Category: Legal

Immovable property, profit a prendre and doctrine of fixtures

November 18, 2024 toahostinger No Comments

Section 3 Interpretation Clause Immovable Property Immovable Property Stating simply Immovable property means the property which can not be moved from one place to another. According to Section 3 of the Transfer of Property Act “immovable property” does not include standing timber, growing crops or grass. The definition of the term “immovable property” in this section is a negative definition. It is not a comprehensive, and exhaustive definition. It merely excludes standing timber, growing crops or grass. The positive definition of immovable property has been given in section 3(26) of General Clauses Act, 1897. According to this section immovable property includes land, benefits to arise out of land and things attached to the earth, or permanently fastened to anything attached to the earth. The definition given under the General Clauses Act, 1897 applies to the Transfer of Property Act, 1882 also (Babulal v Bhawani, 1912). Thus, the definition of immovable property given in Section 3 of The Transfer of Property Act, 1882 and under the General Clauses Act, 1897 both explain the definition of immovable property that immovable property includes the following elements: Land Benefits to arise out of land and Things attached to the earth: (a) things embedded in the earth; (b) things attached to what is so embedded in the earth; (c) things rooted to the earth except:- (i) standing timber, (ii) growing crops, or (ii) growing grasses Land. Land means surface of the land, and what is below, upon and under the surface of the land. The soil, mud, water, pond and river are also the part and parcel of the land. Sub-soil of the land, minerals, coals and gold mines are immovable property. The space which are above the surface of the land is also immovable property because of the fact that space starts just above the surface of the land. Benefits to arise out. of land-The benefits to arise out of land are immovable property. Any right exercise by a person on a piece of land and gets certain profit that is his intangible-immovable property. The right to way on a land or right to use a land under lease or tenancy is Immovable property. The right of a tenant to live in the house of land-lord and right to catch the fish from the pond or river are also an immovable property. The rights of ferry on river or lake waters by boats or steamers are immovable property as water of river or lakes are benefits to arise out of land and thus immovable property. Likewise right to extract coal or gold from the mines are immovable property. Profit à prendre Profit à prendre is a legal right that allows an individual to enter another person’s land and take some part of the land’s natural produce or resources. This could include things like minerals, timber, or even fish. Essentially, it is a right to extract and remove something from the land. For example, if someone has a profit à prendre to fish in a lake on someone else’s property, they have the right to enter the land, fish, and take the fish away. This right can be granted through an agreement or can be acquired by prescription (long-term use). A right to enter upon the land of another and carry a part of the produce is an instance of profits a pendre ie. benefit arising out of land, and therefore a grant in immovable property.(SHANTA BAI V STATE OF BOMBAY 1958 SC) Ananda Behera v State of Orissa 1956 SC Case Summary: Context: Petitioners obtained oral licenses from the Raja of Parikud to catch and appropriate fish from Chilka Lake, paying significant sums and receiving receipts. This occurred before the Orissa Estates Abolition Act of 1951, which transferred ownership of the estate to the State of Orissa. Issue: The licenses were for periods after the estate vested in the state. The State of Orissa refused to recognize these licenses and sought to reclaim the fishery rights. Petitioners’ Argument: They claimed their fundamental rights under Articles 19(1)(f) and 31(1) of the Constitution were infringed, arguing the transactions were sales of future goods (fish), not immovable property. Court’s Decision: The court held that the right acquired was a license to enter the land and catch fish (profit à prendre), which is considered immovable property under the Transfer of Property Act and the General Clauses Act. Since the sale of this right was valued over 100 rupees and was not in writing or registered, it violated Section 54 of the Transfer of Property Act, meaning no title or interest passed to the petitioners. Fundamental Rights: The court found no fundamental rights were infringed as the state did not confiscate or take possession of the contract but merely refused to recognize it, which could lead to a contractual dispute but not a constitutional one. 3.Things attached to earth. -According to Section 3 of the Transfer of Property Act, 1882 expression things attached to earth’ means (i) rooted in the earth, as in the case of trees and shrubs, (ii) embedded in the earth, as in the case of walls or buildings; or (iii) attached to what is so embedded for the permanent beneficial enjoyment of to which it is attached. Things rooted to the earth-Rooted in earth as in the case of trees and shrubs. The trees, plants shrubs and herbs are rooted in the earth firmly they are called immovable property. When they are cut down their position are changed and they come under the category of movable property. But according to Section 3 of the TPA as an exception to this general rule are standing timber, growing crops and grass are movable properties. (ii) Things embedded in the earth– As in the case of walls or buildings which are fixed in the earth and become part of the land. Electricity poles, houses, buildings, walls are immovable properties because they are things embedded in the earth. Where the things are just placed…

