Impounding a document

Impounding a document

Certain documents are compulsorily registerable under the Indian Registration Act 1908, which are classified under Section 17 (1);

They are, the instruments of gift, sale, all non-testamentary documents which operate to create, assign or limit any right, title or interest in immovable property.

Certain other documents which are not compulsorily registerable, though its registration is optional, which are classified under Section 17(2) of Registration Act 1908;

They are,

(i)                  Shares in a Joint Stock Company, any debenture issued by such company;

(ii)                Any transfer of immovable property of the value below Rs.100/-

(iii)               Any Grant of immovable property by the Govt.

(iv)              Any order granting loan under the Land Improvement Act 1871 or the Agriculturists Loan Act 1884;

(v)                Any order made under the Charitable Endowments Act 1890, vesting any property in a Treasurer of Charitable Endowments.

(vi)              Any endorsement on a mortgage deed acknowledging the payment of the mortgage money;

(vii)             Any ‘Certificate of Sale’ granted to the purchaser of any property sold by public auction by a Civil Officer or Revenue Officer.

The Consequences of non-registration of documents which are compulsorily registerable:

Section 49 of the Registration Act deals with ‘effect of non-registration.’

Sec.49: “No document required by section 17 (or any provision of the Transfer of Property Act 1882) to be registered shall –

(a)    affect any immovable property comprised therein; or

(b)   confer any power to adopt, or

(c)    be received as evidence of any transaction affecting such property or conferring such power,

unless it has been registered.

Provided that an unregistered document affecting immovable property to be registered may be received as evidence of any ‘collateral transaction’ not required to be affected by registered instrument.

(Collateral transaction: An unregistered sale deed cannot be received as evidence in a Court of law to prove the factum of sale, but it can be accepted (for collateral purpose) to prove the factum of possession of the purchaser in the immovable property purchased by him.)

Unregistered documents of the category of Section 17(1), (which are compulsorily registerable) will be inoperative so far as the immovable property in it is concerned.

Collateral means something other than main transaction; and it is always independent to the main transaction.

Impounding an instrument which is not duly stamped:

Section 33 of the Indian Stamp Act 1899 deals with impounding of an instrument.

Sec.33 “Every person having authority to receive evidence, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his function, shall if it appears to him that such instrument is not duly stamped, impound the same.”

Provided such instrument which is not duly stamped may be produced before any Magistrate, Judge of a Criminal Court to examine. (i.e. in criminal proceedings such instruments shall not be impounded.)

Section 35 deals with the inadmissibility of the instrument not duly stamped;

Sec.35: “No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having authority to receive evidence, unless such instrument is duly stamped.

Provided it may be admitted in evidence on payment of the duty with which the same is chargeable together with a penalty of ‘ten times’ the amount of the proper duty or deficient portion  thereof.

Transfer inter vivos

Transfer of Property Act 1881

“Transfer inter vivos”

It deals with the ‘transfers by act of parties’ (it is also called as ‘transfer inter vivos’)

The term ‘inter vivos’ means ‘between living persons’

That means it does not deal with ‘transfers by operation of law.’

Transfers by operation of law refers to ‘transfers under statutory provisions.’

(i.e. if a purchaser acquired a property in a court auction sale, such transfer of title is called as ‘transfer by operation of law.’ i.e. it is not a transfer vivos i.e. it is not a voluntary transfer between two living persons.)

TP Act helps the law of intestate and testate succession also.

Originally this Act was enforced to the whole of British India except the princely States.

Now it applies to the whole of India except Jammu & Kashmir.

TP Act does not deal with transfer by operation of law.

TP Act does not apply to any transfer by, or in execution of a decree or order of a Court.

But the sale, by an Official Receiver by selling the property of an insolvent, is a transfer ‘by act of parties’ and hence the TP Act applies.

The Chapter II of the TP Act, i.e. from Section 5 to 53-A, does not affect the rules of Mohammedan Law.

