrar of Co-operative Societies in Maharashtra State.
Anyone who is qualified to contract under the Indian Contract Act of 1872 may participate in the creation of a co-operative.
A group of 10 people who live in the proposed organization’s operating region and come from different families can apply for the registration of a society.
A society can be registered with the sole purpose of advancing the economic interests or general welfare of its members.
No society that violates the State’s policy guidelines may be registered.
Registration can be received from the registrar after completing the application form and paying the required costs, as well as signing the bylaws.
Division/Amalgamation, transfer and conversion of a co-operative is allowed.
A Co-operative Society may enter into commercial cooperation with any Government Enterprise or any other undertaking with the previous approval of the State Government.
A Co-operative Society can also enter into a partnership with other co-operatives.

Rights of members

The legislation provides for open membership.
If the society rejects an eligible person’s membership application, he or she may file an appeal with the Registrar.
A member has voting privileges in the election of the Managing Committee and the members’ general meeting. Every member has one vote, regardless of the number of shares he owns. Proxy voting is not permitted.
A member may inspect and request copies of the society’s books of account.
Society has three sorts of members: Nominal, Associate, and Sympathizer. A Nominal or Sympathizer member cannot own shares in the society and so lacks the rights of an associated member.

Privileges & duties of societies

A Society is a Body Corporate by the name with perpetual succession and a Common Seal.
It has the authority to purchase, retain, and dispose of the property in its name.
It can enter into a contract.Bring and defend lawsuits and other legal proceedings.
Under the Indian Registration Act of 1908, it is free from obligatory registration of instruments related to shares and debentures of the Society.
Only the property and interests of the borrowing members are subject to the society’s claim next to the government.
It is required for the employer to collect from the employee’s salary the dues of the Society if decided upon by the member. The society has right to collect the unpaid/due amount of maintenance from defaulted members under Sec 156 (b) 29 of the TheMaharatshtra Co-operative Act, 1960
The Society may accept deposits and loans from members and other individuals within the range of the Society’s operations and subject to the Registrar’s approval.
The Society is required to keep and maintain accurate records in the appropriate format.

Management of societies:

Property & funds of the co-operative society

Except for the net profits produced by the Society, no funds shall be distributed to its members.
The finances of the society may not be used to defend any action brought by or against any office-bearer of the Society in his capacity under sections 78, 96, or 144-T of the Maharashtra Co-operative Societies Act, 1960.
Members of the Managing Committee may be compensated for services rendered to the Society.
The Society’s net profit may be appropriated by the members with the consent of the Annual General Meeting.
The Society shall maintain a reserve fund.Every society shall carry at least one-fourth of the net profits each year to the reserve fund.
Investments of Funds should be done in accordance with the rules outlined in the Maharashtra Co-operative Societies Act, 1960.

Audit, inquiry inspection and supervision of societies:

The Registrar of Co-operative Societies requires every Government-aided Co-operative Society to audit its finances at least once a year (i.e., April – March).
All Societies are also required to have their accounts audited by a Certified Auditor once a year.
On an application by society or otherwise, if the Registrar determines that it is necessary or desirable to re-audit any of the society’s accounts, the Registrar may, by order, arrange for such re-audit.
The Registrar has the authority to inspect the operation of the Society on his own or at the request of a creditor of the Society.
Based on the audit or inspection report, the Registrar may commission an investigation into the Society’s affairs. He has the authority to appoint an Inquiry Officer and conduct an investigation via him. Similarly, he can audit a Society just to ensure that all Books of Accounts are correctly maintained and that the Managing Committee is conducting the Society’s activities in a reasonable manner.
If it is discovered that any individual has misapplied or kept any property or money of the Society, or has created a breach of trust, the Registrar may issue an order for compensation.

Dispute settlement & grievance redressal

Disputes about the election of a Managing Committee or the Officers may be made by any member. Disputes might also be brought over the General Meeting’s behavior and the Society’s administration or operations. Such disagreements can be resolved in special courts that solely deal with co-operative issues. These are known as Co-operative Courts.
In the event of a dispute arising from the recovery of sums spent by the co-operative society. If a member’s property is about to be disposed of, the Co-operative Court can seize it. A certificate issued by the official assignee, an authorized person, or the Co-operative Court itself shall thereafter be executed as a Civil Court decision and also executed as land revenue arrears. Any subsequent private transfer of the property shall be null and invalid against the claim Society.