Interview, judiciary, Law, Legal, Property ACT

Transfer for benefit of unborn person sec. 13 TPA

November 18, 2024 toahostinger No Comments

Transfer for benefit of unborn person sec. 13 TPA Provisions regarding transfer of property for the benefit of unborn persons have been laid down in Section 13 of the Transfer of Property Act, 1882. Accordingly sec.13 reads as, “where on a transfer of property, an interest is created therein for the benefit of a person not in existence on date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.” Illustration A transfers property of which he is the owner to B, in trust for A and his intended wife successively for their lives and after the death of survivor for the eldest son of the intended marriage for life and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property. Transfer for the benefit of unborn person.– According to Section 5 of the Transfer of Property Act, 1882, the general rule is that property can be transferred from one living person to another. However, if someone wishes to transfer property to an unborn person, unborn is a person who is not in existence at the time of the transfer not even in the mother’s womb, such a transfer is also possible, subject to the conditions and methods provided in Section 13 of the Act.. A transfer cannot be made directly to an unborn person. Such a transfer can only be made by the machinery of trusts. For the benefit of the trustees being the transferee who held the property for the benefit of the unborn person. Hence, it is clear that a property, cannot be transferred to an unborn person directly. Such transfer can be made by the machinery of trust. Procedure of Transfer to an unborn As per section 13 of the Act, for a transfer of benefit of unborn; (i) a life estate has to be created in favour of living person or persons and, (ii) an absolute interest must be transferred in favour of the unborn. The person in whose favour a life estate has been created shall possess and enjoy it till the time he/she is alive. If during such person’s life time the person in whose favour an absolute interest has been created (i.e. the unborn) is born, the title in the property shall immediately vest in him/her even though he/she would get possession of the property only upon the death of life holder. If the unborn is not born during the life time of the life holder, the property shall be enjoyed by the life holder during his life time after which it would revert back to the transferor or his heirs as the case maybe. Example In a case where A transfers his property in 1960 to B for life and then to C for life and finally to C’s son S, who is unborn at this time. Both B and C are alive at this time the property would be first possessed by B for his life and then by C. And after C the property shall be transferred absolutely to the S, who must be in existence at or before the death of the C. S is born in 1970. At this time, he takes a vested interest in the property but the possession of it is postponed till the death of C (which say for instance took place in 1975) If S died in 1974, then because he had a vested interest in the property since 1970 i.e. when he was born, the property would after the death of C go to the heirs of S. But if S was not born till 1975 (i.e. when the last life estate in favour of C ended) then the property would revert back to A or his heirs as the case maybe. Thus it is important for a valid transfer under section 13, for an absolute interest to be created in favour of unborn (i.e. a life estate cannot be made in favour of unborn) and for the unborn to come into existence before the life estate created in favour of someone else comes to an end. According to Section 13 a property can be transferred for the benefit of an unborn person subject to the following conditions: Prior interest: Transfer for the unborn person must be preceded by a life interest in favour of a person in existence at the date of the transfer. The property which is to be transferred must vest in some person between the date of the transfer and coming into existence of the unborn person. The interest of the unborn person must, therefore, be in every case preceded by a prior interest and before termination of prior preceding interest, the unborn person must come in existence otherwise it would not vest in the unborn person. 2. Only absolute interest may be transferred in favour of the unborn person. It means property can not be transferred to an unborn with life interest or without power of alienation. We have the following propositions: (i) the intermediary person living at the time of the transfer is to be given only life interest. It means giving him only the right of enjoyment and possession. He has to preserve the property like a trustee during the life.time on behalf of the unborn person. (ii) The unborn must come into existence before the death of the.person holding property for the life. After the death of last living person in other words after the termination of the preceding interest the unborn person comes into existence, he cannot succeed to get the property. Because of the fact after termination of life interest, the property cannot remain in abeyance.and cannot wait…

