By Nazaqat Lal, Advocate & Solicitor
email@example.com | Nov 05, 2021
Buildings of co-operative housing societies are being redeveloped on a large scale in the state of Maharashtra. Prior to 2009, a number of complaints were received from members against managements of co-operative societies in which redevelopment was taking place. Some of the common complaints included not taking the members in confidence in the redevelopment process, lack of transparency in the tender process, no orderliness in the work of architects and project consultants, no preparation of redevelopment project report, no consistency in agreements with different developers, etc. At that time, there was no concrete policy to address the aforesaid grievances. As a result, a study group was formed to study the complaints received at various levels. After consultation with all stakeholders, the study group opined that it was essential to frame regulations for redevelopment of buildings of co-operative housing societies. Accordingly, the State Government issued directives under Section 79-A (“the Directives”) of the Maharashtra Co-operative Societies Act, 1960 (“the Act”).
The Directives lay down a step by step process for undertaking redevelopment of co-operative housing societies. The process commences with the calling of a special general body meeting of the society to discuss the redevelopment of the society’s building and ends with the original members being allotted flats in the redeveloped building. One of the primary objectives of the Directives is to ensure transparency and make the process democratic.
A number of cases started being filed alleging non compliance with these Directives and consequently, praying for the redevelopment to be stopped. A question that naturally arose was whether compliance with the Directives was mandatory or directory and accordingly, whether any deviations were permissible.
In a series of judgments passed by various benches over the years, the Bombay High Court has consistently taken the view that the Directives are directory and not mandatory.
In the case of Maya Developers v. Neelam R. Thakkar & Ors., the developers sought interim reliefs against certain members who were not handing over peaceful and vacant possession despite the execution of the development agreement. The Defendants alleged that the Directives under Section 79-A had not been followed. Some specific non-compliances alleged were no detailed feasibility report, no transparency and the selection of the Developer was not just haphazard but was contrived to benefit Maya Developers, one of whose partners was a relative of a managing committee member. It was further contended that there was no decided case yet on the nature of the guidelines issued under Section 79-A and that these guidelines had a binding statutory force. The Bombay High Court held that what the 2009 Directive seeks to set in place are a set of guidelines.
“74. …This is also apparent from the fact that the Government chose to issue these under Section 79A rather than some other section of the Act. What is set out is a broad policy; and this stands to reason, for not every single provision of this Directive lends itself to strict compliance. Clauses 1, 2, 5, 7, 8 and 10 all use the word ‘should’, not ‘must’ or ‘shall’. Clause 11 in terms says that the Development Agreement ‘should’ contain some conditions and provisions but these are specifically subject to the terms and conditions approved by the General Body Meeting of the Society. This Directive must be read as a whole, and not in the manner Mr. Pai suggests by plucking out one clause here and another there. Read thus, it is clear that the whole of the 2009 Directive is recommendatory, not obligatory. If it were otherwise, and to be read as Mr. Pai would have me do, it would undermine the authority of the society in general meeting, and the fundamental democratic underpinnings of cooperative societies. When Mr. Pai asks that is it possible that a majority can decide the fate of all, the answer must be an unequivocal yes; that is the basis of the entire edifice of the MCSA, subject to specific statutory exceptions. It is impossible to accept his submission that the 2009 Directive in mandatory. It is, as Mr. Kapadia says, a broad road map, and was brought into existence to provide guidance when there were far too many problems in redevelopment of societies. Material compliance is more than sufficient; and it in no way undermines or detracts from the overall authority of the general body of a society’s members. It is sufficient if participation, notice and disclosure are ensured. Where majority decisions are consistent with material compliance with the provisions of the Directive, that is surely enough.”
The case of Maya Developers (supra) is also important as it discusses in detail the jurisdiction of the High Court in light of Section 91 of the Act.
In the case of M/s National Properties v. Sindhi Immigrants CHS & Ors., the developer sought a mandatory injunction directing certain members to hand over vacant and peaceful possession pursuant to the development agreement executed with the society and majority members. It was the Plaintiff’s case that the defendants were all related to one Kukreja Group, an entity that had participated in the tender process but was not selected. Subsequently, this entity, through its members and relatives purchased a few flats and tried to stall the redevelopment process. The Defendants alleged collusion between the Plaintiff and the society alleging that the Plaintiff’s proprietor was the secretary of the society. It was also the Defendants’ case that the Directives under Section 79-A had not been complied with. The Hon’ble Bombay High Court held that the consents were initially granted and at that time the contesting defendants were not even flat holders. Further, once the society approved the proposal by the requisite majority, it is not open for the minority individual members to obstruct the redevelopment process. As far as alleged noncompliance of the Directives issued under Section 79-A was concerned, the Court followed the line of judgments in the case of Maya Developers (supra) and Kamgar Swa Sadan Co-operative Housing Society Ltd. and held that the Directives under Section 79-A was merely recommendatory and did not have statutory force.
In the case of Abhanga Samata CHS v. Parag Arun Binani & Anr., a solitary member had challenged the process of redevelopment on the ground that the Directives under Section 79-A had not been followed in letter and spirit and the selection of the developer itself was vitiated by fraud. Some of the non compliances alleged included not inviting tenders by issuing advertisements in newspapers, society not producing written consent letters from members, absence of video conferencing of meetings, etc. The trial court held in favour of the member and injuncted the redevelopment process. The society and developer appealed against the trial court’s order. Their main contention was that all the decisions had been taken by the majority and such decisions would be binding on the dissenting minority. Moreover, the Directives under Section 79-A were directory and not mandatory, and therefore, substantial compliance was sufficient. The appellate court (the Bombay High Court) set aside the trial court’s order and held that the findings by the trial court were contrary to the material on record. Moreover, the irregularities noted by the trial court cannot displace the decisions taken by the majority members of the society. It further held that the Directives under Section 79-A are not mandatory and substantial compliance is sufficient. Decisions taken democratically cannot be interfered with unless the same were caused by fraud or misrepresentation.
From the aforesaid judgments and the judgments relied upon therein, it becomes amply clear that the Bombay High Court has consistently taken a view that the Directives are directory and not mandatory in nature. Therefore, a redevelopment would not ordinarily be stopped on the ground of lack of strict compliance with the Directives. The Court has also held that the State Government is empowered to issue directions in public interest for the purpose of proper implementation of the Act and the Directives are required to be followed only when the members are unable to come to a decision on their own. The Bombay High Court has given paramount importance to the decision of the majority and held that the same would be binding on the minority. The Court has also taken into consideration that the buildings undergoing redevelopment are usually in a condition that is hazardous for the inhabitants to continue residing in and therefore, have been reluctant to intervene in stopping redevelopment processes. In order to get an order injuncting redevelopment, very grave instances of fraud, collusion and/or misrepresentation would have to be shown that severely prejudice the rights of the co-operative housing society and its members at large.
 Notice of Motion (L) No. 834 of 2015 : 2016 SCC Online Bom 6947 : (2016) 6 Bom CR 629
 Notice of Motion No. 285 of 2016 in Commercial Suit No. 509 of 2016 (Bombay High Court)
 2018 SCC OnLine Bom 1319
 Appeal from Order (St) No. 7776 of 2021 (Bombay High Court)
By Nazaqat Lal, Advocate and Solicitor
firstname.lastname@example.org | Nov 01, 2021
Section 63 of the Indian Succession Act, 1925 (“the Act”) requires a will to be attested by at least two witnesses. The attesting witnesses must sign or affix their thumb impression or mark, in the presence of the testator. The section does not permit or provide for delegation of such power by the attesting witnesses.
Unlike other documents, a will speaks from the death of the testator. By executing a will, a testator intends to the living the carrying out of his wishes after his death. Therefore, the initial burden of proving the due execution, attestation, genuineness of the will and sound mind of the testator falls on the attesting witnesses.
Section 67 of the Act deals with the effect of gift to an attesting witness. It states that any benefit or bequest given to an attesting witness or the attesting witness’s spouse, shall be void. However, a legatee under a will does not lose his legacy by attesting a codicil which confirms the will. The object of Section 67 is to avoid chances of possible collusion or undue influence. It is pertinent to note that benefit or bequest given to an attesting witness does not affect the validity of the will and the will shall be deemed to sufficiently attested.
Another important aspect is the applicability of Section 67 of the Act. Section 67 does not apply to wills made by Hindus, Buddhists, Sikhs or Jains. Therefore, any benefit or bequest to an attesting witness or the attesting witness’s spouse under a will made by a Hindu, Buddhist, Sikh or Jain would not be void. In the case of Jose v. Ouseph & Ors., a Division Bench of the Kerala High Court explained the applicability of Section 67 as follows.
“7. Section 67 of the Indian Succession Act, 1925 deals with the effect of gift to attesting witness. This Section is not applicable to Wills of Hindus by virtue of Section 57 read with Schedule III of the Indian Succession Act and as such legatees under the Will of such persons do not forfeit their legacy on becoming attesting witnesses. But in the case on hand the parties are Christian and Section 67, if attracted, will be applicable to them. Legacy to the attesting witness of a Will is void under Section 67…”
This decision of the Kerala High Court was followed by the Delhi High Court in the case of Anand Burman v. State.