Alimony

Alimony

It is a Latin word. (alimonia = sustenance, nourishment)

Two types of Alimony:

1. Alimony pendente lite (till the decree of divorce is passed)

2. Alimony permanent (Post-Alimony) granted at/after divorce is passed.

Even a divorced wife can claim her maintenance till she married another.

It is the duty of the husband to maintain his wife during her lifetime.

Alimony is also called as 'spousal support' or 'maintenance.'

Even the husband can ask for such alimony from his wife, if he is unable to maintain himself.

In India, the amount of alimony shall be decided by the Judge at his discretion depending upon the life style conditions of the spouses.

Now a new law is proposed in India.

The Marriage Law's (Amendment) Bill 2010, which is going to deal with division of spouses’ properties in the event of divorce.

The idea behind is to allot 50% share to the other spouse, at the instance of divorce, in the properties purchased either of them after their marriage.

Judicial Separation

Judicial Separation under the Hindu Law:

It is a separation of a spouse from the other spouse, from the obligation of living together.

It is a decree passed by the Court on the application of either party.

The reason for Judicial Separation is the same for the divorce.

Judicial Separation is not at all a complete dissolution of marriage.

It legally encourages to living apart.

After passing of the decree of Judicial Separation, the spouses have no such obligation to live together or cohabit with other.

It is a ground for divorce if the decree of Judicial Separation prolongs for one year.

Application for Judicial Separation can be filed at any time during the subsistence of marriage, but in the case of Divorce such application can be filed only after one year of the date of such marriage.

All the grounds for Divorce are also available for the application of Judicial Separation.

If the marriage itself is ‘void ab initio’ (from the very beginning itself), no such Judicial Separation can be sought, but can file an application for nullity of such marriage.

(Void marriages are such as bigamy, prohibited degree of relationship and the relationship of sapindas of each other; though such marriages are legally null and void, the children born out of such marriages are legitimate).

Grounds for Divorce:

1.       Having sexual relationship with any third party, other than his/her spouse.

2.       Treating cruelly (both physical and mental) – drunkenness is not amounting to cruelty, but it should be coupled with inflicting such cruelty.

3.       Deserting the other spouse for two years without any legal reasons.

4.       Converting into other religion.

5.       Either spouse is suffering from unsoundness of mind like schizophrenia.

6.       Either spouse is suffering from incurable leprosy, communicable venereal disease.

7.       Either spouse renounced the world and entered into religious order.

8.       Either spouse has not been heard as of his/her living for 7 years.

9.       No cohabitation for one year after passing of the decree of judicial separation or restitution of conjugal rights.

10.   Wife can also ask for divorce on the special grounds viz. (1) her husband has married another lady; (2) her husband is guilty of rape; (3) if he has not cohabitated for more than one year after passing the Court’s order of paying maintenance to her.

Judicial Separation as an ALTERNATIVE RELIEF:

Judicial Separation may be granted by the Court in the Divorce proceedings or as interim relief during the divorce proceedings.

We do not know the psychological reasons behind it in the minds of the parties who are very much interested to get Divorce rather than getting Judicial Separation.

The Courts may encourage passing such decrees of Judicial Separation rather than Divorce decrees in appropriate cases in the interest of society and to find out the bona fide of the ‘irretrievability of the broken marriages.’

guardian ad litem

Guardian ad litem (guardian for the litigation)

Guardian ad litem means ‘guardian for the litigation’

‘ad litem’ is a Latin term.

This guardian is acting like a ‘curator.’

Under the Indian Civil Procedure Code the suit, on behalf of the minor, should be instituted by the ‘next friend’ of that minor. He/she is guardian for the litigation of the minor (or guardian ad litem).

In the normal court practice, the ‘guardian ad litem’ is shortly used as ‘GAL’.

In some western countries, he is called as Attorneys for the child (or AFC).

Guardian ad litem is the ‘care taker’ of the child (or minor).