Interview, judiciary, Law, Legal, Property ACT

Section 4 of The Limitation Act, 1963

November 11, 2024November 11, 2024 toahostinger No Comments

Section 4 of the Limitation Act, 1963 addresses the situation when the prescribed period for any legal action expires on a day when the court is closed. This section provides a safeguard to ensure that the right to institute a legal action is not unfairly curtailed due to court holidays or closures. It is to be kept in mind that since Section 4 is an exception, it will not increase the prescribed period (PP). It is just an exception to Section 3. Text of Section 4: “Expiry of prescribed period when court is closed: Where the prescribed period for any suit, appeal, or application expires on a day when the court is closed, the suit, appeal, or application may be instituted, preferred, or made on the day when the court reopens. Explanation: A court shall be deemed to be closed on any day if during any part of its normal working hours it remains closed on that day.” Key Points: Prescribed Period: The term “prescribed period” refers to the time limit set by the Limitation Act for initiating a legal action. These periods vary depending on the nature of the suit, appeal, or application. Court Closure: This section applies when the last day of the limitation period falls on a day when the court is closed. This closure can be due to weekends, public holidays, or any other reason that leads to the court being non-operational during its normal working hours. Extension to the Next Working Day: If the last day of the limitation period is a day when the court is closed, Section 4 allows the action to be initiated on the next day when the court reopens. This provision ensures that parties are not deprived of their right to legal recourse simply because the court was closed on the last day of the limitation period. Explanation Clause: The explanation to Section 4 clarifies that a court is considered closed if it remains closed for any part of its normal working hours on a given day. This means that even if the court is open for a brief period but is closed for the majority of its working hours, it is still deemed to be closed. Practical Implications: Fairness and Justice: This provision aims to ensure fairness and justice by accommodating the practical realities of court closures. It prevents the limitation period from expiring on a day when it is impossible to take legal action. Legal Strategy: Lawyers and litigants must be aware of this provision as it can be crucial in planning the timing of filing suits, appeals, or applications. It provides a cushion period to ensure that their actions are not dismissed on technical grounds of being time-barred. Administrative Ease: It simplifies the administrative process by providing a clear rule for handling cases where the limitation period ends on a day the court is closed, thus avoiding confusion and potential disputes over filing deadlines. Examples: If the last day to file an appeal is on a Sunday (a non-working day for courts), under Section 4, the appeal can be filed on the following Monday when the court reopens. If a public holiday falls on the last day of the limitation period, the legal action can be initiated on the next working day immediately after the holiday. Conclusion: Section 4 of the Limitation Act is a crucial provision that ensures the right to legal action is preserved despite court closures. It reflects the principle that procedural technicalities should not impede access to justice. By allowing the initiation of legal proceedings on the next working day after a court closure, it provides a practical solution to a common issue, thereby promoting fairness and equity in the legal process.

judiciary, Law, Legal

Ratio decidendi and Obiter dicta

October 13, 2024 toahostinger No Comments

Ratio decidendi and Obiter dicta Ratio decidendi Ratio decidendi is a Latin term that means “the reason for the decision.” It refers to the legal principle or rule that is the basis for a court’s decision in a case. This principle is what future courts will follow when deciding similar cases. These are binding on future cases. Ratio Decidendi Example The ratio decidendi of the Kesavananda Bharati v State of Kerala 1973 SC case is the establishment of the basic structure doctrine. The Supreme Court held that while the Parliament has wide powers to amend the Constitution under Article 368, it does not have the power to alter or destroy the basic structure or framework of the Constitution. This principle is binding and has been followed in numerous subsequent cases. For example in Indira Nehru Gandhi v. Raj Narain, 1975 SC Context: This case challenged the election of Prime Minister Indira Gandhi. Application: The Supreme Court applied the basic structure doctrine to strike down the 39th Amendment, which sought to place the election of the Prime Minister beyond judicial review. The court held that judicial review is part of the basic structure of the Constitution. Obiter dicta Obiter dicta is a Latin term that means “things said by the way.” In simple terms, it refers to comments or observations made by a judge in a court’s decision that are not essential to the outcome of the case. These remarks are not binding in future cases but can be persuasive. Obiter Dicta Example In Kesavananda Bharati v State of Kerala 1973 SC judges observed that while the Constitution must be flexible to adapt to changing times, this flexibility should not extend to altering its basic structure. They emphasized the need for a balance between allowing amendments and preserving the core principles of the Constitution. Besides this court also discussed about the concept of secularism, and discussed about preamble, fundamental rights in this case. Judges also commented on the role of the judiciary in safeguarding the Constitution. These discussions and observations of the court was not essential for the outcome of the case, hence it was an obiter dicta.

