Handwriting and Contents doesn’t matter as to whether cheque written by Complainant or not

When a person transferred a blank cheque to the creditor for any purpose that amounts to cheque was been issued under the security within the purview and presumption of Section 139 of Negotiable Instrument Act. As per the section 20 of NI act when blank cheque is given by drawer he gives authority to payee to complete the instrument. It is unequivocally established that payee can fill or write over the cheque but it shall be original transaction amount. It has a exception under the Section 87 if the payee failed to prove under the section 20 in respect of authority that amounts of material alteration.  In this regard, the accused can’t take any defence under the grounds that contents of the cheque not written by me and the same filled by the complainant. Therefore, the handwriting and contents in the cheque is immaterial. However, in order to avoid misuse the cheque from the point of original fact that income proof the complainant is mandatory as discussed in earlier post in this blog.

Section 20. Inchoate stamped instruments- Where one person signs and delivers to another a paper stamped in accordance with the law relating to negotiable instruments then in force in India, and either wholly blank or having written thereon an incomplete negotiable instrument, he thereby gives prima facie authority to the holder thereof to make or complete, as the case may be, upon it a negotiable instrument, for any amount specified therein and not exceeding the amount covered by the stamp. The person so signing shall be liable upon such instrument, in the capacity in which he signed the same, to any holder in due course for such amount: provided that no person other than a holder in due course shall recover from the person delivering the instrument anything in excess of the amount intended by him to be paid thereunder."

Section 87. Effect of material alteration.—Any material alteration of a negotiable instrument renders the same void as against anyone who is a party thereto at the time of making such alteration and does not consent thereto, unless it was made in order to carry out the common intention of the original parties; Alteration by indorsee.—And any such alteration, if made by an indorsee, discharges his indorser from all liability to him in respect of the consideration thereof. The provisions of this section are subject to those of sections 20, 49, 86 and 125.

Study Case: Smt. Sunita Dubey vs Hukum Singh Ahirwar

The Builder Has No Power To Sell Car Parking Area

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The Hon'ble Apex Court clearly made it clear that the builder has no power to sell any car parking by receiving consideration amount from the customer because of the said area would be treated as common area.

 It was argued in Supreme Court Civil Appeal No. 2544 OF 2010 Nahalchand Laloochand Pvt. Ltd. Versus Panchali Co-operative Housing Society Ltd. that the right of the promoter to dispose of the stilt parking space is a matter falling within the domain of the promoter's contractual, legal and fundamental right and such right is not affected. This argument is founded on the premise, firstly, that stilt parking space is a `flat' by itself within the meaning of Section 2(a-1) of MOFA and in the alternative that it is not part of `common areas'. But we have already held that `stilt parking space' is not covered by the term `garage' much less a `flat' and that it is part of `common areas'. it must be held that stilt parking space/s being part of `common areas' of the building developed by the promoter, the only right that the promoter has, is to charge the cost thereof in proportion to the carpet area of the flat from each flat purchaser. Such stilt parking space being neither `flat' under Section 2(a-1) nor `garage' within the meaning of that provision is not sellable at all.

It is, thus, clear that the promoter has no right to sell `stilt parking spaces' as these are neither `flat' nor appurtenant or attachment to a `flat'.

Easement Right is Permanent for Next Generation's Legal Heirs

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(2012) 8 MLJ 379 J. Chandraekaran and Ors Vs V.D. Kesavan

(A)        Common usage – Right to use common passage – Whether plaintiff was entitled to common usage of the suit land – Held, document has to be read as a whole and it’s spirit should be taken note of – In recitals of partition deed, defendant and plaintiff’s father admitted that suit land should be available for both of them – Plaintiff derived his title only under his father even though not by inheritance, at least by compromise as envisaged under compromised deed – Plaintiff had right of common passage in schedule lane.

(B)         Indian Easements Act (5 of 1882), Section 15 – Prescription – Acquiescence – Electric metres of defendants fixed on wall of plaintiff – Whether defendants have right to continue such metres fixed on plaintiff’s wall as latter acquiescence to it – Held, once as per partition deed, specific right is found conferred on plaitniff’s father, cannot exclude his heir from using suit lance by just pleading prescription – Simply because plaintiff tolerated defendants, does not mean that ad nauseam and ad infinitum he should tolerate the same – Plea of acquiescence or prescription pleaded by defendants is untenable – Second appeal and cross-appeal dismissed.