“7. The learned counsel for the petitioner, however, points out that Section 67 of the Indian Succession Act is placed in Part-VI of the said Act and Section 57 of the Act, which deals with applicability of the said part, to the extent it is relevant, specifically provides that only those provisions of the said part which are set out in Schedule-III shall, subject to the restriction and modification specified therein, apply to the Will and Codicils made by any Hindu, Buddhist, Sikh or Jain made on or before 1.1.1927. He further points out that Chapter-III of the said Act does not refer to Section 67 of the Act which clearly shows that the aforesaid provisions do not apply to the Will in question. He further pointed out that Section 58 of the Act clearly provides that provisions of Part-VI shall not apply to testamentary succession to the property of any Hindu, Buddhist, Sikh or Jain save and except as provided in Section 57 of the Act. The net effect of these provisions, when read together, is that the bequest made to the attesting witnesses of the Will, executed by a Hindu, is not void under Section 67 of the said Act. Therefore, the bequest made to the petitioner is not void. As regards his competence as an attesting witness, Section 68 of the said Act specifically provides that no person, by reason of interest in, or of his being an executor of, a Will shall be disqualified as a witness to prove the execution of the Will or to prove the validity or invalidity thereof. Therefore, Shri Ashok Chand Burman was a competent witness to prove execution of the Will executed by late Smt. Sudha Burman.” (emphasis supplied)
This contention was accepted by the Delhi High Court and reliance was placed on Jose v. Ouseph & Ors. (supra). Accordingly, probate was granted by the Delhi High Court.
 AIR 2007 Kerala 77
 Test. Cas 25/2010, Judgment pronounced on July 27, 2012
By Nazaqat Lal, Advocate & Solicitor
email@example.com | Oct 26, 2021
Section 8 of the Hindu Minority and Guardianship Act, 1956 (“the Act”) provides that sale or transfer of immovable property of a minor requires the natural guardian of such minor to take prior permission of court. The section further casts an obligation on the court not to provide such permission except in the case of necessity or for an evident advantage to the minor. Disposal of a minor’s immovable property without court’s prior permission is voidable at the instance of the minor or any person claiming under him. The intention of the Legislature to protect the property and interest of minors till the time they attain majority is abundantly clear.
Section 12 of the Act states that no guardian shall be appointed for the minor’s undivided interest in joint family or HUF property where such property is under the management of an adult member of the family. The question that naturally arises from a combined reading of these two sections is whether Section 8 of the Act is applicable to sale or transfer of joint family property by a Karta wherein a minor’s undivided interest is involved. Alternatively, is prior court permission required by the Karta at the time of sale or transfer of joint family property that involves a minor’s undivided share? This question was answered in the negative by the Bombay High Court and Supreme Court of India.
The Bombay High Court placed reliance on Sections 4 and 6 of the Act to answer the aforesaid question. Section 4 defines the term ‘guardian’ and Section 6 sets out the natural guardians in the case of a Hindu minor and the order of priority of persons who are entitled to be guardians to Hindu minors.
The opening words of Section 6 are as under.
“6. Natural guardians of a Hindu minor.—The natural guardians of a Hindu minor; in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are— …” (emphasis supplied)
These words were interpreted and explained by the Bombay High Court as follows.
“7. …The words “excluding his or her undivided interest in joint family property” which have been put in brackets make it clear that undivided interest of a Hindu minor is excluded from the operation of the provisions of the Act and the subject-matter with which the Act deals is limited to guardians in respect of minor’s person or in respect of minor’s property other than his undivided interest in joint family property, whether they be natural guardians or testamentary guardians or guardians appointed or declared by Court. The concept of a guardian in respect of undivided interest in the joint family property is thus specifically excluded from the purview of the Act. The powers which a Hindu father therefore has, as a natural guardian of his minor sons under Hindu Law, are kept intact and are not in any way affected by the provisions of the Hindu Minority and Guardianship Act so far as the undivided interest of a Hindu minor in the joint family property is concerned.
- The restrictions contained in s. 8, therefore, do not apply in respect of the undivided interest of a minor in joint family property and consequently s. 8 does not debar the manager or karta of a joint Hindu family from alienating joint family property including the interest of minor without obtaining the previous permission of the Court, even if the manager or karta, happens to be the natural guardian in respect of the separate property of any one or more of the minor coparceners. Of course, the alienation would have to be justified under Hindu law but s. 8 does not require that any previous permission of the Court should be obtained before effecting such alienation. Under Hindu law a manager and karta of a joint Hindu family can alienate joint family property so as to bind the interest of minor coparceners in such property provided the alienation is either for legal necessity or for the benefit of the estate. If the manager and karta happens to be the father, he has certain additional powers of alienation under Hindu law and in exercise of those powers he can alienate joint family property so as to bind the interest of his minor coparceners in such property. These powers are not at all curtailed or affected in any way by the provisions of the Hindu Minority and Guardianship Act.”
The Supreme Court answered the question on similar lines.
“5. With regard to the undivided interest of the Hindu minor in joint family property, the provisions afore-culled are beads of the same string and need be viewed in a single glimpse, simultaneously in conjunction with each other. Each provision, and in particular Section 8, cannot be viewed in isolation. If read together the intent of the legislature in this beneficial legislation becomes manifest. Ordinarily the law does not envisage a natural guardian of the undivided interest of a Hindu minor in joint family of the property. The natural guardian of the property of a Hindu minor, other than the undivided interest in joint family property, is alone contemplated Under Section 8 where under his powers and duties are defined. Section 12 carves out an exception to the rule that should there be no adult member of the joint family in management of the joint family property, in which the minor has an undivided interest, a guardian may be appointed; but ordinarily no guardian shall be appointed for such undivided interest of the minor. The adult member of the family in the management of the Joint Hindu Family Property may be a male or a female, not necessarily the Karta. The power of the High Court otherwise to appoint a guardian, in situations justifying, has been preserved. This is the legislative scheme on the subject. Under Section 8 a natural guardian of the property of the Hindu minor, before the disposes of any immovable property of the minor, must seek permission of the court. But since there need be no natural guardian for the minor’s undivided interest in the joint family property, as provided Under Sections 6 and 12 of the Act, the previous permission of the Court Under Section 8 for disposing of the undivided interest of the minor in the joint family property is not required. The joint Hindu family by itself is a legal entity capable of acting through its Karta and other adult members of the family in management of the joint Hindu family property. Thus Section 8 in view of the express terms of Sections 6 and 12, would not be applicable where a joint Hindu family property is sold/disposed of by the Karta involving an undivided interest of the minor in the said joint Hindu family property. The question posed at the outset therefore is so answered.”
The Act has drawn a distinction between joint family property in which a minor has undivided interest and other property of a minor. Consequently, the rules applicable to sale and transfer of both types of property are also different; the latter being more stringent. However, in both cases, necessity and benefit of the minor or estate, as the case maybe, are a sine qua non.
While the Legislature has kept the interest of minors paramount, it has to also ensure that joint family property remains easily transferable. If Section 8 was applicable to sale and transfer of joint family property, thereby, requiring prior court permission to sell or transfer joint family property in which a minor’s undivided interest was involved, it would become very difficult to effect sales and transfers of joint family property as at most times, there would be at least one minor in the Hindu undivided family.
 Sakharam Sheku Shinde v. Shiva Deorao Jamale [1973 SCC OnLine Bom 89 : (1974) 76 Bom LR 267]
 Narayan Bal & Ors. v. Sridhar Sutar & Ors. [AIR 1996 SC 2371 : (1996) 8 SCC 54]
By Isha Thakur, Advocate
firstname.lastname@example.org | Oct 18, 2021
“Bitcoin was created to serve a highly political intent, a free and uncensored network where all can participate with equal access” –Amir Taaki, British-Iranian Programmer
In the state of worldwide pandemic and imposition of subsequent phases of the lockdown, the country has witnessed tremendous economic changes with a fair share of individuals losing their jobs to the impact of it on the demand-supply chain and a wide range of commodities and services revaluating their prices unstably throughout the year. However, in such a succession of events, the majority of us came across frequent advertisements on cryptocurrencies or bitcoins. Virtual currency, popularly known as cryptocurrency, is based on blockchain technology and has become a global phenomenon known to the majority of the people in the world. This switch to virtual currencies qua ‘cryptocurrencies’ as an alternate source of income and investment showcased the immunization of it from the ongoing affairs of the pandemic. Admittedly, a recent report by broker discovery and comparison platform BrokerChooser, reveals India having the highest number of Crypto owners at 10.07 Crore.
Before overseeing the impressive user additions and the legality behind it, it is pertinent to note that cryptocurrency or bitcoins, or digital currency are not interchangeable terms. Digital currency is a broad concept, referring to all monetary assets that are in digital form. Virtual currency is a subset of digital currency and cryptocurrency is a subset of virtual currency. Virtual currencies (VC), being an unregulated form of digital currency, with minimum governmental inference and control and with cryptocurrency using cryptography technology to secure and authenticate currency transactions, Bitcoins (a form of cryptocurrency) has attracted an increasing amount of user additions which has just exponentially increased ever since the Reserve Bank of India (RBI) ban was lifted in March 2020.