Indian Constitution, Interview, judiciary, Law, Legal

Mehr (Dower) Muslim Law

October 2, 2024October 2, 2024 toahostinger No Comments

Mehr (Dower) Definition, Nature and Importance of Dower (Mahr) “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” Mulla. According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.” Further, In Saburannessa v. Sabdur Sheikh, [(1934) Justice Mitter remarked: The marriage under Muslim law is a civil contract and it is like a contract of sale. But the notion of dower given above is not correct. Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.” Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.’ Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence, p. 334). Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.” Further unlike sale, dower is not given to anyone except to the women herself. Object of Dower The object of dower is three-fold: to impose an obligation on the husband as a mark of respect of the wife; to place a check on the capricious use of divorce on the part of husband; and to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce. Subject matter of dower A handful of dates (Abu Daud). A pair of shoes (Tirmizi). If the husband is a slave, his services to his wife (Mohit Sarkhsee). The services of the husband’s slaves to the wife (Fatawa-i-Alamgiri). Husband’s services rendered to the guardian of a minor wife (Durrul Muktar). Teaching Koran to the wife (Tradition). In fact, the main contention of the Muslim jurists is that anything which comes within the definition of property can be the subject-matter of dower. Minimum and Maximum Amounts of dower Minimum – Hanafis 10 dirhams Malikis – 3 dirhams. Shafiis No minimum. Shias. No minimum. Maximum amount can be any amount without any upper limit. Among some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Amounts of dower and conditions of payment. If the marriage is consummated, and is dissolved by death: (a) whole of the specified dower or in case of regular marriage. (b) proper dower if unspecified, (c) specified or proper dower, which is less, in the case of irregular marriage. if the marriage is not consummated, and is dissolved by the act of party. (i) When divorced by the husband– (a) half of the specified dower, or (b) a present of three articles, if unspecified – in case of regular marriage (ii) When divorced by the wife: No dower, (iii) If the marriage is irregular: No dower Kinds of dower Broadly, there are two kinds of dower: specified (Mahr i Musamma) and unspecified (proper or Mahr i Misl). The specified dower has been further divided into: (a) Prompt (Mahr Muajjal) and (b) Deferred (Mahr e Muwajjal) (i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable. Prompt and Deferred dower.-Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded. In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower. Unspecified dower.-In such cases where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualifications. Help would be taken by taking into account the amounts of dower fixed in case of wife’s sisters, paternal aunts, etc., and according to the Hedaya, the wife’s age, beauty, intellect and virtue will also be considered. Such dowers are called mahr-ul-misl. One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it. Remedies in case of non-payment of Dower The rights which dower confers on the wife are threefold : Refusal to cohabit. Right to dower as a debt. Retention of husband’s property. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife…

Read More “Mehr (Dower) Muslim Law” »

Human Rights, judiciary, Law, Legal, Uncategorized

Assault and Battery

December 12, 2023August 19, 2024 toahostinger No Comments

Assault and Battery This article discusses assault and Battery, which fall under the category of torts. A tort is defined as a wrongdoing or an infringement of a right that results in legal obligation and is not covered by a contract. False incarceration is also a crime, as stated in “public nuisance is a crime as well as a tort”). The number of assault and Battery cases is rising daily. Introduction Assault and Battery fall under the tort, which is a civil violation classified as an intentional tort. The purposeful violation of another’s legally protected rights is referred to as an intentional tort. we could define assault as any action on the part of the defendant that immediately makes the plaintiff fear coming into contact with him. As a result, assault is committed when the defendant gives the plaintiff reason to believe that he will commit Battery against him through his actions. Typical assaults When someone points a pistol at someone else and threatens to shoot them, even if the victim later discovers the gun was not loaded or even real. The following are some characteristics of an assault: The act was meant to arouse fear of harmful or offensive contact. The act did arouse reasonable fear of such contact in the victim. A bodily threat gesture that is about to be made. A civil wrong known as Battery is defined as the willful and direct use of physical force against another person’s person or as the unlawful use of force against another person or their property, resulting in bodily harm or offensive contact. Battery attempts are considered assaults. An intentional tort is a Battery. Example Battery occurs when someone purposefully makes contact with another person that is harmful or objectionable. However, the Plaintiff is not liable if they granted explicit assent to the crime or inferred consent by taking part in a certain activity or circumstance (such as playing sports with the defendant).[i] Historical Background of Assault and Battery Modern tort law recognises certain “intentional torts,” or legal claims that can only be made when the defendant acted with the intent to harm the plaintiff or with a high degree of certainty that the plaintiff would be harmed. Several “classic” intentional torts, recognised as grounds of action for centuries, such as assault, Battery, false imprisonment, trespass to chattels, and trespass to real property, are examples of current intentional torts. Newer causes of action such as deliberate infliction of emotional distress, intentional interference with contracts, and intentional interference with prospective advantage are included in modern intentional torts. [ii] But there was no such thing as an “intentional tort” in tort law before the latter part of the nineteenth century. The actions for the “classic” intentional torts mentioned here were typically brought in trespass cases, which did not call for an intentional injury claim.2 The more recent intentional torts received very little recognition. Types of Domestic Assault and Battery Misdemeanor[iii] Domestic assault and Battery, defined as the purposeful and unlawful attempt, offer, and subsequent use of violence against a person with whom the offender currently has or formerly had a close, intimate relationship, constitutes the first offence. First-time domestic assault and Battery with a minor present – The same as above, but with a minor child in attendance at the time of the alleged event. First-time Domestic Battery and Assault of a Pregnant Woman is the same as Domestic Battery and Assault, but the alleged offence is committed with the knowledge that the victim is expecting a child. FELONY[iv] Domestic assault and Battery on a second or subsequent offence is the same as domestic assault and Battery on a first offence. It makes no difference if the “victim” is a different person or how minor the purported “injury” may be. Domestic assault and Battery in the presence of a minor on a second or subsequent occasion is the same as domestic assault and Battery on a first occasion in the presence of a minor. Additionally, exactly with the 2nd Offence Domestic Assault and Battery, the victim’s identity, the child involved, and the severity of the injuries is irrelevant. The second offence of domestic assault and Battery on a pregnant woman is the same as the first offence, with the exception that this is the second or subsequent offence. It should be highlighted that similar to the other charges, it is irrelevant whether or not the alleged victim is the same, whether or not the victim is pregnant, or how severe the injury is. It should be mentioned that the severity of the punishment is GREATLY raised IF the unborn child is hurt or the claimed mistreatment results in a miscarriage. Domestic Battery and strangulation assault[v] With the exception that the claimed crime involves some sort of strangulation, this is the same as domestic assault and Battery. The legal definition of strangulation in Oklahoma is as follows: “Strangulation means any kind of asphyxia, including but not limited to, closure of the (blood vessels)/(air passages)/nostrils/mouth as a result of external pressure on the head/neck.” It should be noted that even “attempted” strangulation can result in the filing of a criminal charge in addition to strangulation, which results in an automatic felony charge. Domestic Assault and Battery Causing Great Bodily Injury[vi] Domestic assault and Battery are involved here, however, the severity of the alleged victim’s injuries is taken into account. Great bodily injury, according to Oklahoman courts, is defined as any bone fracture OR any prolonged and evident disfigurement OR any prolonged (lengthy period) loss/impairment of function of a body part/organ OR that created a significant risk of death for the accused victim. Domestic Assault and Battery With Deadly Weapon[vii] Except that a legal “deadly” instrument or weapon was used in this domestic assault and Battery. You’ll see that four sorts of domestic assault and Battery fall under the misdemeanour category. We refer to these as predicate offences. No matter how serious the allegation or injury, if you ever enter a plea to one…