What Law/Act says?

Section 13(e) and (f) provide as follows:

Where a partition is made of the joint property of several persons (e) if an easement over the share of one of them is necessary for enjoying the share of another of them, the latter shall be entitled to such easement; or (f) if such an easement is apparent and continuous and necessary for enjoying the share of latter as it was enjoyed when the partition took effect, he shall, unless a different intention is expressed or necessarily implied, be entitled to such easement.

Section 15 of the Easement Act inter alia provides:

where a right of way or any other easement has been peaceably and openly enjoyed by any persons claiming title thereto, as an easement, and as of right, without interruption and for twenty years.... Explanation II. Nothing is an interruption within the meaning of this section unless there is an actual cessation of the enjoyment by reason of an obstruction, by the act of some person other than the claimant, and unless such obstruction is submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

Conclusion:

An easement cannot be extinguished by virtue of creation of any agreement as to no alternative remedy available to enjoy the same and it it was common usage for all. When the right has been accrued from the ancestral or previous owner by creating an agreement that benefit goes to all apparent legal heir eternally or perpetually. Hence, any one of the next legal heirs or owners or possessor cannot impose any restriction over next generation’s beneficial enjoyment.

DIFFERENCE BETWEEN LEASE AND LICENSE WITH EXAMPLES

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In Associated Hotels of India Ltd. v. R.N. Kapoor (AIR 1959 SC 1262) this Court referred to the difference between a lease and licence.:

"There is a marked distinction between a lease and a licence. Section 105 of the Transfer of Property Act defines a lease of immovable property as a transfer of a right to enjoy such property made for a certain time in consideration for a price paid or promised. Under Section 108 of the said Act, the lessee is entitled to be put in possession of the property. A lease is therefore a transfer of an interest in land. The interest transferred is called the leasehold interest. The lessor parts with his right to enjoy the property during the term of the lease, and it follows from it that the lessee gets that right to the exclusion of the lessor......"

After referring to the definition of licence in Section 52 of the Easement Act, this court held:

"Under the aforesaid section, if a document gives only a right to use the property in a particular way or under certain terms while it remains in possession and control of the owner thereof, it will be a licence. The legal possession, therefore, continues to be with the owner of the property, but the licensee is permitted to make use of the premises for a particular purpose. But for the permission, his occupation would be unlawful. It does not create in his favour any estate or interest in the property. There is, therefore, clear distinction between the two concepts. The dividing line is clear though sometimes it becomes very thin or even blurred. At one time it was thought that the test of exclusive possession was infallible and if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. But there was a change and the recent trend of judicial opinion is reflected in Errington v. Errington [1952] 1 All E.R. 149, wherein Lord Denning reviewing the case law on the subject summarizes the result of his discussion thus at p. 155 :

"The result of all these cases is that, although a person who is let into exclusive possession is, prima facie, to be considered to be tenant, nevertheless he will not be held to be so if the circumstances negative any intention to create a tenancy."

"...The following propositions may, therefore, be taken as well-established : (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties - whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease..."

In C.M. Beena vs. P.N. Ramachandra Rao - 2004 (3) SCC 595, this Court explained a Licence thus :

"Only a right to use the property in a particular way or under certain terms given to the occupant while the owner retains the control or possession over the premises results in a licence being created; for the owner retains legal possession while all that the licensee gets is a permission to use the premises for a particular purpose or in a particular manner and but for the permission so given the occupation would have been unlawful."

20. Licences can be of different kinds. Some licences with reference to use of immovable property may be very wide, virtually bordering upon leases. Some licences can be very very narrow, giving a mere right enabling a person to visit a premises - say a museum or a lecture hall or an exhibition. In between are the licences of different hues and degrees. All licences can not be treated on the same footing. We may refer to some illustrations to highlight the difference.

Illustration (A):

An owner of a property enters into a lease thereof, but to avoid the rigours of Rent Control legislation, calls it as a licence agreement. Though such a lease is captioned as a `licence agreement', the terms thereof show that it is in essence, a lease. Such a licence agreement which puts the licensee in exclusive possession of the premises, untrammeled by any control, and free from any directions from the licensor (instead of conferring only a bare personal privilege to use the premises) will be a lease, even if described as licence. For example, if the exclusive possession of an apartment or a flat or a shop is delivered by the owner for a monthly consideration without retaining any manner of control, it will be a lease irrespective of whether the arrangement is called by the owner as a `lease', or `licence'. As far as the person who is let into exclusive possession, the quality and nature of his rights in respect of the premises will be that of a lease or a tenant and not that of a licensee. Obviously such a `licensee' cannot be `evicted' or `dispossessed' or prevented from using the premises without initiating legal action in accordance with law.