The use of cryptocurrency has always been a point of debate with its legality being a mystery to the public. The lack of a traditional government or bank-backed system to regulate its use makes cryptocurrencies target several concerns such as it being a conduit to money laundering and promotion of terrorist activities. The RBI, being concerned about the same, had issued several advisories since 2013 informing various stakeholders about the negative ramifications of cryptocurrencies. Consequently, the RBI issued a circular dated 6th April 2018 which prohibited banks and other entities from trading in virtual currencies. The circular directed the entities regulated by RBI, firstly, not to deal in virtual currencies neither to provide services for facilitating any person or entity in dealing with nor settling virtual currencies and secondly, to exit the relationship with such persons or entities, however, transfer of cryptocurrency from one person to another was not prohibited. At the time of issuance of the circular by the RBI, there was no specific legislation dealing with the transactions in virtual currencies.
The circular was subsequently challenged by the Internet and Mobile Association of India (“Petitioner”) on the ground that it was manifestly arbitrary, based on non-reasonable classification and it imposes disproportionate restrictions. The Petitioner contended that VCs are not legal tenders and do not qualify as money but tradable commodities/digital goods due to which they fall outside the regulatory framework of RBI. The Petitioner further argued that the circular violated the fundamental right to practice any profession or to carry on any occupation, trade, or business under Article 19(1) (g) of the Constitution, as it does not pass the test of proportionality vis-à vis the blanket prohibition imposed on the regulated entities.
The Supreme Court of India after extensively considering the legality of the circular along with relevant provisions and the international position laid down some essential viewpoints: –
Nature of Cryptocurrency
Various courts in different jurisdictions have interpreted cryptocurrencies in different categories ranging from property to commodity to non-traditional currency to payment instrument to money to funds. Though VCs are not recognized as legal tenders as contended by the Petitioner, they are, however, capable of performing most of the functions of real currency, and hence, they cannot be considered as just goods or commodities.
RBI’s power to regulate or prohibit Virtual Currencies
The Supreme Court laid down that the RBI has requisite power vested with it to regulate activities of such nature. The Court referred to the preamble, statement of objects and reasons, and various provisions of the Reserve Bank of India Act, 1934 to substantiate its stance that anything that may pose a threat to or have an impact on the financial system of the country can be regulated by RBI. The Supreme Court further noted that the term ‘regulate’ entails the word ‘prohibit’ in it. The court explained that the circular does not impose a prohibition on the use of or the trading in VCs. It merely directs the entities regulated by RBI not to provide banking services to those engaged in the trading or facilitating the trading in VCs. Hence, RBI has and shall have the requisite power to frame policies and issue directions to banks with respect to transactions relating to cryptocurrencies.
Infringement of Article 19(1)(g) of the Constitution
The blanket ban imposed by the RBI on providing banking services to cryptocurrency businesses was held to be violative of Article 19 (1)(g) of the Indian Constitution where the practice to carry on any trade or business was hampered by the circular. The Court opined that although the RBI is vested with the power to form regulations from an act formulated by the parliament, the regulations cannot supersede the rights and freedoms guaranteed by the Constitution of India. The Court, thus, accepted the contention of the Petitioner and held that the Circular was disproportionate because none of the RBI’s regulated entities had ‘suffered any loss or adverse effect directly or indirectly, on account of the interface that the VC exchanges had with any of them.
The Supreme Court’s aforesaid judgment in Internet and Mobile Association of India v. Reserve Bank of India (2020) is a very small victory in favor of the crypto entities in India. Though the aforesaid judgment doesn’t completely adjudicate on the legality of cryptocurrency, however, the Supreme Court has acknowledged that a prohibitory approach and a blanket ban on the trade of cryptocurrencies stand in stark contrast with those countries having the same constitutional values as ours. Countries like China, Bangladesh, and Algeria have placed a ban on the purchase, sale, and use of virtual currencies, specifically, cryptocurrency, however, there are countries like Singapore, Canada and UK that have adopted a regulatory approach towards the trade-in cryptocurrencies.
The Parliament of India, having taken consideration of the same, put a hold on Cryptocurrency and Regulation of Official Digital Currency Bill, 2021 which was to be introduced aiming at prohibiting all the private cryptocurrencies and facilitating a regulatory framework for introducing the official digital currency which in turn would be issued by the RBI. Though Cryptocurrency is not illegal in India, however, nor is it regulated. The concern of the RBI and other stakeholders responsible for the financial stability of the country is justified and the need of the hour keeping in view the negative ramifications that cryptocurrency could lead to especially at the time where the country is fighting the Covid-19 pandemic as well as an economic downfall. India has a very good opportunity of studying the regulatory approach taken by other democratic countries and execute a regulatory architecture for a new digital world.
By Isha Thakur, Advocate
email@example.com | Oct 06, 2021
“Life sans dignity is an unacceptable defeat and life that meets death with dignity is a value to be aspired for and a moment for celebration.” – CJI Dipak Misra
The concept of right to life as envisaged under Article 21 of the Indian Constitution is ‘the procedural Magna Carta protective of life and liberty, as recognized and classified by Justice V.R. Krishnan Iyer in 2007. Such right constituting the heart of the Constitution of India is not just restricted to the act of simply being alive or animalistic existence but emphasizes the right to lead a life with basic human dignity and decency. Over the years, through the way of progressive precedents established by the Honorable Courts in India, the right to life under the Constitution of India has received the broadest possible interpretations thereby establishing and attaching several aspects and facets to it and emphasizing the minimum standards of quality required to live a meaningful life. However, at the same time, there arises a need to acknowledge certain circumstances where some individuals desire to put an end to their lives attributable to the slow degradation of the quality of life. Therefore, the primary question that arises here is if a person has the inherent right to lead a dignified life, would he be entitled to a dignified procedure of death as well?
With the progression of law, the postulation of individual autonomy has gained much significance and has been identified as an essential aspect of human dignity across various jurisdictions. The Right to die is a concept that is based on the opinion that a human being is entitled to make any decision about ending his or her life. Possession of this right is often associated and understood to mean that a person with a terminal illness or without the will to continue living, should be allowed to end their own life or to decline life-prolonging treatment. Right to die or as popularly also known as euthanasia has always been a matter of debate not only in India but in all the countries around the world. While some of the countries have legalized Euthanasia completely, both active and passive, some have different stands on both, partially legalized and some have totally banned and condemned the mere practice of it.
The Supreme Court of India, in the case of Common Cause (A Regd. Society) v. Union of India, while institutionalizing and recognizing the right to die with dignity as an essential facet of the right to live with dignity under Article 21, has emphasized the importance of individual autonomy and self – determination to enable people to execute living wills and attorney authorizations that would be indicative of a person’s choice to discontinue treatment on a later stage if they are terminally ill or in a permanent vegetative state. Therefore, while on one hand, the right to life creates a compelling state interest in preserving human life, on the other hand, it also assures the individual autonomy to make decisions with respect to his/her own body.
The Petitioner in the present case is a registered society who had written to several authorities and state governments with respect to the entitlement of the essential right to die. On receiving no response from such authorities, in 2005, it filed a public interest litigation before the Supreme Court of India on the grounds of:
- seeking direction for legal recognition of living will;
- for the system of certification of passive euthanasia; and
- praying for the declaration that the Right to die with dignity is an essential aspect of Article 21 of the Indian Constitution.
Considering the inconsistent opinions in Aruna Shanbaug v. Union of India (2011) and Gian Kaur v. State of Punjab (1996) with respect to the aforementioned right and euthanasia, the matter was referred to a five-judge bench. The judgment was delivered pursuant to extensively considering the law pertaining to the right to life and right to die along with relevant precedents and the international position in various jurisdictions, the Supreme Court enumerated the following conclusions:
Death with dignity
The Constitution Bench held that the right to life indicates the existence of such right extends up till the end of natural life, thereby establishing a dignified procedure of death. The right to life and liberty would be meaningless unless it encompasses within its sphere individual autonomy and dignity, hence, the said right was held to be part of fundamental right enshrined under Article 21 of the Constitution. The Court held that the right to life includes smoothening of the dying process of a terminally ill person or who is in a constant vegetative state without any hope of recovery.
Passive and Active Euthanasia
The Supreme Court has laid down that the interest of a terminally ill patient or in a persistent vegetative state shall override the interest of the State in protecting the lives of its citizens. Such an individual can make a choice of premature extinction of his life as an inherent right under Article 21. The Constitution Bench, however, clarified that Article 21 covers within its ambit only passive euthanasia and not active euthanasia. While legalizing and permitting the process of passive euthanasia, the Court noted a distinction between cases in which physician decides not to provide or continue to provide for treatment and care, which could or might prolong his life, and those in which he decides to administer a lethal drug even though with the object of relieving the patient from pain and suffering.