Rights And Duties Of Partners

November 29, 2023 toahostinger No Comments

Rights And Duties Of Partners The basic aim of this research article is to understand the rights and duties of partners in a partnership business and to know the laws through which they are governed and related statutes as well. Now it becomes crucial to first understand the concept of partnership to understand the obligations and rights of a partner. [A partnership is a relationship between the persons who have agreed to share the profits and losses of a business carried on by all the partners or any of them acting for all]1. Introduction : A partnership is one of how business can be carried out where two or more persons join together to create and run the partnership business. The persons who have entered into a partnership with one another are called individually ‘partners’ and collectively a ‘firm’. The law relating to partnership in India is contained in the Indian partnership act, 1932 which is concerned partly with the rights and duties of partners between themselves and partly. A partnership company usually has an agreement that includes each partner’s duties and rights however, in the absence of a contract there are laws that the partners need to follow to be legally correct. Another fundamental of a partnership is that partners’ relationships with one another must be in the utmost good faith. Section 4, Indian Partnership Act, 1932 Background : The Indian Partnership Act 1932 was passed by the legislation and received its assent on 8th April 1932 and came into force on 1st October 1932. The principles of the partnership were first contained in chapter 11 (sections 239 to 266) of the Indian Contract Act, of 1872. With the development of the economy, trade, and commerce in India it was felt that these sections were not sufficient and hence a need for a separate partnership act was felt. Thus, the Indian Partnership Act came up and sections under the Indian Contract Act containing partnership laws were repealed. the present partnership act is based on the English Partnership Act, 1890 with required modifications. Besides the Indian Partnership Act 1932 partnership laws in India are also governed by the Limited Liability Partnership Act,2008 which is concerned with limited liability partnerships. In an LLP the partners have limited liability. There is no overlapping between the provisions of these two statutes. The Limited Liability Act allows Indian businesses to combine professional expertise with new ideas and entrepreneurial initiatives and renders support for them to operate efficiently and innovatively. An LLP allows its members to undertake limited liabilities while structuring their company as a partnership. Rights and duties of partners : Partners can determine their mutual rights and duties by a contract called a partnership deed which deals with aspects of general administration such as, which partner will do what work, and what will be their share in profits, it may be made or varied by express or implied consent of all the partners. section 11 provides that subject to the provisions of the Indian Partnership Act, partners can use this agreement to prohibit each other from carrying on any business other than that of the firm. Now let us look at the duties and rights of partners as per this Act – Duties of partners : Duty to act honestly and render true accounts (section 9) – partners are bound to carry on the business of the firm to the greatest mutual profits and to be true and faithful to each other. The partners must try to ensure that the business makes the most revenue possible. partners also must render true accounts and full information of all things which may affect the firm, to any partner or his heir or legal representative. Duty to indemnify for the loss caused by fraud (section 10) – if a partner’s action leads to a loss to the company’s performance, then they must reimburse their partners for that loss. Duty to be diligent ( section 12 b) – A partner is required by section 12 (b) to fulfill their responsibilities diligently. according to section 13(f), a person must hold the company harmless for any damages resulting from his wilful negligence. Proper use of the partnership firm’s property ( section 15) – Subject to the contract between the partners the property of the firm shall be held and used by the partners exclusively for the business. Duty not to compete (section 16) – If a partner derives any profits for himself from any transaction of the form or the use of the property or business connection of the firm or the firm name, he shall account for that profit and pay to the firm. Rights of the partners: Right to participate in the operation of the business (section 12 a ) – As a partnership firm is a corporation of the partners and their management abilities are typically coextensive, all the partners of a partnership business have the right to participate in the business conducted by the company. Right to consult ( section 12 c ) – When a disagreement of any kind emerges between partners in a company over commercial matters it will be settled by the majority opinion of the partners. Before a decision is taken every partner in the organization is entitled to voice their opinion, however, changes to the company’s business activities cannot be made without the approval of all the partners. Right to access the books (section 12) The partner has the authority to examine and if necessary, obtain a copy of the books of accounts however this right must only be appropriately used. Right to claim remuneration, profits, and interest on capital (section 13 a to 13 d) – A partner is not entitled to receive remuneration for taking part in the conduct of the business. A partner making, for business, any payment or advance beyond the amount of capital he has agreed to subscribe, is entitled to interest thereon at the rate of 6% per annum. Right to be indemnified (section 13…