Such guardian ad litem shall act solely for the welfare of the minor child.

As he is the guardian for litigation of the minor child, he cannot sell or otherwise dispose of the minor’s property.

The Indian Majority Act 1875 (the oldest Act still in force) says ‘every person domiciled in India shall attain the ‘age of majority’ on completion of 18 years (i.e. at the beginning of 18^th anniversary or on his/her 19^th Birthday) and not before, unless the personal law specifies otherwise and in the matter of religious rites and usages.

The personal law of the minor person applies only respect of his/her marriage, divorce, dower, adoption.

A ‘minor’ under Mohammaden Law is a person who has attained puberty.

Puberty: In the case of a boy is the 15^th year of the boy; in the case of a girl on her 15^th year or on the date on her actual attainment of puberty, whichever is earlier. (Note: this is only for his/her marriage, dower and divorce; in other matters the Indian Majority Act 1875 will apply).

Under old traditional Hindu Law, the majority of a Hindu minor was 15 years in South India and 16 years in the other parts of India. After the passing of the Hindu Minority and Guardianship Act 1956 the majority age of the majority is on completion of 18 years.

Under the Hindu Marriage Act 1955 (original Act) the age of valid marriage was fixed at 18 for the boys and 15 for the girls. Subsequently by the Child Marriage Restraint (Amendment) Act in the year 1978, this age limit has been raised to 21 for the boys and 18 for the girls.

The Guardians and Wards Act 1890

Under this Act the District Courts (and also the Chartered High Courts) are having power to appoint guardian of the minors (of his person or property or both), who belong to any religion.

factum valet

Factum Valet

It is a Latin maxim - ‘factum valet quod fieri non debuit’

It literally means that ‘what ought not to be done, become valid when done it already.’

This doctrine was applied on the grounds of equity, justice and good conscience while administrating the old Hindu Law texts.

Certain formalities stipulated in the old Hindu Law were ‘directory’ or recommendatory. Violation of such formalities were cured by this doctrine.

If such formalities are ‘mandatory’ in nature, then this doctrine cannot be applied to cure such defect.

Before the Hindu Marriage Act 1955 there was no codifying Act for marriages of Hindus and it was regulated only by the ancient Hindu texts, Dharmasastras. In the ancient Hindu texts there were no mandatory rules to be followed; and if anyone contravened such guidance found in the ancient text, he/she could do so; and on such doing it was excused by applying the principle of ‘factum valet.’ i.e. such violation of the guidelines in the ancient texts could be cured as if it was not prohibited in anywhere in the ancient texts.

In the ancient text, the father had to give consent for the marriage of his minor daughter given in marriage to a boy. In the absence of the father, his wife i.e. the mother of the girl gave such consent to such marriage. In the ancient Hindu text, only the father had to give such consent and not the mother. Though it was not prohibited, the mother had done it. Such defect in giving consent was cured by applying this principle of factum valet.

NOW most of the Acts, Rules are mandatory in nature and hence this doctrine is seldom applicable.

Who is a Mitakshara Hindu?

Who is a Mitakshara Hindu?

Srutis: Srutis are ‘Vedas’.

‘What was heard from the God is called Srutis.’

There are four vedas viz. Rig, Yajur, Sama and Adharvana.

Sage Vyasar gave those Vedas.

Smritis: Smritis are what was recorded by the sages from Vedas.

Among the various Smritis, Naradha Smritis and Manu Smritis are famous.

Naradha Smritis deals with the power of the kings to make laws.

Manu Smritis and Brihaspati Smritis deal with all types of laws.

All the Smritis did not agree with each other and they differ in their own commentaries.

Their commentaries are called as ‘Nibandhas.’

Mitakshara School:

Vijnanesvara, a scholar, commended on the Smritis called ‘Yajnavalkya Smritis.’

Vijnanesvara’s commentaries on Yajnavalkya Smritis are called as Mitakshara School of Hindu Law. (It is prevailing throughout India except Bengal and Assam).