Liquidation of societies:

A Society can be wound up following an investigation and audit, or on an application or by the Registrar on his own, if it is discovered that the Society did not begin and/or has ceased to function.

Members may file an appeal against the decree of liquidation.

The Society registration can be cancelled on receipt of the final report from the liquidator.

The Society can also be cancelled if its affairs are wound up, or if it is de-registered, or its assets and liabilities are transferred.

Offences & penalties:

Following are the offences, which are punishable under the Maharashtra co-operativeSocieties Act:

Transfer of property subject to a charge by the Society;

Failure to take Society dues from an employee’s salary

Failure to invest Society funds

Failure to deposit the Society’s share money with the bank.

Carry out personal business in the name of the Society

Collecting share money through deception

Knowingly issuing fraudulent share certificates

Failure to convene a General Body Meeting

Failure to provide required assistance to authorised people in accordance with the Co-operative Law

Failure to turn over records and property to the administrator or liquidator

Failure to follow the Registrar’s instructions

Willful failure to provide any information requested by the Registrar or the Auditor

Failure to abide by any decision, award, or order

Fraudulent disposition of any property over which society has a previous claim

Destroying, mutilating, interfering with, modifying, or forging the Society’s documents.

Penalties of up to Rs.5000/- and/or imprisonment for up to three years may be imposed.

Amendment of Maharashtra Co-operative Societies Act, 1960 :

Following the 97th Amendment to the Indian Constitution, states were mandated to revise their respective co-operative legislation within one year of the amendment to the constitution. On February 13, 2013, the Maharashtra government enacted an Ordinance amending the Maharashtra Co-operative Societies Act, 1960.

The modifications went into effect from February 14th, 2013. Later, an amendment act to amend the Maharashtra Co-operative Societies Act, 1960, was presented and approved in the Maharashtra assembly. The Maharashtra Co-operative Societies Act, 1960, was amended as follows:

Each member of a co-operative housing society must attend at least one General Body Meeting every five years and use the services specified in the society’s By-laws. Failure to do so will mark the member as inactive, and he or she will be unable to vote. However, if the non-active member meets the qualifying conditions, they might be reclassified as an active member. This will empower the co-operative societies to discharge a latent member.
The elected members of the Management Committee and its Office Bearers will serve for a period of five years.
The Management Committee shall not have more than 21 members, with two seats designated for women, one for tribes and VimuktaJati, one for SC, and one for other backward classes.
The State Government should establish the State Co-operative Election Authority as the authority in charge of supervising, electing, and controlling the preparation of electoral rolls for all societal elections.
The General Body Meeting must be convened within six months after the conclusion of the fiscal year.

The amendments to the Act were primarily intended to combat increasing corruption, governmental involvement, and politics in Co-operative societies.

Conclusion:

A co-operative is a system of thought, emotions, and action shared by a group of people in comparable situations that are founded on mutuality and provide all of its members with an aim and a code of conduct. The movement has played an important role in the state’s social and economic growth, particularly in rural regions. Although at first this movement was focused on agricultural credit, it moved fast to other domains like agro-processing, agro-marketing, rural industries, consumer shops, social services and so on. The co-operative movement in Maharashtra has played an important role in the state’s social and economic development, particularly in rural regions.

NEGOTIABLE INSTRUMENTS ACT 1881

Documents of a certain type used in commercial transactions & Monetary dealings are called Negotiable Instrument.

Negotiable –
Means transferable from one person to another.

Instrument –
Means any written document by which a right is created in favor of some person.

HISTORY OF THE NEGOTIABLE INSTRUMENT ACT –

The Negotiable Instrument Act was first drafted in 1866 and came into force in 1881. It is originally a colonial law, still widely in practice. After a century, Chapter XVII, Section 138 to 142 were inserted in the Act vide Section 4 of the Banking, Public Financial Institutions and Negotiable Instruments Laws (Amendment) Act, 1988, (Act 66 of 1988). Section 138 of the Act deals with the punishment for the dishonor of the cheque. The act was introduced to ease the growth of banking and commercial transactions. The basic purpose was to legalize the system of negotiable instruments. The Act was enforced during British rule and to date, most of the provisions still remain unchanged. The Ministry of Finance is the nodal organization that regulates the system related to negotiable instruments. The process of transfers from one person to another in dealings of monetary value in terms of legal documents is the negotiable instrument. The legal definition of negotiable is that something can be transferable from one party to another party by delivery so that the title shall pass with or without the endorsement to the transferee. After getting a better clarity of the concept, the other important aspects and the Act have been discussed in the content.