Legal

Literal Rule of Interpretation of Statutes

November 10, 2023 toahostinger No Comments

Literal Rule of Interpretation of Statutes The knowledge of exact interpretation is based on the capability to study what is conveyed in plain language, reread the lines, scan ‘through’ the provision, catechize the intent of the Legislature, and vociferate against case laws and other aids to interpretation. This article concentrates on the guidelines to be kept in mind while applying it and the critique of this rule has been discussed in this article. Introduction The Latin term ‘interpretation’, out of which the term ‘interpretation’ is concluded, indicates conveying or simplifying especially the real significance of something. It is an imitation by which the court seeks to discover the true definition of the statute and decide the purpose of the legislature i.e. correct understanding of the law. The functions of Judges in interpreting statutes are twofold. First as per the exact meaning of what the legislature has said (express). Second is what the legislature intended to have said (intending). Interpretation is the main feature of a court and some elements that have been developed out of the continual activity by the court are known as rules of interpretation. These rules out ambiguity. When the words of statutes are unclosed to more than one interpretation, then the court will have to choose the purpose of the legislature which is used in approving a statute portraying the true purpose of the legislature and these elements are Literal Rule, Golden Rule, and Mischief Rule. Need for Interpretation of a Statute The purpose of the interpretation of statutes is to settle down the purpose of the legislature communicated specifically or implicitly in the language used. Interpretation is as old as language. Detailed interpretation regulations were improved even at a very primal stage of the Hindu society and culture. The significance of escaping literal interpretation was also exhausted in varied ancient textbooks-“Merely following the texts of the law, opinions are not to be untainted, for, if such decisions are deficient in equity, a gross failure of Dharma is caused.”[1] We can say, that the interpretation of statutes is needed for two basic reasons i.e. to realize: Legislative language- • Legislative language may be complex for a layman, and hence may need interpretation, and Legislative Intent- The intention of legislature or Legislative intent equates to two aspects: The concept of ‘meaning’, i.e. what the word means; and The concept of ‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ penetrates through the statute. The statute must be read as a whole in the context The statute must be construed to make it effective and workable The process of construction combines both the literal and purposive approaches. The purposive construction rule highlights that you should shift from literal construction when it leads to absurdity. Literal Rule of Interpretation This rule is also known as the grammatical rule of interpretation or the plain meaning rule. This rule states that the words used in the legal text are to be explained or understood in their natural or simple or dictionary meaning. • This rule is considered to be the most important and safest rule of interpretation. It is the first rule applied by the judges. It is only applied if the language or words of the legal statute are crystal clear and there is no confusion. The law has to be considered as it is and judges cannot go beyond ‘litera legis’ i.e. letter of law. The words of the statute are to be understood in their natural, ordinary, and popular sense. Rules to be followed in Literal Rule of Interpretation Ejusdem Generis The term “ejusdem generis” means “of the same kind”. According to this rule, if several enumerations belonging to the same genus are used in a provision, the meaning of the general word following them gets restricted to that genus only. If the law refers to cars, trucks, tractors, bikes, and other motor-powered vehicles, then it shall only include roadways and no other mode of transport. Regina v. Edmundson[2] In this case, Campbell set out the principle of interpretation known as ‘ ejusdem generis’. This rule provides that if there is a series of some particular words then the word following that series must be about that series. This helps judges to restrict the wide ambit of the general expression. Thus the requirements for the application of ejusdem generis are there must be the enumeration of specific words, the general term must follow a specific term, there must be no different intention of the legislature to the general term, the series of enumerations should constitute class or category and the category should not be exhausted. Evans v. Cross[3] In this case, the court had applied the ejusdem generis rule. Section 48(9) of the Road Traffic Act, of 1930 was in question. The definition of “traffic signals” under Section 48(9) of the Road Traffic Act, of 1930 includes all signals, warning signposts, signs, or other devices. Casus Omissus The term “casus omissus” means cases of omission. That means omission in a statute cannot be supplied by construction. The court can interpret the law but cannot legislate. S.P.Gupta v. President of India[4] In this case, the court held that when the language of a statute is clear and unambiguous there is no room for application of the doctrine of casus omissus. Jacob Mathew v. State of Punjab In this case, Section 304-A IPC was construed by applying casus omissus. This section provides that whoever causes the death of any person by doing any rash/negligent act not amounting to culpable homicide shall be punished with imprisonment of a maximum of 2 years or a fine or both. Here, the court supplied the word “gross” for rash and negligent acts. And the court said that there is no omission, it is just to make legislative intent much more clear. R v. Inhabitants of Sedgley In this case, the Poor Relief Act 1601 levied taxes on ‘lands, houses and coal mines’. There was an issue of whether the taxes could be levied on owners of…