Living Will, Attorney Authorisations, and Advanced Directives
An advance medical directive is an individual’s advance exercise of his autonomy on the subject of the extent of medical intervention that he wishes to allow upon his own body at a future date, when he may not be in a position to specify his wishes. The right to execute an advance medical directive is a step towards the protection of aforesaid rights by an individual. The Court recognized Advance Directives akin to a Living Will through which persons of sound mind and in a position to communicate, relate and comprehend can indicate the decision relating to the circumstances in which withholding or of medical treatment can be resorted to.
Guidelines for executing Living Wills
An adult of sound mind and having the capacity to communicate, relate and comprehend the consequences of executing the document, without any form of coercion or compulsion, may voluntarily execute such a written document in the presence of two independent attesting witnesses. Such document must clearly reflect informed consent and unambiguously instruct as to when medical treatment may be withdrawn and must specify which treatments are not to be administered. Further, it should state the name of a guardian who will give consent to withdraw treatment in accordance with the advance directive. The document must be signed by a Judicial Magistrate of First Class (JMFC) and one copy of such document is preserved by the JMFC in his office, in addition to keeping it in digital format. The JMFC after satisfying himself with the informed consent of the executor and the contents of the document forwards a copy of the same to the Registry of the jurisdictional District Court for registration and preservation.
Procedure for executing Advanced Directives
The treating physician of the patient shall refer the matter to the concerned hospital who shall constitute a Medical Board consisting of the Head of the Treating Department and at least three experts with experience in critical care and with overall standing in the medical profession. The decision of the Medical Board, after examining the patient, shall be communicated to the Jurisdictional Collector who shall then constitute another Medical Board comprising the Chief District Medical Officer as the Chairman and three expert doctors. If on visiting the patient, this board is in consonance with the opinion of the board constituted by the hospital, the decision will be communicated to the JMFC. The JMFC will then visit the patient at the earliest to authorize the implementation of the document.
The Supreme Court in the present case has through this judgment endeavored to balance two facets of Article 21. One thing which every man deserves in his life is the Right to life as well as the Right to die with dignity. The sanctity of human life does not imply the forced continuation of existence in pain and suffering. For a person suffering from a terminal illness with no hope of recovery, it would be inhumane to compel him to continue to live a painful life. These instances are not of extinguishing life but only of accelerating the process of natural death, which has already commenced.
By Aishwarya Vashishth, Lawyer
firstname.lastname@example.org | Sep 21, 2021
“Reverse Mortgage” means “an agreement under which an owner of a primary residential property borrows funds from a Bank/Financial Institution (being the Lender) against the security of his ownership rights by mortgaging the same and receives Loan amounts by way of regular tax-free payments (monthly/quarterly/yearly) from the Lender without having to sell his residential property during the validity of the mortgage”. The amounts received under Reverse Mortgage are considered as loans and not income, hence, the same do not attract any tax liability. The benefit of Reverse Mortgage is available only to Senior Citizens.
The concept of Reverse Mortgage which is very popular in countries like the U.S.A. and U. K. is also prevalent in India
The Reverse Mortgage is normally “a life annuity” for a Senior Citizen. It is often found that a Senior Citizen has a decent home to live in but has no means to maintain themselves and live a decent and dignified life. In Reverse Mortgage, the Capital Value of the residential property is converted into an annuity over the lifetime of the Owner and their spouses. In return for the Reverse Mortgage, the Lender makes a lump sum payment to the Borrower or periodic payments during his/her life for a certain fixed period. In Reverse Mortgage one is not required to make any monthly mortgage payments as long as the Borrower (and/or his/her spouse) continues to stay in the residential property as the Owner. There are no income qualifications. The house continues to be in the name of the Borrower during the validity of the mortgage. The Reverse Mortgage is available only on primary residence (in existence of at least 20 years) and not on a second home/house or any commercial property.
Reading the Fine Print
Each bank/financial institution lending under Reverse Mortgage in India has different norms and terms of its own. Depending on the valuation of the residential property, the financial facility is granted up to 3 years. The Borrower can utilize the amounts for various purposes like renovation and maintenance of the house, family’s medical or emergency expenditure, day-to-day living expenses, and similar other personal expenses. However, the borrowings thereunder cannot be used for any speculation, trading, business, or commercial purposes.
The mortgage debt under Reverse Mortgage shall interalia include the loan amount, application fees, processing fees, interest (compounded), penal interest (if any) and prepayment interest, etc.
The “Reverse Mortgage debt’ becomes forthwith due and payable in full on the occurrence of any of the following events, namely: –
- Upon the borrower (and/or his/her spouse) or the last of the surviving borrower if there is more than one borrower passing away or sells the house.
- Upon the borrower permanently moving out of the house.
- Upon the borrower failing to pay property taxes, maintenance charges, and insurance of the house.
- Upon the last surviving borrower failing to live in the house for 12 consecutive months without sufficient cause or justification.
- Upon the Borrower allowing the property to be deteriorated beyond what is considered as reasonable wear and tear and fails to restore the deterioration.
- Upon the Borrower or any of them (if there are more than one) is declared Bankrupt/Insolvent.
- On account of perpetration of fraud or misrepresentation by the Borrower relating to the mortgage transaction.
- The Government condemning the said residential property (for health or safety reasons).
- The Government under statutory provisions acquires the said residential property.
- Upon the Borrower committing any breach of the terms and conditions of the loan agreement and other incidental writings.
The Reverse Mortgage debt is satisfied out of the sale proceeds of the said residential property and if found insufficient, also from the estate of the Borrower. Surplus amount, if any, will be remitted back to the Borrower or his legal heirs. The legal heirs have the preferential right to redeem the Reverse Mortgage by making payment of mortgage debt and they will be given preference for doing so.
The Borrower also has to consider the “adverse effects” of the present scheme of reverse mortgage highlighted below: –
(a) The maximum tenure of payments can be of 10 to 20 years. Beyond the said period, the Borrower can stay in the residential property but he will not be eligible for any further payments.
- The Financial Institution/Bank has the option to revise the lump sum amount/periodic payments at such frequency or intervals based on the revaluation of the property or at least once every 5 years.
- Since the reverse mortgage can be either at a fixed rate of interest or floating rates, it will be prone to attract interest rate movements. Hence, in the scenario in the case of floating rate of interest on Reverse Mortgage, it could add to the Borrower’s liability if the rate goes up.
- Under the Reverse Mortgage, the legal heirs of the borrower are not entitled to take control over the mortgaged residential property until the outstanding loan amount/mortgage debt is first cleared and before they would stake their claim to the property.
The Bank/Financial Institution at its discretion may levy a penalty or other charges on prepayment of the loan. If the Borrower or his heirs wish to prepay the loan amount, they may have to bear this additional cost.
In India, the concept of reverse mortgage has been progressing slowly as houses are seen as family assets for inheritance. Major public-sector banks offer reverse mortgages at competitive rates. Borrowers who wish to opt for the scheme of “Reverse Mortgage” must acquaint themselves with the prevailing guidelines and terms and conditions of loan/periodical payments and carefully consider its pros and cons.
By Rishit Vimadalal, Advocate
email@example.com | Sep 09, 2021
The purchase of any videogame comes with an implicit promise to transport you from your home to the virtual reality within your television screen. Developers are constantly looking to incorporate maximum authenticity and reality into their products; this involves the replication of real names, designs, structures, trademarks, and many other key components from the real world into the virtual one.
Videogame developers have been increasingly using these trademarks in their games both with and without express licensing from the trademark right holders. The development of e-sports and online gaming have also led to an unauthorised development and expansion of games ordinarily sold in the market. In India, there is no statutory categorisation of videogames, and the sparse case laws have done little to settle this uncertainty. However, such trademark usage in virtual worlds has led to several high-profile infringement battles in the United States, and other developed intellectual property jurisdictions.
Position in the United States
In 2011, in Brown v. Entertainment Merchants Association, the United States Supreme Court observed that video games were expressive works, like films and books, and could be given protection as free speech under the First Amendment to the U.S. Constitution. Hence, the 1989 Rogers v. Grimaldi test was extended by several Courts to balance the free speech and trademark protection afforded to videogames. The Rogers test aims to establish whether the used trademark is artistically relevant to the defendant’s work, and whether it is intentionally misleading. The free speech and fair use protection extended to trademarks have been mentioned in Section 1125 of The Lanham Act (Trademark Act of 1946).
In E.S.S. Entm’t 2000, Inc. v. Rock Star Videos, Inc., the dispute revolved around alleged trademark infringements in the popular videogame Grand Theft Auto: San Andreas. The defendants had incorporated a popular adult entertainment club Play Pen into their game, naming it as Pig Pen, and adopting its architectural features and trade dress. The district court and subsequently the Ninth Circuit Court, upheld the free speech protection of the defendants after applying the Rogers test. It felt that this usage was artistically relevant in recreating areas of Los Angeles in the game, and that nothing indicated the connection of the plaintiff with the game to intentionally mislead users.