Illustration (B):

The owner of a land constructs a shopping mall with hundred shops. The owner of the mall earmarks different shops for different purposes, that is sale of different types of goods/merchandise, that is shops for exclusive clothing for men, shops for exclusive clothing for women, shops for hosieries, shops for watches, shops for cameras, shops for shoes, shops for cosmetics and perfumes, shops for watches, shops for sports goods, shops for electronic goods, shops for books, shops for snacks and drinks etc. The mall owner grants licences in regard to individual shops to licensees to carry on the identified or earmarked  business. The licensor controls the hours of business, regulates the maintenance, manner of display, cleanliness in the shops. The ingress and egress to the shop licensed to the licensee is through the corridors in the mall leading from three or four common access points/entrances which are under the control of the licensor. The licensee is however entitled to stock the shop with brands of his choice though he does not have the right to change the earmarked purpose, entertain any clientale or customers of his choice and fix the prices/terms for his goods. He can also lock the shop at the end of the business hours and open it whenever he wants. No one else can trade in that shop. In such a case, in spite of the restrictions, controls and directions of the licensor, and in spite of the grant being described as licence, the transaction will be a lease or tenancy and the licensee cannot be dispossessed or evicted except by recourse of law. Illustration (C):

In a shopping complex or in a mall the owner gives a licence to a person to use a counter to sell his goods in consideration of a fee. The access is controlled by the licensor and there is no exclusive use of any specific space by the licensee. At the end of the day, the licensee can close the counter. The space around the counter is visited and used by customers to the mall and not exclusively by the customers of the licensee. In such a case, if the licence is terminated, the licensor can effectively prevent the licensee from entering upon his premises and the licensee will have no right to use the counter except to remove his belongings. In such a licence it may not be necessary for the licensor to sue the licensee for `possession' or `eviction'. Illustration (D):

A much narrower version of a licence is where an exhibitor of cinematograph films, or a theatre owner permits a `customer' or `guest' to visit an entertainment hall to view and enjoy a movie or a show for the price of a ticket. The licensee is permitted to occupy a seat in the theatre exclusively for the period of the show. Or a cloakroom with toilet facilities in a public building permits a visitor to use the toilet/closet facilities on payment of a fee. The licensee is permitted to use the toilet/closet exclusively to relieve himself. In such cases, the licence is for a specific purpose and for a specific period. The licensee has no other right to enter the premises, nor the right to continue to occupy the seat in the theatre or use the toilet/closet continuously. Such a licensee can be forcibly removed by the licensor if the licensee overstays or continues to occupy the seat beyond the show, or refuses to leave the cloakroom. It is not necessary for the licensor to sue the licensee. Illustration (E):

(For more study: Bharat Petroleum Corp.Ltd vs Chembur Service Station on 2 March, 2011 comprising Judges Mr. R. Ravindran and H.L.Gokale and link: http://indiankanoon.org/doc/761336/)

2015 Amendment Acts of the Indian Parliament

                                                                                  Image Sources;www.youthkiawaaz.com 

2015 ACTS OF PARLIAMENT (OTHER THAN APPROPRIATION ACTS AND FINANCE ACT)
Act No.1 of 2015	The Citizenship (Amendment) Act, 2015
Act No.2 of 2015	The Public Premises (Eviction of UnauthorisedOccupants) Amendment Act, 2015
Act No.3 of 2015	The Motor Vehicles (Amendment) Act, 2015
Act No.4 of 2015	The Constitution (Scheduled Castes) Orders (Amendment) Act, 2015
Act No.5 of 2015	The Insurance Laws (Amendment) Act, 2015.
Act No.10 of 2015	The Mines and Minerals (Development and Regulation) Amendment Act, 2015
Act No.11 of 2015	The Coal Mines (Special Provisions) Act, 2015
Act No.12 of 2015	The Andhra Pradesh Reorganisation (Amendment) Act, 2015.
Act No.14 of 2015	The Regional Rural Banks (Amendment) Act, 2015
Act No.16 of 2015	The Warehousing Corporations (Amendment) Act, 2015
Act No.17 of 2015	The Repealing and Amending Act, 2015
Act No.18 of 2015	The Payment and Settlement Systems (Amendment) Act, 2015
Act No.19 of 2015	The Repealing and Amending (Second) Act, 2015
Act No.21of 2015	The Companies (Amendment) Act, 2015
Act No.22 of 2015	The Black Money (Undisclosed Foreign Income and Assets) and Imposition of Tax  Act, 2015
*	The Constitution (One Hundredth Amendment) Act, 2015 Sources:http://www.indiacode.nic.in/acts-in-pdf/2015/acts-2015.htm