Legal, Uncategorized

Mental Health

August 15, 2023 toahostinger No Comments

There is a good possibility that someone who is emotionally well will also be physically healthy. Just like with physical health, mental health needs to be taken care of. Mental health includes both mental sickness and mental well-being. It has an equal impact on all age groups — old, young, and children—as well as all socioeconomic statuses—low and high—in the areas of education, the economy, and society. Introduction of Mental Health Additionally, it causes serious illnesses like OCD, PTSD, disorders that result in mental illness, schizophrenia, psychological problems, and internal trauma. Major mood swings, loneliness, mugging up, insomnia, either sleeping a lot or having disturbed sleep cycles, changes in behaviour patterns, body aches, distance from family and friends and people they are close to, or thinking too much in which thoughts are leading to self-harm or suicidal thoughts are some of the symptoms we should look out for when they occur. Notable features People who experience these symptoms ought to treat themselves with kindness, respect, and value. Without considering the opinions of others, they should pursue their interests in dancing, singing, writing, travelling, gardening, and learning new things. Many individuals prevent themselves from engaging in their passions, which contributes to mental illness. They should surround themselves with people who are beneficial to their mental health and avoid toxic and negative people. They should avoid doing things they don’t want to do and focus on doing things that make them happy. Both medication and meditation should be used to promote mindfulness, well-being, and a quiet mind. Mental health laws are as vital as other laws; in fact, these laws are incredibly significant and play a massive influence on people’s lives. This also signifies societal obligation and welfare. Many human rights Organisations advocate for the protection of people suffering from mental illnesses. According to Article 1 of the Universal Declaration of Human Rights, which states that “all people are free and equal in rights and dignity,” “people with mental disabilities are protected by human rights law by virtue of their basic humanity.” Laws relating In India, there exist laws governing mental health Programmes, such as the establishment of a Central or State Mental Health Authority to regulate and supervise psychiatric hospitals or nursing homes and to advise the Central or State Governments on Mental Health Topics. The Mental Health Act, 1987; the Protection of Human Rights Act, 1993; the Persons with Disability Act, 1995; the National Trust Act, 1999; the Protection of Women from Domestic Violence Act, 2005; and the Protection of Children from Sexual Offences Act, 2012. Conclusion A person can be cured of mental disease and live happily and quietly in society with the assistance of them all; treatment, medications, meditation, supporting laws, and personal analysis of ailment, spirit to fight with it and win it. One must be aware that a good mind leads to a good life, and this includes excellent mental health. Written by Purnima Sharma