In the recent case of AM General LLC v. Activision Blizzard, Inc before the District Court of Southern New York, a dispute arose regarding the usage of the High Mobility Multipurpose Wheeled Vehicle (colloquially known as the Humvee) in Call of Duty games. The Court used the Rogers test to hold that the usage of realistic military vehicles in videogames to simulate a warlike environment fulfilled the artistic relevance criteria of the test. It also stated that since the defendants did not dispute the plaintiff’s Humvee mark, and the lack of significant confusion amongst users regarding the mark did not amount to deliberate misleading. It felt that in the tussle between likelihood of confusion and First Amendment free speech rights, the latter would outweigh the former in the present circumstances; there seemed to be no trademarked use of the mark and no association with the origin of the symbol with the plaintiff.
Position in India
Section 30 of The Trade Marks Act, 1999 provides certain exceptions where nominative and descriptive fair use could be implicitly applicable to such scenarios. Section 30 (2)(a) provides for descriptive fair use, where the originally registered trademark could be used as a description to describe the defendant’s own goods or services. Section 30 (2)(d) discusses nominative fair use where the mark of the registered owner is used to refer to the owner’s products themselves.
Indian High Courts have considered nominative fair use in certain trademark infringement matters, and have considered factors such as nature of use, intention of creating an association, consumer confusion, and the mode of use in deciding their ruling. In India, the lack of a particular classification of video games signifies the relatively underdeveloped nature of law related to gaming in India. In Tata Sons v. Greenpeace International, the Delhi High Court was faced with a scenario where the defendants were using their registered Tata trademark in a game. The game consisted of turtles escaping the Tata logo in the style of the popular video game Pacman. In balancing the commitments of the law under Freedom of Speech and Expression, the Court considered that the commercial or communicative intent of the speech would be considered and the fact that this game was in the nature of a parody. In this case, the trademark was used as a method of criticising Tata and hence this would not constitute infringement.
Need for Evolution
In 2017, the release of Player Unknown’s Battlegrounds (PUBG) on multiple platforms created waves in the Battle Royale genre. This game, due to factors like device compatibility and multitude of platforms, has greatly penetrated the India games market. It was observed that this game, in its virtual environment, had made use of Mahindra 265 DI tractors along with the trademark in order to depict a semi-urban setting. Mahindra Tractors did not object to this usage, but in different circumstances, a legal battle could have been a possible outcome.
It is essential that Indian law evolves with technology to avoid such legal uncertainty. In the United States, the Rogers test has been widely used in adjudicating the usage of trademarks within video games but is still not binding on all Circuit Courts because of no authoritative Supreme Court pronouncement. This uncertainty should also serve as a caution to developers to take the necessary legal precautions before constructing their virtual environments. A timely expansion of Indian law on this subject, on the cues of more developed IP jurisdictions, would ensure a more consistent balancing of IP rights along with constitutional guarantees.
 131 S. Ct. 2729.
 875 F.2d 994 (2d Cir. 1989).
 15 U.S.C. § 1125.
 547 F.3d 1095 (9th Cir. 2008)
 S.D.N.Y., No. 17-8644.
 Hawkins Cookers Ltd. v. Murugan Enterprises, (2012) 189 DLT 545.
 Consim Info Private Limited v. Google India Private Limited, [2013 (54) PTC 578 (Mad)].
 Ramos, Andy, Anxo Rodríguez, Stan Abrams, and Tim Meng. “The Legal Status of Video Games: Comparative Analysis in National Approaches.” World Intellectual Property Organisation, July 29, 2013. https://www.wipo.int/publications/en/details.jsp?id=4130&plang.
 178 (2011) DLT 705.
By Jaisal Baath, BBA LL.B. (Hons)
firstname.lastname@example.org | Jul 06, 2021
In the 21st Century, cross border business is the highest it’s ever been and as such, disputes relating to which jurisdiction will have the taxing right on the cross border transactions being performed are also on the rise. The BEPS Action 14 Minimum Standard aims to improve the resolution of tax related disputes between jurisdictions. Article 25 of the OECD Model Tax Convention brings about a Mutual Agreement Procedure (MAP) mechanism using which, the taxing authorities of the contracting states can resolve treaty disputes concerning the interpretation or application of the treaty by agreement.
The main aim of the BEPS Action 14 is to ensure a timely, efficient and effective operation of MAP by addressing the obstacles that hinder the operation of MAP. The OECD is of the view that peer reviews and continuous monitoring will help in ensuring that the final resolution delivered will be more transparent and effective.
BEPS Action 14: Aims and Objectives
The BEPS Action 14 is two-fold. The first sets out the minimum standards, monitoring processes and best practice which are to be followed in order to ensure optimal resolution of treaty disputes. To satisfy the first aspect of Action 14, the member countries must strive to ensure that:
- treaty obligations relating to MAP are implemented in good faith and to ensure that the disputes relating to MAP are resolved in a timely manner;
- putting in place administrative processes so as to ensure the timely resolution and prevention of disputes;
- taxpayers should have the ability to access the MAP to resolve disputes when eligible.
The second fold is the introduction of mandatory binding arbitration of disputes which remain unresolved. This provision for the introduction of a binding arbitration in certain cases is also provided for under the “Multilateral Convention to Implement Tax Treaty Related Measures to Prevent Base Erosion and Profit Shifting (MLI)”. In relation to this provision, the OECD and G20 countries are yet to reach a consensus for its implementation. However, the US is among the 20 countries who are in favour of mandatory binding arbitration and these 20 countries together account for approximately 90% of the outstanding MAP cases, as at the end of 2013.
The 20th October 2016 OECD Publication has several parts. The Terms of Reference has translated the Action 14 minimum standards into 21 elements which helps in analysing a countries administrative and legal MAP frameworks and helps in analysing the effectiveness of the MAP provisions being implemented by the country. These 21 elements assess the countries on the basis of 4 (four) key areas:
- preventing disputes which consists of 2 elements;
- availability and access to MAP which consists of 10 elements;
- resolution of MAP cases which consists of 6 elements;
- implementation of MAP agreements which consists of 3 elements.
Furthermore, an assessment methodology was also enacted that provides for the procedures and guidelines to be followed for the peer review process which comprises of a 2 (two) stage process.
Under stage 1, jurisdictions’ implementation of the Action 14 Minimum Standard is reviewed on the basis of the legal and administrative framework of their MAP programmes and the application of this framework in practice, as well input from peers and taxpayers and reported MAP statistics. For countries that have not implemented all of the 21 elements, recommendations are made so as to ensure, the Countries are able to meet all 21 elements. Follow-up on the stage 1 recommendations is reviewed in stage 2 of the process, which is initiated within one year after the approval of a jurisdiction’s stage 1 peer review report by the BEPS Inclusive Framework.
The OECD Consultation on the BEPS Action 14 (MAP)
The Public Consultation undertaken has provided the member countries with various suggestions so as to ensure the strengthening of the Minimum Standard. The following are the proposals introduced:
Proposal 1: Increase the use of Bilateral APAs:
An Advance Pricing Agreement (APA) is an agreement between the taxing authority and the tax payer with a view to determining the transfer pricing methodology so as to identify the pricing for the tax payers international transactions for the future. It is recommended that member countries establish bilateral APA programme so as to ensure the prevention of disputes and to provide the tax-payers with certainty.
The peer review process has indicated that a majority of the member countries which were assessed had some form of a bilateral APA programme in place. The countries with a low MAP case burden can forego this recommendation of enacting bilateral APA programmes till the time the countries MAP burden reaches a certain level.
Proposal 2: Expand access to training on international tax issues for auditors and examination personnel:
As stated before, the aim of the BEPS Action 14 is to make the dispute resolution mechanisms as effective as possible. Even-though, the OECD lays importance on the existence of an effective MAP policy to realise this aim, not all cases have to enter the MAP process. Mandatory training for audit/examination personnel would increase auditors’ efficacy and would result in:
- better-trained auditors and examiners and
- (ii) fewer adjustments that lead to long discussions in MAP or situations where the case is closed by providing unilateral relief in the jurisdiction that made the adjustment at issue.
This in turn can have the effect of reducing the overall number of MAP cases being initiated every year.
Proposal 3: Define criteria to ensure that access to MAP is granted in eligible cases and introduce standardised documentation requirements for MAP requests:
There are currently no commonly agreed criteria specifying when exactly a case will be eligible to be instated under the MAP process, as well as what information and documentation the tax payer is supposed to file in order to initiate the MAP process. Action 14 Minimum Standard defines the situations in which MAP should be given such as:
- transfer pricing cases;
- cases concerning the application of treaty and domestic anti-abuse provisions;
- cases in which there has been an audit settlement, and
- cases in which taxpayers have provided in the MAP request the required information and documentation as set out in a jurisdiction’s MAP guidance.
The peer review process identified that there are certain instances in which the MAP process is denied when it should have been allowed and vice versa. A few of such situations are as follows:
- cases in which there was no double taxation;
- cases in which there was already a final court decision but correlative relief might be obtained, and
- cases where a PE no longer existed at the time the MAP request was submitted.
Due to the above stated reasons, it is submitted that there is a need to adopt a standard for deciding which cases warrant a MAP process and which don’t. At the same time, to make the access to MAP easier for the tax payer as well as to ensure that no tax payer wanting to opt for MAP is wrongly denied access.