Jimutuvahana commentaries on Yajnavalkya Smritis are called as Dayabhaga School of Hindu Law. (It is prevailing in Bengal and Assam).

These two Schools are considered as one of the main authorities on HINDU LAW.

The main differences of the two Schools are:

1.       Under Mitakshara School, the right to inherit property is by birth of a son.

2.       Under Dayabhaga School, the right to inherit property is not by birth but only on the death of the father.

3.       Under Mitakshara School, the nearest in blood relation would get the property.

4.       Under Dayabhaga School, the person who offering ‘pinda’ (food offered to the deceased ancestor) would get the property.

5.       Under Mitakshara School, the devolution of property is by ‘survivorship.’

6.       Under Dayabhaga School, the devolution of property is by ‘inheritance.’

Under the old Hindu Mitakshara Law, only the male descendants alone take the joint family property and the females were not entitled to a share in the joint family property.

NOW after passing of the Hindu Succession Act 1956, it was changed drastically and thus certain female members are also entitled to the joint family property.

NOW after the Amendment Act 2005 (to the Hindu Succession Act 1956) the daughters are equally entitled to, at par a son, in the joint family property.

Illatom Son-in-law

“Illatom Adoption”

It is an adoption of a ‘son-in-law’ instead of a ‘son’

This type of adoption prevails in some particular communities that too in agricultural families of Tamil Nadu and Andhra Pradesh.

The father-in-law adopts a son-in-law instead of a son and gives his daughter in marriage and keeps his daughter and son-in-law in his family.

The adopted son-in-law, after marrying the daughter of his father-in-law stays in the family of the father-in-law and helping him in all family management as if his son.

Though the adopted son-in-law is ‘not a son of the adopted father-in-law’ like a coparcener but he has the same rights of a natural son in all practical purposes, except the right of partition in the father-in-law’s property.

He is called as ‘illatom son-in-law’.

It prevails only in some particular communities of Hindus and no such custom among Christians and Muslims.

These customary incidents being well known would not ordinarily be the subject of specific agreement, as it is settled by the Privy Council’s decision in Krishnamma vs. Venkatasubbayya (1919) 37 MLJ 1: LR 46IA 168: ILR 42 Mad 805(PC) that the practice of illatom affiliation is frequently followed even when the family, into which the son-in-law had been taken, has a natural son living.

Doctrine of Relation Back

Doctrine of Relation Back

It is the doctrine against the principle of ‘inheritance once vested cannot be divested’

In the old Hindu law, if a Mitakshara Hindu adopted a son during his lifetime, such adoption is valid from the date of his adoption.

Suppose such adoption was taken by the widow of the Mitakshara husband, it takes effect from the date of death of her husband, which relates back to the earlier date.

This principle was on the logical basis that they cannot prejudice by partitioning the rights of the after-born male member whether the birth is natural or legal.

The new arrival (either by after-born or by legal adoption) can obtain a reopening of the partition and thereby get his share.

The Supreme Court has laid down that the fiction that an ‘adoption’ relates back to the date of death of the adoptive father applies only when the claim of the adoptive son relates to estate of the adoptive father.

But where the succession to the property of a person other than the adoptive father is involved, the principle applicable is not the rule of relation back but the rule, that inheritance once vested cannot be divested.

NOW:

After passing of the Hindu Adoption and Maintenance Act 1956 this doctrine of ‘Relation Back’ was abolished.

The Sec.12 of the Hindu Adoption and Maintenance Act 1956:

Sec.12: Effect of adoption:

An adopted child shall be deemed to be the child of his or her adoptive father or mother for all purposes with effect from the date of the adoption and from such date all the ties of the child in the family of his or her birth shall be deemed to be severed and replaced by those created by the adoption in the adoptive family.

Ejusdem Generis

Ejusdem Generis:

It is a rule of interpretation which means that 'where general words follow specific words.'