PURPOSE -

Main purpose of negotiable instruments is to avoid the carriage of higher amount of money and to reducing the risk of theft; robbery etc.

To give legal effect to negotiable instruments there is legislation and the name of that legislation is The Negotiable Instruments Act, 1881.

DEFINITION-

Negotiable Instrument –
According to section 13 of the Negotiable Instrument act (NI) 1881. NI means a promissory note, bill of exchange or cheque payable either to order or to bearer. Thus, Negotiable Instrument in simple terms means any written document which is transferable on delivery.

Promissory Note –
A promissory note is an Instrument in writing containing an unconditional undertaking, signed by the maker to pay a certain sum of money to, or to the order of, a certain person or to the bearer of the instrument.

Bill of Exchange -
Containing an unconditional order signed by the maker to pay a certain sum of money to, or to the order of, a certain person or to the bearer of the instrument. It’s also called as a draft.

Cheque –
A cheque is defined as a bill of Exchange drawn on a specified banker & not expressed to be payable otherwise than on demand.

Endorsement –
When a maker or a holder writes the person’s name on the face or back of the instrument & puts his signatures thereto for the purpose of negotiation, it is called endorsement.

SECTION 138 0F THE NEGOTIABLE INSTRUMENT ACT

Section 13 of the Negotiable Instruments Act defines negotiable instruments as “a promissory note, bills of exchange or cheque payable either to order or to bearer”. A negotiable instrument is a kind of document that guarantees its bearer a sum of money to be payable on demand or at any future date. Section 138 of the NI Act is a penal provision that deals with the punishment of dishonor of cheque. Dishonor of cheque is not an offence in itself but to become an offence, the following ingredients should be there:

There should be a drawer that draws the cheque.
The cheque drawn should be in discharge of some liability.
Presentation of the cheque to the drawee bank.
The cheque returned by the bank unpaid on account of insufficient funds.
The cheque should be presented within six months from the date on which it was drawn or within the period of its validity, whichever is earlier.
Within thirty days of receiving a memo of return from the bank, a notice should be served to demand the payment of the said money.
The drawer fails to pay the said money within 15 days of the receipt of the said notice.

MAIN REASONS OF THE DISHONOR OF CHEQUE-

Important Note –

It is to be noted here that if the drawer pays the debt within 15 days, there would be no offence. The offence is said to be committed under Section 138 of the NI Act, only when he fails to pay the debt within 15 days and such person shall be punishable with imprisonment for a term which may be extended to two years, or with a fine which may extend to twice the amount of the cheque, or with both.

TIME FRAME TO FILE A CASE

Bank informs to the holder that the dishonor of the cheque with the cheque return memo and specifies the reason.
With the receipt of the cheque return memo, holder can issue a legal notice to the drawer within 30 days.
Holder can demand a payment from the Drawer till the 15 days after the Drawer receives legal notice.
If drawer has failed to pay the payment within 15 days, holder has a right to file a court case against the drawer within a month.

But the courts can take cognizance of the offence only when:

The cheque is presented to the bank within 3 months from the date on which it is drawn; Notice has been issued to the drawer demanding the defaulted payment within 30 days from the date of dishonor by the bank;

The drawer fails to pay the defaulted payment within 15 days from the receipt of the notice. Judgement would apply retrospective effect. The Supreme Court had directed that only in those cases where post the summoning and appearance of the alleged accused, the recording of evidence has commenced as envisaged in section 145(2) of the Negotiable Instruments Act, 1881, proceeding will continue at that place. All other complaints (including those where the accused / respondent has not been properly served) shall be returned to the complainant for filing in the proper court, in consonance with exposition of the law, as determined by the Supreme Court.

After the amendment in 2015, The Gujarat High Court in its judgment in Brijendra Enterprise v. State of Gujarat and Another [9] has explained the law relating to territorial jurisdiction for filing a complaint for dishonor of cheque.

JURISDICTION OF MAGISTRATE FOR FILING CHEQUE BOUNCE SUIT

The payee can file the complaint before the Magistrate in any of the following places:

Where the cheque was drawn.
Where the cheque was presented for payment.
Where the payment had to be made.
Where the cheque is dishonoured.
Where the demand notice was served.
The cheque bounce complaint has to be filed before the Metropolitan Magistrate if the cheque bounce suit falls in any metropolitan city. If the suit for cheque bounce falls in any other city, the complaint must be filed before the Judicial Magistrate.