Proposal 4: Suspend tax collection for the duration of the MAP process under the same conditions as are available under domestic rules:
The MAP process usually lasts for a very long time, during the pendency of which, the jurisdictions laying claim to the taxable income, should put their call for the payment of the disputed income on hold, till the time the process of MAP comes to a final conclusion and the award is made in favour of one of the interested parties. This is done to ensure that their is no financial hardship on the tax payer during the pendency of the suit as by being forced by both the jurisdictions to pay their respective alleged claims pertaining to the taxable income, a case of double taxation is born which financially frustrates the tax payer and defeats the purpose of opting for the MAP process in the first place. This requirement for the suspension of the claims being made by both the jurisdictions is in line with the domestic laws of most jurisdictions, under which a suspension of tax collection is available when domestic remedies are initiated to challenge the tax assessment.
Proposal 5: Align interest charges / penalties in proportion to the outcome of the MAP process:
Proposal 5 also follows the same line of reasoning as Proposal 4. The penalties and interest charges that are levied against a tax payer can be substantially high and in some cases can also be more than the taxes actually under dispute. This is highly biased against the tax payer as if after the final decision of the MAP process, the adjustment that made the basis for the interest being levied stands reversed, the tax payer can legitimately ask as to why is he still supposed to pay the interest even when the tax adjustment stands reversed as part of the MAP agreement. Currently, Jurisdictions don’t have to align such interests in line with the final outcome of the MAP process and this can result in significant financial hardships on the tax payer. This can effectively constitute as a roadblock in the effective function of the MAP process as tax payers maybe discouraged from going for MAP.
Proposal 6: Introduce a proper legal framework to ensure the implementation of all MAP agreements:
The peer review process shows that domestic time limits in approximately one-third of the reviewed jurisdictions may jeopardize the implementation of MAP agreements, in cases where the applicable tax treaty does not contain the equivalent of Article 25(2), second sentence, of the OECD Model Tax Convention (which ensures that MAP agreements can be implemented notwithstanding domestic time limits). In a number of jurisdictions assessed, the MAP process is still not fully implemented due to either the jurisdictions not being able to implement the MAP agreement or due to the tax payer not being able to initiate a MAP process due to the expiration of the domestic timelines.
As such, there are several options to address the risk of non-implementation, amongst which the following three introducing the obligation for jurisdictions that:
- All of their tax treaties contain the equivalent of Article 25(2), second sentence;
- All of their tax treaties contain the equivalent of Article 25(2), second sentence, supplemented, if requested by one State, with a provision limiting the time during which a primary adjustment or an assessment is made; or
- Their domestic legislation includes a mechanism that fiscal years are kept open until the MAP proceedings have been finalised or they have administrative procedures that allow for implementation notwithstanding domestic time limits for at least as long as not all treaties contain the equivalent of Article 25(2), second sentence.
Proposal 7: Allow multi-year resolution through MAP of recurring issues with respect to filed tax years:
In cases where the MAP process being initiated is exactly similar to a MAP process that has already been decided upon before, provided the facts and circumstances of both the MAP processes is the same, the tax payer should be allowed to rely on the the decision arrived in the similar MAP process already decided. While doing this, the authorities should make sure that the facts and circumstances of the two MAP processes is the same and as such a multi-year resolution through the MAP process should be allowed. This may help to avoid duplicative MAP requests and permit a more efficient use of competent authority resources.
Proposal 8: Implement MAP arbitration or other dispute resolution mechanisms as a way to guarantee the timely and effective resolution of cases through the mutual agreement procedure:
MAP Arbitration ensures that the cases filed under the MAP process are adjudicated upon in a timely manner. Implementing MAP arbitration could be an incentive to reduce the number of MAP disputes that are closed with no or only partial resolution but may also have a positive impact on more timely resolution of all pending MAP cases. A number of jurisdictions have adopted the process of MAP Arbitration after seeing the benefits of the same whereas, some jurisdictions have raised concerns such as constitutional and sovereignty concerns and also concerns relating to the cost and resource constraints of such an Arbitration.
The OECD Consultation Documents on the BEPS Action 14 (MAP) shows that there still are significant shortcomings in the MAP process as being implemented by Jurisdictions. A majority of the recommendations arrived at after the Consultation aim towards making the MAP process more tax payer friendly and aims to reduce the burdens, specially financial burdens, on the tax payer. The recommendations also ensure that the the member countries implement the MAP process with certainty so that the case load on the country is reduced and only those cases that genuinely deserve to be instituted under the MAP process get the time and attention. The MAP process is very helpful in adjudicating and eliminating instances of double taxation and although it has so far been able to realise its aim of providing a fair and just platform, the recommendations brought about in the Public Consultation process will ensure that the shortcomings of MAP will stand eliminated and both, tax payers as well as the jurisdictions will have more faith in the working of the entire MAP process.
Brown, J. and Shiers, R., 2016. BEPS Action 14: OECD detail on ‘MAP’ procedures. (1).
 Oecd.org. 2016. BEPS ACTION 14: MAKE DISPUTE RESOLUTION MECHANISMS MORE EFFECTIVE. [online] Available at: <https://www.oecd.org/ctp/dispute/discussion-draft-action-14-make-dispute-resolution-mechanisms-more-effective.pdf> [Accessed 25 March 2021].
Un.org. 2020. Committee of Experts on International Cooperation in Tax Matters. [online] Available at: <https://www.un.org/development/desa/financing/sites/www.un.org.development.desa.financing/files/2020-07Revised%20CRP2%20Chapter%205%20%28MAP%20Arbitration%29%20adopted%2026%20June%202020%5B1%5D.pdf> [Accessed 22 March 2021].
 Brown, J. and Shiers, R., 2016. BEPS Action 14: OECD detail on ‘MAP’ procedures. (1).
 Oecd.org. 2021. BEPS Action 14: Making Dispute Resolution Mechanisms More Effective – 2020 Review. [online] Available at: <https://www.oecd.org/tax/beps/public-consultation-document-beps-action-14-2020-review-november-2020.pdf> [Accessed 25 March 2021].
 Id. at 2
 Id. at 2
 Id. at 7
 Id. at 8
Id. at 9
 Id. at 9
 Id. at 11
 Id. at 13
 Id. at 13
 Id. at 14
 Id. at 15
By Nazaqat Lal, Advocate & Solicitor, Bombay High Court
email@example.com | April 21, 2021
The question of the grant of probate by a testamentary court conferring title of a property to a person is a question interlinked with the jurisdiction of a testamentary court. This question was succinctly answered in the negative by the Bombay High Court in the case of Balan Alias Balendu Jayant Sawant v. I.K. Agencies Pvt. Ltd.,
“6. It is settled principle in law that the Testamentary Court is not required to go into the question of ownership or title to the property which forms the subject matter of bequest under the Will. The Testamentary Court is only required to see whether the deceased had the capacity to make the Will and whether the Will has been made in accordance with the provisions of law. Testamentary Court only considers whether the Will is the last testamentary instrument of the deceased, whether the deceased was in sound state of mind when he made the Will and whether the Will was made in accordance with, law that is to say whether it was properly executed and attested as per law. The Testamentary Court is not required to see whether the deceased was the owner of the property which he sought to bequeath under the Will. The decision of the Testamentary Court granting the probate does not confer any title to the property on the legatee if the deceased had none. Issue of title, if raised, is required to be decided by the Court of competent jurisdiction.”
As a legal practitioner, this question becomes important because it not only forms the framework within which a testamentary court exercises jurisdiction, but also, the framework within which a legal practitioner works. A legal practitioner is not required to investigate, ascertain or verify the title of the testator/testatrix to the properties mentioned in the Will before initiating proceedings for grant of probate.
Disputes of title, if any, relating to the property of the testator/testatrix may be raised by way of filing a separate civil suit. The outcome of such civil suit will not be affected by the pendency or final determination of probate proceedings. In a similar situation, the Bombay High Court  held as under –
“3. I understand the submission on behalf of the Respondent brother to be that there is some property to which the deceased did not have title. At the cost of repetition, this is not a question that can ever be decided by a Probate Court. If the brother believes that he has title to any property, he must adopt appropriate proceedings in a Civil Court of competent jurisdiction to establish that title. The grant of Probate will neither convey nor confer title to any property on any person. Therefore, the Respondent-brother is at liberty to adopt such proceedings as he is advised in regard to any particular property and all contentions in that behalf are kept open. That action or proceeding will remain unaffected by the grant of Probate or Letters of Administration with Will annexed.”
Grant of probate by the testamentary court simply establishes the genuineness and authenticity of a Will, grants administration to the estate of the testator/testatrix and enables the executor and legatee to establish their right as executor and/or legatee in a court of law. Grant of probate does not convey or confer title to any property to any person if the deceased testator/testatrix had none. The grant of Probate by a testamentary court does not confer title to property but merely enables administration of the estate of the deceased.
