4.

1 manufacturing process
Section 2(k) in The Factories Act, 1948
(k) “manufacturing process” means any process for—
(i) making, altering, repairing, ornamenting, finishing, packing, oiling, washing, cleaning, breaking
up, demolishing, or otherwise treating or adapting any article or substance with a view to its use,
sale, transport, delivery or disposal,
[(ii) pumping oil, water, sewage or any other substance; or]
(iii) generating, transforming or transmitting power; or
[(iv) composing types for printing, printing by letter press, lithography, photogravure or other
similar process or book binding;] 4 [or]
(v) constructing, reconstructing, repairing, refitting, finishing or breaking up ships or
vessels; [or] [(vi) preserving or storing any article in cold storage;]

The definition is quite important and it has been the subject of judicial interpretation in large number of
cases: The Factories Act, 1948.
The definition of manufacturing process is exhaustive. Under the present definition even transporting,
washing, cleaning, oiling and packing which do not involve any transformation as such which is
necessary to constitute manufacturing process in its generic sense, are nonetheless treated as
manufacturing process.
Madras High Court in the case of In re. Seshadrinatha Sarma, 1966 (2) LLJ 235, held that to constitute a
manufacture there should not be essentially some kind of transformation of substance and the article
need not become commercially as another and different article from that at which it begins its existence
so long as there has been an indisputable transformation of substance by the use of machinery and
transformed substance is commercially marketable.
 Division Bench of A.P. High Court held that to determine where certain premises is factory, it is
necessary that it should carry on manufacturing process and it does not require that the process should
end in a substance being manufactured (Alkali Metals (P) Ltd. v. ESI Corpn., 1976 Lab.I.C.186). In
another case it was observed that manufacturing process merely refers to particular business carried on
and does not necessarily refer to the production of some article. The works of laundry and carpet beating
were held to involve manufacturing process. A process employed for purpose of pumping water is
manufacturing process. Each of the words in the definition has got independent meaning which itself
constitutes manufacturing process. The Factories Act, 1948.
Following processes have been held to be manufacturing processes:
 Sun-cured tobacco leaves subjected to processes of moistening, stripping, breaking up, adaption,
packing, with a view to transport to companys main factory for their use in manufacturing cigarette
(V.P. Gopala Rao v. Public Prosecutor, AIR 1970 S.C. 66).
 The operation of peeling, washing etc., of prawns for putting them in cold storage is a process with a
view to the sale or use or disposal of the prawns (R.E.DSouza v. Krishnan Nair, 1968 F.J.R. 469)
 Stitching old gunny bags and making them fit for use.

1
 In paper factory, bankas grass packed into bundles manually and despatched to the factory.  Work
of garbling of pepper or curing ginger.
 Process carried out in salt works in converting sea water into salt.  Conversion of latex into sheet
rubber.
 A process employed for the purpose of pumping water.
 The work done on the bangles of cutting grooves in them which later would be filled with colouring,
is clearly a stage in ornamentation of the bangle with view to its subsequent use for sale.
 Preparation of soap in soap works.
 The making of Bidies.
 The raw film used in the preparation of movies is an article or a substance and when by the process
of tracing or adapting, after the sound are absorbed and the photos imprinted, it is rendered fit to be
screened in a cinema theatre, then such a change would come within the meaning of the term treating
or adapting any article or substance with a view to its use.
 Composing is a necessary part of printing process and hence it is a manufacturing process. It cannot
be said that the definition should be confined to the process by which impression is created on the
paper and to no other process preceding or succeeding the marking of the impression on the paper to
be printed. Everything that is necessary before or after complete process, would be included within
the definition of the word ‘manufacturing process’. The definition takes in all acts which bring in not
only some change in the article or substance but also the act done for the protection and maintenance
of such article by packing, oiling, washing, cleaning, etc. (P.Natrajan v. E.S.I. Corporation (1973) 26
FLR 19).  Preparation of food and beverages and its sale to members of a club (CCI v. ESIC, 1992
LAB IC 2029 Bom.).  Receiving products in bulk, in packing and packing as per clients
requirements (LLJ I 1998 Mad. 406).
 Construction of railway - use of raw materials like sleepers, bolts, loose rails etc. to adaptation of
their use for ultimately for laying down railway line (LAB IC 1999 SC 407; Lal Mohmd. v. Indian
Railway Construction Co. Ltd.). The Factories Act, 1948.
Following processes are not manufacturing processes:
 Exhibition of films process.
 Industrial school or Institute imparting training, producing cloth, not with a view to its sale.
 Receiving of news from various sources on a reel in a taleprinter of a newspaper office, is not a
manufacturing process in as much as news is not the article or substance to which Section 2(k)(i) has
referred.
 Any preliminary packing of raw material for delivering it to the factory (AIR 1969 Mad. 155). 
Finished goods and packing thereof: F. Hare v. State AIR 1955, 2710. The Factories Act, 1948.

2. Living wage
Supreme Court classified wages into:
 Living Wage (highest standard wages)
 Fair Wage
 Minimum Wage (lowest and minimum standard of wages)
Living Wage
 Justice Higgins: A wage which does not allow of the matrimonial condition and the maintenance
of about five persons in a home would not be treated as a living wage.