PUNISHMENT

In civil- Payee/Drawee may initiate recovery procedure under Order 37 of the Code of Civil Procedure,1908 in a jurisdictional court apart from criminal proceedings. The payee/drawer recovers the amount by the court order.

In criminal- Dishonor of Cheque attracts section 138 of Negotiable Instruments Act,1881 which provides imprisonment which may extend up to two (2) years or fine which may extend up to twice of the cheque amount or both. This offence is bailable, compoundable and non-cognizable offence (a case in which a police officer cannot arrest the accused without an arrest warrant).

HOW TO RESPOND TO A CHEQUE BOUNCE CASE

The first step would be to reply to the legal notice for your defence or pay the cheque amount to avoid any further legal proceedings. But before replying, you must consult a legal practitioner who is an expert in cheque bounce. If the cheque amount is paid at the starting stage, the matter will be resolved then and there.
The reply for the legal notice does not possess any specific format but make sure that you mention the following subjects in the reply:
Address the reply of the legal notice to the lawyer of the drawee.
Your description, name, and address.
Facts of the issue: date of issue, cheque-return memo, etc.
Rebuttal of the allegations made against you.
Refrain from admitting to any allegation against you mentioned in the notice.
Any complaints against the drawee of the cheque.
A summary of your defence against the allegations mentioned in the legal notice for cheque bounce.
The reply to any legal notice must be sent on a lawyer’s letterhead.

CONCLUSION

The above discussion makes clear that Negotiable instruments are the documents which are related to the business transactions. Negotiable instruments play a major role in trade world. We can use negotiable instruments for international trades. These instruments can either be negotiable or non-negotiable. But they must come under one of the two categories. An instrument can become negotiable either by statute or by mercantile usage. These instruments are in written form so in case of non- payment the person to whom the payment to be made can sue the other person by whom the payment shall be made. Bill of exchange, cheque and promissory notes are three important negotiable instruments with different features.

These are the instruments which are broadly used for international trade. These instruments are freely transferable by one person to another person any number of times. Cheque is a document for easy payment but payment can only be made on demand and a cheque is valid only for 3months. There is no requirement of stamping. There is a particular form of cheque and it is an order to pay. BOE is a written document that shows the indebtedness of the debtor towards the creditor. It must be stamped and it cannot be made payable on demand. Promissory note is a written promise to pay at a future specified date. These negotiable instruments are still in use even after the electronic revolution. The electronics revolution is considered as the next major step which replaces the negotiable instruments.

TRANSFER OF PROPERTY ACT 1882

A transfer refers to a conversion of a thing from one person to another person. Property may be defined as anything physical or a virtual entity owned by an individual or a group of people. A property can be transferred from one person to another person by transferring rights, or interest, or ownership, or possession the party can satisfy either or all the ingredients.

Under the Indian legal system, properties are divided into two categories – movable and immovable. The Transfer of Property Act (ToPA), 1882, which came into force on July 1, 1882, deals with the aspects of transfer of properties between living beings. One of the oldest laws in the Indian legal system, the Transfer of Property Act is an extension of the law of contracts and runs parallel to the succession laws. For those planning to transfer their immovable property, knowing the key aspects of the Transfer of Property Act is quite important.

The transfer of property can be made in the two following ways:

First: act of the parties;

Second: by law.
Transfer of property is defined under Section 5 of the Transfer of Property Act, 1882. It refers to an act done by a living person conveying property to one or more person or by himself or by one or more living persons in the present or the future. Living people include a company, an association, or body of individuals whether incorporated or not.

Illustration?

Immovable property	Living to living	Transfer of property Act, 1882
Movable property	Living to living	Sale of goods Act, 1930
Immovable property and Movable property	Dead to living	Indian Succession Act, 1925

Background of the Transfer of Property Act, 1882

Before the advent of the British Raj system in India, Hindus, and Muslims were governed by their personal laws for the transfer of property. When Britishers were actively involved in the Indian Legal system they established informal Courts in which clear and concrete law was absent as compared to the law that was prevailing in England. Various High Court expressed the need for creating specific acts related to the transfer of property. As the principle of a good conscience, equity, and justice was confusing and created various uncertainties, the privy council noted the uncertainties and also told the authorities to take immediate action.