 Judgment dated 19th March 2010 in Notice of Motion No. 20 of 2010 in Testamentary Suit No. 40 of 2004 in Testamentary Petition No. 67 of 1998
 Rajkumar B Hemrajani v. Jyoti R. Hemrajani, Order dated 21st March, 2018 in Testamentary Petition No. 749 of 2017 with Testamentary Petition No. 785 of 2016 in Testamentary Suit No. 6 of 2018
By PRAJJWAL SHARMA, Law Student, HPNLU, SHIMLA
firstname.lastname@example.org| March 10, 2021
What are the new social media regulations called?
The new social media regulation is called, “The Information Technology (Guidelines for Intermediaries and Digital Media Ethics Code) Rules, 2021”.
What are these “Intermediaries”?
The term “intermediary” has been defined under the Information Technology Act, 2002 (“IT Act”) with respect to any particular electronic message and means any person who on behalf of another person receives, stores or transmits that message or provides any service with respect to that message.
Like vicarious liability, their arises a liability on the side of the intermediary if any illegal activity is observed by any party on the particular platform.
It can be referred as Intermediary liability- it means that the intermediary, a service that acts as ‘intermediate’ conduit for the transmission or publication of information, is held liable or legally responsible for everything its users do.
What changes are bought in by these rules?
(1) Intermediaries must identify the originator of any malicious content and pull it down within 36 hours of it being flagged. Flagging can be done through a court order or from a competent government agency after which the unlawful information has to be disabled.
(2) Platforms will be required to provide information including related to verification of identity, to lawfully authorized agencies within 72 hours.
(3) Streaming platforms have to classify content into five categories-
(i) U (Universal)
(ii) U/A (7+)
(iii) U/A (13+)
(iv) U/A (16+)
(v) A (Adult)
(4) Digital News Media Organisations can be directed to remove any content which falls under section 69A of the IT Act, 2000.
(5) Stand-alone digital media organisation need to follow the code of journalistic ethics, laid down by the Press Council of India, currently observed by print media and the cable and TV regulation act, which applies to television news.
(6) The intermediaries have to appoint a grievance redressal officer who will deal with complaints and also have to share the name and details of such an officer.
(7) Social Media Intermediaries have to appoint a chief compliance officer, nodal contact person, a resident grievance officer, all of whom should be resided in India.
What are the offences to be curbed under this regulation?
All the sections mentioned below are from the Information Technology Act, 2000
(1) Section 66A-This section provides the punishment for sending offensive messages through communication services etc.
“Any person who sends, by means of a computer resource or a communication device, –
(a) any information that is grossly offensive or has menacing character; or
(b) any information which he knows to be false, but for the purpose of causing annoyance, inconvenience, danger, obstruction, insult, injury, criminal intimidation, enmity, hatred or ill will, persistently by making use of such computer resource or a communication device;
(c) any electronic mail or electronic mail message for the purpose of causing annoyance or inconvenience or to deceive or to mislead the addressee or recipient about the origin of such messages,
Here, the terms “electronic mail” and “electronic mail message” is referred to texts, audios, videos received on a computer system.
(2) Section 67- It states the punishment for publishing or transmitting obscene material in electronic form. “Obscene”, here is defined as any material which is lascivious or appeals to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who are likely, having regard to all relevant circumstances, to read, see or hear the matter contained or embodied in it.
(3) Section 67A- It defines punishment for transmitting or publishing material containing sexually explicit act etc in electronic form.
(4) Section 67B- Imprisonment of five years or fine upto ten lakh rupees for publishing or transmitting of material depicting children in sexually explicit act etc. in electronic form. For the purpose of explanation of this section, “children” is defined as a person who has not completed 18 years of age.
(5) Section 69A- It defines the power to issue directions for blocking for public access of any information through any computer resource, where-
“The Central Government or any of its officers specially authorised by it in this behalf is satisfied that it is necessary or expedient so to do, in the interest of sovereignty and integrity of India, defence of India, security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of any cognizable offence relating to above.”
What if the origin of the content is from outside the territory of India?
In the case where the initial origin of the content is from another another nation or outside the territorial jurisdiction of India. The intermediaries have to declare the identity of the user which was the first to forward it into the nation.
For example, an offensive post is originated from a European country. The individual to transmit the post from that country to India has to be held accountable for the same.
Does it violate the immunity provided to intermediaries in section 79 of IT Act?
The intermediaries are provided some immunity in the section 79 of the IT act. It gives exemption to the intermediaries in some certain cases.
(1) Notwithstanding anything contained in any law for the time being in force but subject to the provisions of sub-sections (2) and (3), an intermediary shall not be liable for any third-party information, data, or communication link made available or hosted by him.
(2) The provisions of sub-section (1) shall apply if–
(a) the function of the intermediary is limited to providing access to a communication system over which information made available by third parties is transmitted or temporarily stored or hosted; or
(b) the intermediary does not–
(i) initiate the transmission,
(ii) select the receiver of the transmission, and
(iii) select or modify the information contained in the transmission;
(c) the intermediary observes due diligence while discharging his duties under this Act and also observes such other guidelines as the Central Government may prescribe in this behalf.
(3) The provisions of sub-section (1) shall not apply if–
(a) the intermediary has conspired or abetted or aided or induced, whether by threats or promise or otherwise in the commission of the unlawful act;
(b) upon receiving actual knowledge, or on being notified by the appropriate Government or its agency that any information, data or communication link residing in or connected to a computer resource controlled by the intermediary is being used to commit the unlawful act, the intermediary fails to expeditiously remove or disable access to that material on that resource without vitiating the evidence in any manner.
The only point to note while talking about the debated collision of section 79 and the new rules is clause (b) of the sub-section 3 of the same. The highlighted text states that upon receiving actual knowledge or after being notified by the government authorities if the intermediary fails to disable the access to the controversial data, the exemption will not be provided to the intermediary.
If we look again at the new rules, it is just compulsory for the intermediaries to share the origin of the post which are against the public morality, interest as well as the one which is against sovereignty and integrity of the nation.
Does it curb the individual’s free speech?
As long as we are on the topic of individual’ freedom of speech being restraint with the new regulation being implemented, it can be said that there are meagre chances of that event to happen. Even before the implementation of this rule, section 66A, 67, 67B & 69A were in existence which put same level of vigilance on social media posts as they will do now.
Free speech though provided to the citizens is restrictive in nature. Freedom of speech is a form of liberty provided to the citizens of the land. One of the two types of liberty is- negative liberty, which states that liberty is absence of restraints.
Such a situation leads to social catastrophes. Thus, not restraining the freedom of speech to an extent is also dangerous to the integrity and sovereignty of the nation.
By Admin, LegalFormatsIndia.com
Dec 8, 2020
This Article is only to highlight the general information and concept of a valid “WILL”.
“Will” is defined in Section 2 (b) of the Indian Succession Act, 1925 as “the legal declaration of the intention of a testator with respect to his property which he desires to be carried into effect after his death”.
The maker of the Will is called the “Testator”; the persons appointed under the Will to administer the estate of the Testator are called the “Executor/s”; and the persons receiving benefit thereunder are called the “Beneficiaries”.
A Will takes effect not from its execution, but on the death of the Testator and therefore the draftsman has to consider not only the circumstances of the Testator at the time when the Will is prepared but also what they may possibly be at the time of his death.
As a general rule for a Will to be valid it must be written. The only exception provided under the law exempts members of the armed forces employed in an expedition or engaged in actual warfare and mariners at sea who are permitted to make an oral Will. Such a Will is known as a “Privileged Will”. Muslims are permitted by their personal law to make an oral Will that need not be in writing.
A Will is the desire/intention of the Testator and under the law, he has, full freedom to give his personal property to any one and whomsoever he wants. The Testator should also make a provision in the Will about the future properties which he/she may acquire during his/her lifetime after the date of the Will as also about his/her residual properties which may not have been specifically mentioned in the Will.
If a person dies leaving properties in that case it is possible that in the absence of a valid Will his/her legal heirs will fight for their share in his/her properties. Hence, it is very essential that to maintain peace in the family and to avoid future conflicts between legal heirs every person should make a Will. If a person dies without leaving a Will in that event his/her estates/properties shall devolve on his/her legal heirs as per applicable Succession Act.
FEATURES OF A VALID WILL:
1. Every person of sound mind, not being a minor, may dispose of his property by a Will. A married woman may dispose of by her Will any property which she could alienate by her own act during her life. Persons who are deaf or dumb or blind are not thereby incapacitated for making a Will if they are able to know what they do by it.
2. For the due execution of a Will:
(a) the Testator should sign or affix his mark (i.e., signature) to the Will. The Testator has to affix his/her signature or thumb impression (if illiterate) in such a manner that it should appear that it was intended thereby to give effect to the writing as a Will. It is suggested that to give proper authenticity to the document, the Testator should sign on all pages of the Will. If the Will is made in any other language which is normally not well understood by the Testator, in that event the witness attesting the Will and before its execution should explain the entire Will in the language understood by the Testator and endorse the fact of explanation on the Will before its attestation by him.
(b) the signature or the mark of the Testator should be so placed that it should appear that it was intended thereby to give effect to the writing as a “Will”.
(c) the execution of the Will should be attested by two or more witnesses.