Fabrication of Revenue Documents and False Affidavit's legal effect under the Indian Law

                                                                                Image Source: www.wisegeek.com

Now a days, Fabrication of Revenue Documents and creating a false Affidavit in respect of Family Tree to hide crucial legal heir in a Joint Family is a punishable offense under the Indian Penal Code. The word Affidavit means that declaration of facts in the absence of records and a written statement confirmed by oath or affirmation, for use as evidence in court. 

It is a punishable criminal offence under section  191,193,195,199 of IPC, 1860 to make false affidavit in one’s pleadings or submitted false affidavit or document in evidence before court of law. Criminal proceeding could  be initiated against accused person  under section 340 read with section 195 of CrPC 1973 before the criminal or civil court for giving false evidence.

The first Section of the IPC alleged against the accused is Section 420 and Forgery is defined under Section 463 IPC which reads as under:

"463. Forgery - Whoever makes any false documents or false electronic record or part of a document or electronic record, with intent to cause damage or injury to the public or to any person, or to support any claim or title, or to cause any person to part with property, or to enter into any express or implied contract, or with intent to commit fraud or that fraud may be committed, commits forgery."

We have to find as to how the change brought in by adding the above content could cause damage or injury to public or anybody or how it could support the claim or title or how it could cause any person to part with property or for that matter how there could be any intention to commit fraund.

The second Section alleged is Section 467 IPC which reads as under:

"467. Forgery of valuable security, will, etc.- Whoever forges a document which purports to be a valuable security, or a will, or an authority to adopt a son, or which purports to give authority to any person to make or transfer any valuable security, or to receive the principal, interest or dividends thereon, or to receive or delivery any money, movable property, or valuable security, or any document purporting to be an acquittance or receipt acknowledging the payment of money, or an acquittance or receipt for the delivery of any movable property or valuable security, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine."A mere look at the section would suggest that even this office could not be alleged against the appellant.

The next Section is Section 468 IPC which reads as under:

"468. Forgery for purpose of cheating - Whoever commits forgery, intending that the document or electronic record forged shall be used for the purpose of cheating, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."

This is the aggravated form of forgery which is punishable under Section 465 and is defined under Section 464 IPC. Section 464 speaks of making a false document. The Section reads as under:

464. Making a false document. A person is said to make a false document or false electronic record -

First. - Who dishonestly or fraudulently -

(a) makes, signs, seals or executes a document or part of a document;

(b) makes or transmits any electronic record or part of any electronic record;

(c) affixes any digital signature on any electronic record;

(d) makes any mark denoting the execution of a document or the authenticity of the digital signature.

With the intention of causing it to be believed that such document, or a part of document, electronic record or digital signature was made, signed, sealed, executed, transmitted or affixed by or by the authority of a person by whom or by whose authority he knows that it was not made, signed, sealed, executed or affixed; or Secondly. - Who, without lawful authority, dishonestly or fraudulently, by cancellation or otherwise, alters a document or an electronic record in any material part thereof, after it has been made, executed or affixed with digital signature either by himself or by any other person, whether such person be living or dead at the time of such alteration, or Thirdly - who dishonestly or fraudulently causes any person to sign, seal, execute or alter a document or an electronic record or to affix his digital signature on any electronic record knowing that such person by reason of unsoundness of mind or intoxication cannot, or that by reason of deception practiced upon him, he does not know the contents of the document or electronic record or the nature of the alteration."

(See for more clarity Parminder Kaur vs State Of U.P. & Anr on 26 October, 2009 these section used herein as per the requirement of title)

Occupancy Certificate for Apartment Flat in BMRDA Jurisdiction is mandatory? query answered by me at kaanoon.com