So, the first commission was appointed by the British Queen Elizabeth II to remove uncertainties. On matters related to the transfer of property. The draft was sent in India after certain amendments were introduced in the legislative Council in 1877. It was then sent to the selection committee but it was reversed due to the public criticism. The Bill was redrafted by the Second law commission. Some of the provisions were borrowed from English law on real property, the Law of Conveyancing and Property Act, 1881. Mostly the law was shaped in such a manner that suits the Indian population and can be easily understood by a non-professional judge.

Despite various amendments made by the Second Commission, there was an expansion of the law. Therefore a special committee was appointed to make the amendments in the prevailing act. So various amendments were made in the act to expand its scope and correct the existing errors.

Important concepts highlighted in the Act

Immovable property: According to the General Clauses Act, 1897 immovable property includes land, benefits arising out of the land, things that are attached to the land. Under transfer of property, the immovable property can be defined as all property are immovable property other than standing timber, growing crops, or grass. Narayana Sa vs. Balaguruswami (1923) In this case, large artillery was fixed for blowing liquor. The Court held that it would be considered as movable property if it was fixed in the land, not with an intention for beneficial enjoyment.

Mortgage debt: After the amendment of 1900 mortgage debt was excluded from actionable claims. In Peruma animal vs. Peruma Naicker, Wallis C.J.held that before 1900 mortgage debts could be transferred as actionable claims, it was excluded from the actionable claims, the legislature intended that the mortgage debt must be transferred in mortgagee’s interest through a registered instrument.

Instrument: According to the transfer of property Act, 1882 instrument refers to a non-testamentary instrument. It acts as evidence of the transfer of property between living parties. According to the legal dictionary, an instrument refers to a formal legal document.

Attested: It refers to a formal document signed by a witness. The transferors of the property are known as the executant. The amendment act was introduced in 1926 which mentioned that there must be two or more witnesses who must sign the document in presence of the executant not necessarily at the same time but they shouldn’t be the party to the transfer.

Registered: According to the transfer of property Act, 1882 registered refers to any property registered where the act is operative. One must comply with various procedures of registration.

The description of the property should be mentioned.
Avoid fraud.
Deeds should be presented by a competent person.
The property must be registered in the same territory where the registered office is situated.

Actionable claims: A claim to any debt, other than the debt secured by mortgage of immovable property or by hypothecation or pledge of movable property or to any beneficial interest in a movable property or to any beneficial interest in movable property not in the possession, either actual, or constructive possession of the claimant which the civil courts recognize as affording grounded of relief, whether such debt or beneficial interest be existent, accusing, conditional or contingent. Illustration: A has given his house to B for rent but B hasn’t paid the rent because this would amount to an actionable claim.

Notice: Notice refers to knowledge of the fact. The person has knowledge of facts about various circumstances. According to the Transfer of Property Act, 1882 it prescribed two kinds of notices Actual or implied notice: The person having actual knowledge about a particular fact. Constructive notice: The knowledge of the fact is obtained through circumstances.

Essential elements of the Transfer of Property Act, 1882

To be a living or juristic person: For a transfer of property, there must be a transfer between living or a juristic person. In Shiromanigurudwara Prabhakar committee, Amritsar v. Sri Somnath Dass (2000) the court defines a juristic person which can be an individual firm, corporate, company society, association, but not a partnership. Anyone who can sue or can be sued would satisfy this requirement.
Transfer through Conveyance: Conveyance of property can be either done in the present or in the future. It is necessary to ensure nothing is transferred before the title.
The Property must be transferable: According to Section 6 of transfer of property Act, 1882 there are properties which cannot be transferred:

The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature cannot be transferred.
The mere right to re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner.
The easement right cannot be transferred.
The interest of the property restricted in its enjoyment to the owner cannot be transferred.
Political pensions, public office, the salary of the public officer cannot be transferred.
The right to sue cannot be transferred.
Stipends to military, navy or the airforce, political pensioners, and civil pensioners cannot be transferred.
No transfer cannot be made as opposed to the natural interest or if the object or the consideration is unlawful then the transfer cannot be held valid.
The right to future maintenance cannot be transferred.
Tenants having an untransferable right to occupancy, the farmer of an estate in respect of which default has been made in paying revenue or lessee of an estate under the management of the court of wards, to assign his interest as the tenant, farmer, or lessee.