(d) All the 3 persons namely person executing the Will and the two attesting witnesses must simultaneously and at one time sign and execute the Will in presence of all three of them. Each of the said witnesses must have seen the Testator signing or affixing his mark to the Will and each of them should attest his signature as having been affixed in their presence and they having put their signatures in presence of all three of them.
3. A Will can be made on any plain sheet and need not be on a stamp paper. Registration of a Will is not compulsory but is merely optional. Even though a Will may create or purport to transfer or bequeath an interest in an immovable property it does not require registration. The reason is that on the date of the execution of the Will it does not effect any transfer.
4. A Will only comes into effect only upon the demise of the Testator. Hence, until then, the Testator can revoke and cancel the same any number of times and prepare a new Will in its substitution. It is only the last Will in time that will prevail and be treated as valid. Registration of a will is not compulsory but is merely optional as though a Will may create an interest in an immovable property, however as on the date of the Will it does not effect any transfer.
5. The Attesting Witnesses to the Will preferably should be respectable persons having good reputation in the society. The Executors and the beneficiaries under the Will should be avoided as being witnesses to the Will. The idea behind this is to avoid an attesting witness, who is also a beneficiary under the terms of a Will, from deposing falsely regarding the manner and method of execution of the Will. It is also not necessary that a Doctor and/or an Advocate and/or Notary Public should attest the Will. If the family Doctor or a family lawyer witnesses the Will it would be a plus point. However, if the Testator opts to register the Will in that event the Registering Authority insists that the Doctor’s Certificate should be attached to the Will certifying that prior to execution of the Will he had physically examined the Testator and found him mentally fit to understand and execute the Will. This is to ensure that the Testator had sound disposing state of mind to execute the Will.
1. In the event that the Testator desires to make some change or modification and that a part of the Will needs to be altered, another document effecting such change can be prepared and attached to the Will to be executed in the same manner as that of the Will. This document is called a Codicil and shall form part of the Will. Both the Will and the Codicil are to be read together for the purpose of giving effect to the provisions contained therein after the death of the Testator.
2. If many changes are required to be effected in the main provisions of the Will, it is desirable to make another Will revoking the previous Will so that it becomes easy to follow the provisions contained in the Second Will instead of looking into two documents viz. Will and Codicil and the difficulty in co-relating both such documents can be avoided.
A holographic will is a will which is wholly handwritten by the Testator himself in his own handwriting. Holographic Wills are valid in India. The primary requirement that a Holographic Will must satisfy is that it needs to be expressly in the nature and form of a Will, bequeathing the estate of the Testator and should meet with other formal requirements of a valid Will. The Will must designate itself to be a testamentary document expressly stating on the first page the same to be the “last will and testament of the Testator”. Even in respect of a Holographic Will, quite contrary to the popular belief that Holographic Wills being handwritten by the Testator himself, do not require two attesting witnesses, there is no exemption from the requirement of two attesting witnesses which is a must.
It is difficult to challenge the validity of a properly executed Will before a Court of Law. However, the Will can be challenged before a Court of Law mainly on the following amongst various other grounds available in law, namely: –
(a) The Will is not executed by the Testator. His signature is forged and/or fabricated.
(b) The special requirement of attestation by two witnesses are not met with.
(c) The Will is executed under undue influence, fraud and coercion. It is held by our courts that “it is open to a person to plead his case before the testator and to persuade him to make a disposition in his favour, and if the testator retains his mental capacity, and there is no element of fraud or coercion, the Will cannot be attacked or challenged on the ground of undue influence.”
(d) The Testator had no sound disposing state of mind to execute the Will.
(e) The circumstances under which the Will is executed are suspicious. The suspicious circumstances may be as to the genuineness of the signature of the Testator, the condition of the Testator’s mind, the dispositions made in the Will being unnatural, improbable or unfair in the light of relevant circumstances or there might be other indication in the Will to show that the Testator’s mind was not free.
(f) That the Will is not the last Will of the deceased and that there is a subsequent valid Will.
The burden to prove the aforementioned allegations is on the person making the same.
By Ramesh Gajria, Advocate and Solicitor, Gajria and Co.,
email@example.com | Dec 8, 2020
A major part of growing your business is developing a strong brand and, thereafter, protecting it.
What is a Mark?:
• The Trade Marks Act, 1999 defines a “mark” to includes a device, brand, heading, label, ticket, name, signature, word, letter, numeral, shape of goods, packaging or combination of colours or any combination thereof.
• “Trade mark” means a mark capable of being represented graphically and which is capable of distinguishing the goods or services of one person from those of others and may include shape of goods, their packaging and combination of colours;
There are several benefits to trademarking.
• The main purpose of a trademark is that it distinguishes the goods/services of one person from those of another.
• It builds customer recognition and brand loyalty.
• It can become a valuable asset over the years, if proper care is taken of its use and protection.
• It provides the purchaser an indication of the quality of the goods/services that you provide.
• A trade mark can last forever if it is renewed regularly from time to time.
Selecting a Trade Mark:
• There are various categories of trade marks with varying levels of strengths and distinctiveness.
• These are the marks which have no meaning and are not dictionary words eg. KODAK, BATA or EXXON. These are considered to be strong and highly distinctive of all marks.
• These are dictionary or known words but have no connection with the goods/services. Eg. APPLE for Computers, MANGO for readymade garments.
• These suggest a meaning or relationship with the goods/services but do not describe them. Eg. AIRBUS or NETFLIX.
• These marks are very weak as they describe the goods/services or its characteristics and it may not be possible to enforce such marks. Descriptive marks, however, may acquire distinctiveness and secondary meaning by long use. Eg. SHOELAND for a shoe shop.
• Are words that express praise or commendation. Marks like BEST, SUPER, A-1 are laudatory and are considered to be descriptive.
• A generic term is a commonly used term that describes the product or service. These marks are the weakest and can never acquire any distinctiveness. Eg. Salty for salted biscuits.
• The Trade Marks Act, 1999 also lists out trade marks that cannot be registered. Viz. – marks that are devoid of any distinctive character – marks which designate the kind, quality, quantity, intended purpose, value, geographic origin of the goods or services – marks that have become customary in the current language or in the bonafide or established practice of the trade – marks containing scandalous matter – marks which will deceive the public – marks that will hurt public sentiments – marks prohibited under the Emblems and Names Act – the shape of goods which results from the nature of the goods themselves or which is necessary to obtain a technical result or where the shape gives substantial value to the goods.
• A mark will also not be allowed to be registered if it is:
identical with another mark already on the register for similar goods
similar to another mark already on the register for identical goods and there is likelihood of confusion
identical with or similar to a mark already on the register and the goods are not similar but the earlier mark is a well known mark and the use of the latter without due course will take unfair advantage of the well known mark or is detrimental to the distinctive character or repute of the well known mark.
The trademarking process
• The first step is to ascertain under which class the goods/services can be categorised. There are 45 different classes out of which 11 classes i.e. classes 35 to 45 are service classes. This can be ascertained from the link provided on the website of the Trade Mark Registry.
• The next step is to take a search of the TM records from the link also provided on the TM Registry. However, this may not be sufficient and one must also conduct an independent search on the web to ascertain whether any other person is using the same or similar trade mark.
• Once satisfied that the mark does not offend any existing mark, one can start the process for filing the trade mark application.
• Form TM-A which is the form of application for registration of the Trade Mark has to be filled up and filed before the relevant Trade Mark Registry along with payment of the requisite fees as per the Schedule. Currently individual applicants pay 50% of the fees paid by partnerships, LLP’s and Companies. There is also a rebate for MSME’s. The Application is to be filed in the appropriate office of the Trade Mark Registry having jurisdiction. Presently the TM Registry is situate at N. Delhi, Mumbai, Calcutta, Chennai and Ahmedabad.
• Once filed, the application is examined by an Examiner who issues his Examination Report setting out his objections, if any. A reply is to be filed within a period of 1 month. If the Registrar is not satisfied with the compliance, a show cause hearing is fixed. After the hearing, the application is either accepted or rejected or may be withdrawn. If it is accepted, the mark is advertised in the Trade Mark Journal which is published every 15 days and is available on the website of the Registry. After the mark is advertised, if the mark is unopposed within 4 months, it proceeds for registration. If it is opposed, then parties have to file their respective Counter Statements and Affidavits of Evidence. Once the pleading are complete the Opposition is fixed for hearing. If the mark is not opposed, it proceeds for registration and Registrar issues the Registration in due course.
Protection and enforcement of Trade Mark Rights
• Once registered a trade mark may become generic over the years because of various reasons and the owner fails to take steps to prevent it e.g. ESCALATOR. “The loss of the brand name was partly the company’s own fault — it was ruled that Otis had used the term “escalator” generically in its own advertising.”
If the mark is used as a verb, there is a risk of it becoming generic. If a trade mark is being used in a generic manner e.g. XEROX (instead of Photocopy), the owner must take immediate steps to correct the same and educate the consumer. Non-enforcement of trade mark rights may also lead to a mushrooming effect where several persons copy the mark and the mark ultimately becomes common to the trade. Generic use presents an inherent risk to effective enforcement of trademark rights.