General words should be given their natural meaning like an ordinary word; but when a general word follows a specific word or words, the general word may be given a particular meaning of that same category of the specific word.

The legislature intended general words to be used in unrestricted sense; there is no difficulty in interpreting that general word in the ordinary meaning.

Hence the rule of Ejusdem Generis must be applied cautiously, because it departs from the natural meaning if it follows the specific word of that category.

The words "any other purpose" means 'not all other purposes' but it means 'any similar purpose.'

The word 'or otherwise' means 'not whichever way' but 'in a similar way of the preceding words of the same kind.'

Eg. Get a licence for motor bus, motor car, motor cycle, motor van, or like that.

The word 'like that' means a similar vehicle, but it never try to mean a 'bullock-cart.'

Human Trafficking

Human Trafficking:

Traffic means 'deal or trade in something illegal.'

Human Trafficking means "organized criminal activity in which human beings are treated as possessions to be controlled and exploited (as by being forced into prostitution or involuntary labour).

Definition of 'human trafficking' as:

“the recruitment, transportation, transfer, harbouring or receipt of persons, by means of threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability or of the giving or receiving of payments or benefits to achieve the consent of a person having control over another person, for the purpose of exploitation. Exploitation shall include, at a minimum, the exploitation of the prostitution of others or other forms of sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;”

Human Trafficking:

Human trafficking is the trade in humans, most commonly for the purpose of sexual slavery, forced labor or commercial sexual exploitation for the trafficker or others; or for the extraction of organs or tissues, including surrogacy and ova removal; or for providing a spouse in the context of forced marriage.

News by American Red Cross:

27 million people a year are affected by human trafficking and contemporary forms of slavery.

While human trafficking takes on many forms, from forced labor and domestic servitude, to child soldiers, prostitution and the illicit drug trade, the problem is global and one of the most urgent transnational issues we face today. (News by American Red Cross)

The Indian Govt passed the penal law of 'The Immoral Trafficking Prevention Act (ITPA).'

Apart from that the IPC sec.366-A and 372 prohibiting kidnapping and selling minors into prostitution respectively.

Trafficking is an offence in IPC. Now, the new law on ‘Trafficking for labour’ has been replaced with a new definition of ‘trafficking for physical exploitation.’

In India:

Trafficking is steadily rising despite the law of the Immoral Traffic (Prevention) Act 1956.

A report in 1996: 'there were 2.3 million women in prostitution in India, a quarter of whom were minors.' Sexual slavery is rapidly decreasing. Children are mainly trafficked for the purpose of commercial sexual exploitation.

Appointment of Judges to higher Judiciary

Appointment of HC/SC Judges in India:

A Judge of the Supreme Court shall be appointed by the President by the warrant under his hand and seal after consultation with which such Judges of the Supreme Court and of the High Court in the State as the President may deem necessary for the purpose and shall hold office until he attains the age of 65 years. (Article 124 of the Constitution). (Now a new law is proposed).

Similarly, a Judge of the High Court shall be appointed by the President by the warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and in case of an appointment of the Judge other than the Chief Justice, the Chief Justice of the High Court and shall hold office except in the case of an additional judge till he attains the age of 62 years. (Article 217 of the Constitution).

The only mode of removal of a Judge from his office, by impeachment, on the ground on the ground of proved misbehaviour or incapacity is laid down in Article 124 (4) and (5) of the Constitution. The Judges (Inquiry) Act, 1968 has been enacted by Parliament to regulate the procedure for the investigation and proof of the misbehaviour or incapacity of a Judge of the Supreme Court under Article 124.

In United States’ Constitution:

Under Article II, Sec.4 of US Constitution, the President, VicePresident and all civil officers of the United States can be removed from the office on impeachment for, and conviction of, 'Treason, Bribery or other high Crimes and misdemeanours.'

Since President of US who is the, highest executive authority of the State, an impeachment has been provided for an in fact, President Johnson was impeached in 1867 for high crimes and misdeaeanours.