Legal

The Trial of The Chicago 7 | Through a Legal Lens

June 20, 2023 toahostinger No Comments

Introduction There are civil trials as well as criminal trials but in The Trial of the Chicago 7, viewers are shown that political trials are also a possibility. Aaron Sorkin’s film is based on a trial from 1969 and uses transcripts along with the flashbacks of political instability in Chicago in the summer of 1968. the film dramatizes President Nixon’s Justice Department’s controversial, prosecution of eight individuals convicted of criminal conspiracy and crossing state borders to incite a riot. The trial stretched on for over five months, sometimes devolving into turmoil and political spectacle, highlighting the growing rifts in a society torn apart by the Vietnam War, dramatic cultural shifts, and Nixon administration attempts to repress nonviolent anti-war dissent and protest. Daily headlines reflected the courtroom drama and histrionics. Protesters outside the courthouse chanted the iconic statement “The whole world is watching!” every day. Facts of The Trial of The Chicago 7 The fact that the trial of Chicago 7 was a political trial was quite evident by the approach of Judge Julius Hoffman who ruled over the proceedings in the case with a harsh rigidity contrasted by periods of forgetfulness. On the surface, it seemed as though Judge Hoffman had a pro-government bias, as shown by transcripts from the courtroom. Constricting or weakening the defence was Hoffman’s continual task. After a flood of criticism from the legal community led Hoffman to rescind the warrants, he was obliged to drop the charges against the four defence lawyers he issued on the first day of the trial. On trial, he refused to allow the jury to examine many pieces of evidence, including a paper in which Tom Hayden stated that the movement in Chicago should be nonviolent. Admonished lawyer William Kunstler for leaning on the podium, he walked out of court. His pronunciation of Leonard Weinglass’ name was a constant source of confusion, with him often mispronouncing his name as “Feinglass,” “Weinruss,” or “whatever your name is.” Charges In addition to this Seale was charged with conspiracy to instigate riots even though he was only in Chicago for a short time. Prosecutors used panthers in the case to their advantage, argues Sorkin. He was frequently denied the opportunity to speak in court by the judge and when he complained that his constitutional rights were being infringed upon, Hoffman lectured and chastised him.[1] As a matter of fact, the US attorney was hoping to intimidate the jury by bringing in a black as the defendant. One day in court, Seale yells, “I was thrown in to make the group look scarier,” Furthermore, In one of the most startling courtroom moments in American history. As a result of his refusal to comply with Judge Julius Hoffman’s contempt citations, Bobby Seale was gagged and chained to his chair on October 29, 1969. It was inferred that Seale’s ranting and shouting made Hoffman’s defence seem reasonable. Hoffman said, “I can’t blame him for raising his voice,”[2] if Richard Schultz was telling the truth. The imprisonment of Seale also illustrates how racially biased American courts were throughout the 1960s. a juror who was carrying a copy of James Baldwin’s “On the Road” was removed from the trial. Thus, it can be inferred from various such instances that law and politics are intrinsically connected. When all these instances were taking place, the supporters of the Chicago 7 filled the courtroom and were more than willing to provide their own opinions. [3] There is a lot of incredibility in the court records, such as when the judge refused to let Bobby Seale’s birthday cake into the courtroom. Trial This trial was unlike any other trial Hoffman has presided over because of the level of attachment shown in the courtroom, which elicited a resounding, “RIGHT ON!” from onlookers. During the reading of the verdicts in the courtroom, a spectator blurted out, “They will dance on your grave, Julie, and the graves of the pig empire.” the support shown by the public made the trial more political as well as historical significant. ⇒ Human Trafficking in India the narrative is an excellent example of irony, initially portraying itself as a heated argument until eventually confessing its distracted look before concluding an acknowledgment of its preoccupied attention. rather than bringing us closer to the larger message, the story’s intrigue just takes us farther away from that message. To be a movie and an indictment of one’s voice at the same time is a hard task. Sorkin on the other hand has a heart of gold. Since the insurrection is simply a precursor to the story and the destiny of a rebel is the storyline, a mawkish finale is acceptable. In contrast, justice has a fatal weapon and a tarnished trigger for truth. we may infer that Sorkin does not entirely reject his contemporaries’ conventions; parts of the documentary and testimonial are faithfully replicated. Conclusion: as shown in the film, real-life sentencing statements featured this shot from Rennie Davis to Judge Hoffman: “You represent all that is old, ugly, bigoted, and repressive in this country, and I will tell you that the spirit of this defence table will devour your sickness in the next generation.” Sorkin’s choice to exclude the most important lines in the transcript is puzzling. If there’s one thing to take away from this, it’s that you can’t improvise the historic facts. Reference :- [1] Professor Douglas O. Linder, The Chicago Eight Conspiracy Trial: An Account, Famous Trials, https://famoustrials.com/chicago8/1366-home [2] Aaron Sorkin, The Trial of Chicago 7, https://deadline.com/wp-content/uploads/2020/12/The-Trial-of-the-Chicago-7-Script.pdf [3] The Chicago Eight Trial: Excerpts from the Trial Transcript, http://law2.umkc.edu/faculty/projects/ftrials/Chicago7/Chi7_trial.html Written by Mehak Uppal

Legal

Opening Hours Mon - Sat 09 : 30 am - 8 : 00 pm

+91 9971399324

+91 8840961324

[email protected]

13, Chand Complex, 4th Floor, Okhla Main Market, Okhla Head, Jamia Nagar, New Delhi- 110025

Category: Legal

Immovable property, profit a prendre and doctrine of fixtures

Transfer for benefit of unborn person sec. 13 TPA

Section 4 of The Limitation Act, 1963

Ratio decidendi and Obiter dicta

Mehr (Dower) Muslim Law

Assault and Battery

Rights And Duties Of Partners

Literal Rule of Interpretation of Statutes

Mental Health

The Trial of The Chicago 7 | Through a Legal Lens

About

We are specialized in legal teaching. Our area of teachings and specialization are Judicial Services (PCS J), LLB, APO, APP, Higher Judiciary. LLM etc.

Useful Links

Contact