Transfer of property must be done by a competent person: For a valid transfer, it is necessary that the property transferred should be of a sound mind, should not be intoxicated, must be a major or he is not a person disqualified by law cannot enter into a contract of transfer of property with another person.
The transfer should be made in a prescribed form: The transfer of property need not be in be made in writing however certain property to transfer then it must be in writing:

Sale of movable property value more than a hundred rupees.
Sale of intangible must be in a written format.
All mortgages which are more than a hundred rupees should be transferred in a written form.
The transfer of actionable claims must be in a written form.
A gift in a form of immovable property.
Lease of immovable property exceeding more than one year.

The rule against perpetually: It is necessary that the property must be transferred during the lifetime of an individual perpetuity rule should not be followed during the time of transfer of property.

Property cannot be transferred to an unborn child: A property cannot be transferred to an unborn child necessary to consider that while transferring the interest of the property person should be above the age of 18 years.

Conditional transfer of property: Under Section 25 of the transfer of property Act, 1882, the property can be transferred complying to the condition mentioned. If the condition becomes impossible, forbidden by law, opposed to public policy, or is immoral the transfer would be held void.

Illustration: A is interested in purchasing B’s property but B sets a condition that A in order to purchase B’s property has to kill C here the transfer is through unlawful act, therefore, the transfer would be held void.

Kinds of transfer under the Transfer of Property Act, 1882

Sale of immovable property: There is a transfer of ownership from the buyer to the seller in exchange for the price. Delivery of tangible property from the seller to the buyer.
Mortgage of immovable property: The property gets transferred from the buyer to the seller in the form of a mortgage where the immovable property is mortgaged to secure a loan. The mortgagor has to pay the principal loan along with the interest to release the immovable property from the mortgage.
Leases of immovable property: The possession of the property is being transferred from one person to another person for a fixed price in this scenario there is no transfer of ownership.
Exchange of immovable property: When two persons mutually decide to transfer immovable property it would be referred to as an exchange of property.
Gift of immovable property: According to the transfer of property Act, 1882, gift refers to a transfer of movable or immovable property violently or without the consideration, by one person that is donee, to donor transfer is accepted by and on behalf of the donee.

Features of Transfer of Property Act, 1882

Scope of the Transfer of Property Act

Ways in which property transfer can take place

Parties: Under the Transfer of Property Act, a transfer of property can be effectuated by an act of two or more parties or an act by the operation of the law.

Type of property: The Transfer of Property Act is applicable primarily on transfer of immovable property from one living being (inter vivos) to another. Also, the Act is applicable on property transfer by individuals, as well as by companies. However, the Transfer of Property Act is applicable to acts of parties and not on transfers applicable by the law.

What does ‘transfer’ mean under the Transfer of Property Act ?

The term transfer includes transfer through sale, mortgage, lease, actionable claim, gift or exchange. The Act does not cover transfers by the operation of law, in the form of inheritance, forfeiture, insolvency, or sale through the execution of a decree. The Act is also not applicable on the disposal of properties through wills and does not deal with cases of succession of property.

Who can transfer property under Transfer of Property Act?

Section 7 of the Transfer of Property Act lays down the rules, vis-à-vis people who are legally eligible to transfer their property.

‘Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property, either wholly or in part and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force,’ the section reads. Under the Indian Contract Act, 1872, a person must be at least 18 years of age and have a sound mind, to be eligible to enter into a contract.

Properties that cannot be transferred under Transfer of Property Act

In terms of immovable property, one cannot transfer a property that one expects to inherit in future, states the

Transfer of Property Act.

Example: Ram expects that his maternal uncle, who had no children of his own, would bequeath his property to him and he transfers his right in the property to his son, the transaction would be held invalid. A lessor can also not transfer his right to re-entry into a leased property, under the Transfer of Property Act. Example: Ram leases his plot to Mohan and puts in a clause in the lease agreement that he would have the right to re-enter, if the rent is not paid for over three months, then, he alone will have the right to do so. He cannot pass on his right to re-enter to, say, Ganesh, his associate.

A real estate developer who has entered into a joint development agreement (JDA) with a land owner, to build a project on the latter’s land, is also not allowed to transfer the ownership of the project thus created under the provisions of the ToP Act. The implications of the JDA are restricted only to the development part of the project. The builder will have to get a general power of attorney to sell the project on behalf of the owner. Even in this scenario, the land owner will be the one providing the conveyance deed to the prospective buyers of the project. The Act also prohibits the transfer of easement rights – a right to use someone else’s land or property in some way. These include the rights of way (passage), the rights of light, the right of water, etc. Example: Ram has a right of passage over the land belonging to Mohan. Ram decides to transfer this right of way to Ganesh. As this is a transfer of an easement right, it is invalid.