In 1917, Justice Archibald of the Commerce Court was removed from office by impeachment for soliciting for himself and others, favours from railroad companies.

In England:

In England, offices held during good behaviour may in the event of misconduct be determined by impeachment. In practice, an address to the Crown for the removal of a judge must originate in the House of Commons. The procedure is judicial and the judge is entitled to be heard. (There is no instance of the removal of judge by this method.)

(A person holding his office ‘during his good behaviour’ instead of 'at pleasure.')

“Be you ever so high, the law is above you.”

“Be you ever so high, the law is above you.”

Judges should be of stern stuff and tough fibre, unbending before power, economic or political, and they must uphold the core principle of the rule of law which says "Be you ever so high, the law is above you."

This is the principle of independence of the judiciary which is vital for the establishment of real participatory democracy, maintenance of the rule of law as a dynamic concept and delivery of social justice to the vulnerable sections of the community.

It is this principle of independence of the judiciary which we must keep in mind while interpreting the relevant provisions of the Constitution.

Independence of Judiciary

Independence of Judiciary:

The concept of independence of judiciary is a noble concept which inspires the Constitutional Scheme and constitute the foundation on which rests the edifice of our democratic polity. 

If there is one principle which runs through the entire fabric of the Constitution, it is the principle of the rule of law and under the Constitution, it is the judiciary which is entrusted with the task of keeping every organ of the State within the limits of the law and thereby making the rule of law meaningful and effective.

The judiciary stands between the citizen and the State as a bulwark against executive excesses and misuse or abuse or power by the executive and there it is absolutely essential that the judiciary must be free from executive pressure or influence and this has been secured by the Constitution makers by making elaborate provisions in the Constitution to which detailed reference has been made in the judgments in Sankalchand Sheth's case, reported AIR 1977 SC 2326.

Document executed by Illieterate, dumb person

Document executed by an illiterate, dumb person:

Sec.59 of the Registration Rules (under the Registration Act):

“A document executed by a person who is unable to read shall be read out and, if necessary explained to him.

A document written in a language not understood by the executing party shall, in like manner, be interpreted to him.

When a party to be examined is dumb, recourse must be had to the means by which he makes himself understood.”

Property Transfers to be in Writing

Certain Transfer of immovable property requires writing:

Transfer of Property Act does not compel any particular transaction should be ‘in writing.’ (i.e. such transfer should be compulsorily written in a deed).

But the Registration Act prescribes which documents are to be in writing and which are not necessarily to be in writing.

Certain provisions of the Transfer of Property Act require that a particular transfer should not only to be in writing but also to be registered.

Under the Transfer of Property Act the following transfers should be in writing and should also be registered:

1.       Sales of immovable property of the value of Rs.100/- and upwards. (sec.54)

2.       Mortgages of immovable property. (sec.59)

3.       Leases of immovable property, for a term exceeding one year. (sec.107)

4.       Exchange of immovable property, of the value of Rs.100/- and upwards. (sec.118)

5.       Gift of immovable property (sec.123)

6.       As per Indian Contract Act, any contract made without consideration, on account of love and affection, is required to be in writing. (sec.25 of the Contract Act).

7.       A partition of joint family property is not a transfer; hence it does not require any writing.

8.       A family arrangement does not require any writing. (there is no transfer of immovable property, but a mere extinguishment of rights, interest in the immovable property.)

9.       A grant of immovable property to enjoy the usufruct (not the corpus of it) need not be in writing.

Property in the name of the God

Transfer of a property to the God or the Deity:

The Transfer of Property Act (in India) contemplates ‘transfer of a property is only by a living person to another living person.’

The Transfer of Property Act does not stipulate any such transfer of property to any Deity or God or Almighty; because the God is not a sentient person like that of a human being.

But such transfers are also recognized in India; and the God, the Deity are treated as human being;

Thus the Deity, the God, the Almighty can have/hold a property of His own, like that of a living person. In such transfers the God is termed as ‘juridical person.’

There are various types of transfers or giving the property to a Deity, a God, a Temple etc.

If a property is given to a Trust by a deed of trust, the God is the beneficiary, and in such cases, the God is not a legal owner but a beneficiary of that trust.

If a property is given to the God directly, (dedication to the idol itself) then the God becomes the absolute owner; and on behalf of the God, the Dharmakartha acts as His manager.

Under Mohammedan Law, such dedication of property to the God Almighty, is called as Wakf. In such circumstances, the God Almighty is the owner of the property and the general public are the beneficiaries of the Wakf.

Feeding the Estoppel

Feeding the Estoppel:

The Transfer of Property Act in India does not prohibit the transfer of non-existent property (or) Transfer of future property.

Non-existent does not refer ‘the property which is not at all in existence.’

Non-existent means ‘the property which exists, but to which the transferor has no present right.’

Transferring the ‘present right’ in the present property is called ‘legal estate.’

Transferring the ‘non-existent right’ in the present property is called ‘equitable estate.’

If there is conveyance (sale) of any non-existent property (or future property), such transfer does not convey title by itself, but it may operate as an agreement to convey it and it is actually conveyed as soon as it is acquired by the transferor. It is called an equitable estate.

According to this principle (equitable principle) that original conveyance deed (sale deed) itself becomes operative immediately the property is acquired by the transferor automatically, without any further deed to ratify the earlier conveyance.

This equitable principle is also known as “feeding the estoppel.”

According to this principle of feeding the estoppel, there is no fresh conveyance (sale deed) is necessary from the transferor to the transferee. (Sec.43 of the Transfer of Property Act 1882)

Fraudulent Transfers

Fraudulent Transfer

(Sec.53 of the Transfer of Property Act 1882)

 “The transfer of immovable property made with intent to defeat the creditors of the transferor shall be voidable at the option of such creditor.”

But the transfer made in good faith and for consideration does not affect.

The voluntary settlement, however free from fraud, is, by the operation of the statute deemed fraudulent and void against the subsequent purchaser for a valuable consideration.

‘A voluntary conveyance, if made bona fide and without any fraudulent intent and for valid consideration, should not be deemed fraudulent.’

Fraudulent transfer is Voidable and not Void:

If a debtor transfers his immovable property with an intention to defraud his creditors, such transfer is a ‘voidable one at the option of the creditor’ and ‘not void.’ That means such transfer is good and operative. The creditor may set it aside on equitable grounds.

(Void means fictitious or void deed which is void ab initio (from the beginning itself) and it is inoperative. Hence it does not require to be set aside.

Limitation to set aside such fraudulent transfer:

The creditor can file a suit against the fraudulent transfer which is governed by Article 113 of the Limitation Act 1963 i.e. 3 years from the date of such fraudulent transfer.

Compulsorily Registrable Documents

Documents which are compulsorily registrable:

(under the Indian Registration Act 1908)

The Registration Act stipulates that certain documents shall be compulsorily registarable;

If such document is not registered it is not valid in law as per sec.49 of the Registration Act 1908, i.e. it cannot be produced before any authority as evidence.

The following documents are compulsorily registrable:

(a)    Gift deed of immovable property;

(b)   Non-testamentary document which creates, declares, assigns, limits or extinguish any right, title or interest in immovable property; (eg. Sale, mortgage, settlement, release, lease, etc.)