One can also not transfer one’s interest in a property, restricted in its enjoyment. Example: If a house is lent to Ram for his personal use, he cannot transfer his right of enjoyment to Mohan. A right to future maintenance is only for the personal benefit of the person to whom it is granted. Hence, this right cannot be transferred. A tenant having a non-transferable right of occupancy, cannot alienate or assign his interests in the occupancy. Similarly, a farmer of an estate that has defaulted in paying revenue, cannot assign his interest in the holding. The same is true of a lessee of an estate under the management of a court of wards.

Transfer of property through verbal/oral agreement under Transfer of Property Act

Section 9 of the Transfer of Property Act says that property transfers could be affected though an oral agreement, unless the law explicitly states that a written agreement must be prepared to conclude the transaction. In the case of immovable property of value less than Rs 100, such transfers may be made either through a registered instrument or by delivery of the property. This means that practically no immovable property can be transferred in the name of another individual without executing a written document. However, oral arrangements do not typically work, except for partition of property among family members, where the family members can enter into a verbal agreement and divide the property for practical purposes. Exchange of property often requires written agreements for the transaction to be legally valid. This is true for sale, gifts, leases, etc.

Transfer of property to an unborn child under Transfer of Property Act

A person who is planning to bequeath his property to more generations than one, will have to keep the provisions of the Transfer of Property Act in mind, while doing so. This becomes imperative to avoid legal complications at a later stage.

Under the provisions made in Section 13 and Section 14 of the Transfer of Property Act, the transfer of a property directly in favour of an unborn child is prohibited. For this to happen, the person intending to make the transfer will first have to transfer it in favour of a person who is alive on the date of transfer. The property will have to vest in the name of this person, till the time that the unborn child comes into existence. Basically, the interest of the unborn child in a property must be preceded by a prior interest. Example: Suppose Ram transfers his property to his son Mohan and thereafter, to his unborn grandchild. In case he was not born before the death of Ram, the transfer would not be valid. The transfer would be valid, if the child is born before Ram passes away and the interest of the property vests in Mohan, till the child is born.

Responsibilities of the seller during transfer of property under Transfer of Property Act

Section 54 of the Act talks about the responsibilities of the seller of a property:

To disclose to the buyer any material defect in the property.
To provide to the buyer on his request for examination, all documents of title relating to the property.
To answer to the best of his information, all relevant questions put to him by the buyer with respect to the property or the title.
To execute a proper conveyance of the property, when the buyer tenders it to him for execution at a proper time and place, on payment or tender of the amount due in respect of the price.
To take as much care of the property and all documents, which are in his possession, as an owner of ordinary prudence would take of such property, between the date of the contract of sale and the delivery of the property.
To give the buyer possession of the property.
To pay all public charges and rent accrued with respect to the property, up to the date of the sale.
To discharge all encumbrances on the property then existing.

Duties of the buyer during transfer of property under Transfer of Property Act

To disclose to the seller any fact about the property, of which the buyer is aware of but has reason to believe that the seller is not aware of and which materially increases the value of such interest.
To pay the purchase money to the seller at the time and place of completing the sale.
To bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller, where the ownership of the property has passed on to the buyer.
To pay all public charges and rent, which may become payable on the property, the principal monies due on any encumbrances subject to which the property is sold and the interest thereon afterwards accruing due, where the ownership of the property has passed on to the buyer.

Tenancy agreements governed under Transfer of Property Act arbitrable: SC

The Supreme Court, on December 14, 2020, ruled that landlord-tenant disputes can be resolved through arbitration, except when they are covered by specific forum created by the rent control laws. In a landmark verdict in the Vidya Drolia and others versus Durga Trading Corporation case, the SC has ruled that arbitral tribunals have the power to decide such cases under the Transfer of Property Act.

However, for these disputes to be resolved through arbitration, the rent agreement must have an arbitration clause – this means the decision to include a clause to this effect in a landlord-tenant agreement lies with the parties concerned.

Conclusion

The Act was introduced with an intention to create a comprehensive Act which provides information about the transfer in a very simple language during the time of introduction it was not complete and had various uncertainties. It has gone through various amendment processes and the act has proved it time and again about its effectiveness. In India, many more such acts like transfer of property Act, 1882 are still in need to be implemented.