(c)    Non-testamentary document which acknowledge the receipt or payment of money on account of creation, declaration, assignment .. such right, title or interest in immovable property; (eg. Receipt deed);

(d)   Yearly Lease deed in respect of immovable property, for a term exceeding one year;

(e)   Non-testamentary instruments transferring or assigning any decree or award which creates, assign, limit or extinguish any right, title or interest in immovable property;

(f)     Building Agreement relating to construction of multiunit house building;

The following documents are NOT compulsorily registrable: (optional registration):

1.       Any document relating to Shares in a Joint Stock Company;

2.       Any Debenture issued by a Joint Stock Company;

3.       Any document of immovable property of a value of Rs.100/- and below;

4.       Any Court Decree/Order (except a decree relating to immovable property);

5.       Any Grant of immovable property granted by the Govt.

6.       Any Partition made by the Revenue Officer;

7.       Any Loan instrument under Land Improvement Act 1871, under the Agriculturists Loans Act 1884;

8.       Any Order made under the Charitable Endowments Act 1890;

9.       Any ‘endorsement’ made on a mortgage deed acknowledging the payment;

10.   Any CERTIFICATE OF SALE granted to the purchaser of any property sold by Public Auction by a CIVIL COURT.

.

Patta Pass Book for Agri. land

Patta Pass Book Act of Tamil Nadu

The Tamil Nadu Patta Pass Book Act 1983

(Received the assent of the President on 24^th January 1986)

Land means (as per this Act) ‘agricultural land, including horticultural land, forest land, garden land and plantations (it does not include house-sites).

Every document relating to transfer of any ‘land’ by sale, gift, mortgage, exchange, settlement or otherwise shall be produced before the Registering Authority along with the Pass Book relating to that land.

The Tahsildar concerned shall cause the necessary changes in the register of Patta Pass Book maintained by him.

The Tamil Nadu Patta Pass Book Rules 1987

The Patta Pass Book, under this Act, shall indicate the name of the ‘registered tenant’ as per the Tamil Nadu Agricultural Land Record of Tenancy Rights Act 1969.

The Tahsildar shall carry out necessary changes in the register of Patta Pass Book maintained by him within fifteen days of receipt of entries of transfer from the Registering Authority.

Will

WILL (a Testamentary document)

Will means ‘the legal declaration of the intention of a testator’ with respect to his property, which he desire to be carried into effect after his death.

Codicil means ‘an instrument made in relation to a will and explaining, altering or adding to its disposition, and shall be deemed to form part of the will.’

Testator is one who makes his will.

Every person of sound mind (not being a minor) may dispose of his property by will.

Persons who are deaf or dumb or blind are also can make a will if they are able to know that they do by it.

An insane may make his will during the interval in which he is of sound mind.

An intoxicated person cannot make his will that he does not know what he is doing.

Unprivileged Will: Every person (except a soldier, mariner or an airman who engaged in actual warfare) may execute his will, which is called ‘unprivileged will.’

Privileged Will: The Will of Soldier etc., who engaged in actual warfare, is called as ‘Privileged Will’ which gives some exceptions in the formalities of making from a regular unprivileged will.

Executor means a person to whom the execution of the last will of a deceased person is, by testator’s appointment. (Executor’s duty is to fulfill the wishes of maker (i.e. testator) of that will  after his death.)

Probate means the copy of a will certified under the seal of a Court of Competent Jurisdiction with a grant of administration to the estate of the testator.

Administrator means a person appointed by the Competent Court to administer the estate of the deceased person, when there is no executor appointed in the will.

A Hindu can make his/her will.

An Indian Christian can make his/her will.

(Indian Christian means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.)

A Mohammedan cannot make a will of his entire property, but can do so in respect of his one-third share property with consent of his sharers.

Left Thumb Impression (LTI)

Literate or Illiterate, put your thumb on a document presented for registration:

In every document presented for registration, whether such person can write his name or not, the impression of the bulb of his left thumb both in the register maintained by the Registrar and as well as the document itself.

1.       If the left thumb does not give a clear impression (or non-existent of left thumb), the impression of any finger of the left hand shall be obtained.

2.       If there is no left fingers, the impression of right thumb or if that also is non-existent, of any finger of the right hand shall be taken.

3.   Thumb impression shall be dispensed with in the case of a person suffering from leprosy or contagious disease.