2
 Supreme Court in Kamani Metals & Alloys Ltd vs its Workmen (1967) said: Living Wage is a
wage which is not only sufficient to provide a standard family with food, shelter, clothing, medical
care and education of children, but also fair measure of frugal comfort with an ability to provide for
old age and evil days.
(1) Living Wages-Living wages has been defined differently by different people in different
countries. The best definition is given by Justice Higgins which reads "Living wage is a wage
sufficient to ensure the workman food, shelter, clothing, frugal comfort, provision for evil days
etc. as regard for the skill of an artisan, if he is one". According to Fair Wages Committee
Report: "The living wage should enable the male earner to provide himself and his family not
merely the basic essentials of food, clothing and shelter but a measure of frugal comfort
including education for the children, protection against ill-health, requirement of essential social
needs and measures of insurance against old age." Thus living wages means the provision for the
bare necessities plus certain amenities considered necessary for the wellbeing of the workers in
terms of his social status.
Article 43 of the Constitution of India states that the state shall endeavour to secure by suitable
legislation or economic organisation or in any other way to all workers a living wage, conditions
of work ensuring a decent standard of life and full enjoyment of pleasure and social and cultural
opportunities. Thus, Government of India has adopted as one of the directives of the principle of
slate policy to ensure living wages.

3. Doctrine of National Extension

The principal behind compensation to the

injured worker under the Employee’s StateInsurance Act 1948 and Workmen’s
Compensation Act, 1923 is consideredaccording to the Doctrine of NotionalExtension. This doctrine
throws light on thecourse of employment of a worker.

Section 3(1) Workmen’s Compensation Act, 1923

provides that the injury must be caused to workmanby an accident arising out of and in the course of
employment. Employment does not necessarily endswhen the tool down signal is given or when the
workman leaves the actual workshop. There is a notional extension at both the entry and exit timeand
space. As employment may end or may beginnot only when the employee begins to work orleaves his
tools but also when he used the means of access and egress to and from the place of employment.

4. Bonded Labour

Bonded labour has been defined as well as addressed as a prohibited practice in several international
conventions as well as a many Indian legislations. It is a system of forced (or partly forced) labour in
which a debtor enters (or presumed to have entered) into an agreement with the creditor. Owing to this
agreement, following are the end results:
1. Render services to the creditor (by himself or through a family member) for a specified (or
unspecified) period of time with no wages (or nominal wages).

3
 2. Forfeit the right to move freely.
3. Forfeit the right to appropriate or sell the product or property at the market value from his (or
his family members’) labour or service.
This definition has been provided in the Bonded Labour System (Abolition) Act 1976.
The said agreement of bonded labour results into an undeniable loss of freedom on part of the debtor.
However, the scope of ‘loss of freedom’, as used above has not been defined so what would be the
yardstick of this ‘loss of freedom’? The National Human Rights Commission has elucidated on the
scope in the following manner:
 Loss of freedom of employment or alternative avenues of employment to sustain a decent
livelihood.
 Loss of freedom to earn the minimum wage as notified by the Government of India.
 Loss of freedom to move from one part of the country to another.
So speaking in simple words, the system of bonded labour refers to a system wherein a creditor and a
debtor enter into an agreement of rendering services of the debtor as a mode of repayment of the said
amount. This agreement may lapse with time or may continue for an uncertain period of time.
This is also referred as a debt bondage or for the lack of a better word, debt slavery. It is important to
understand that not all the forms of bonded labour are forced but all the forms of bonded labour involve
a certain bondage. It is due to this bondage, the very Constitution of India abolishes the practice of
bonded labour.
As per Article 23 of the Indian Constitution, traffic in human beings and other forms of forced labour
are prohibited. Based on this constitutional provision, the Government of India passed The Bonded
Labour System (Abolition) Act, 1976. In this context, the Supreme Court of India deliberated in the
following words – “We are, therefore, of the view that when a person provides labour of service to
another for remuneration which is less than the minimum wage, the labour or service provided by him
clearly falls within the scope and ambit of the words “forced labour” under Article 23.”
As we can observe, the Supreme Court has well interpreted this constitutional provision and expanded
the scope of Article 23 in this case.
Constitutional Safeguards
Now that we are aware of what exactly is a system of bonded labour, let us delve further into the
constitutional safeguards. In the Constitution of India, there are a few safeguards which address the
system at hand.
1. Article 21 of the Indian Constitution – This is the most important and foremost safeguard
against any exploitation of human lives and their liberty. It is part of the Basic Structure of the
Constitution and cannot be amended. It secures the right to life and right to live with human
dignity to every person in India. So, any practice of bonded labour would be in contravention of
this Constitutional provision since bonded labour deprives a person of numerous liberties.
2. Article 23 of the Indian Constitution – As discussed above, the Constitution of India expressly
provides for the abolition of forced labour and prohibits this form of forced labour in the territory
of India. This not only prohibits bonded labour but also covers the practice of Begar and other
forms of human trafficking in India.
3. Article 39 of the Constitution – This is covered in Part IV of the Indian Constitution which
deals with the Directive Principles of State Policy is albeit not enforceable but are considered
irrefutable for the purpose of governance. This constitutional provision directs the State to secure

4
 the right to an adequate livelihood. It also directs the state to formulate its policies with an object
that no citizen is forced out of economic necessity to enter into avocations which are not suited to
them.
4. Article 42 of the Constitution – This is also a Directive Principle of State Policy which
states “The State shall make provision for securing just and humane conditions of work…” This
means that the state must ensure that every person has a working condition which are just and
humane for them. However, since it is part of Part IV, it cannot be enforced.
5. Article 43 of the Constitution – This directive directs the State to secure i.a. – conditions for
work ensuring a decent standard of life.

Unorganised Labour
Unorganised sector could be described as that part of the work force who have not been able to organise
in pursuit of a common objective because of constraints such as a) casual nature of employment b)
ignorance and illiteracy c) small size of establishments with low capital investment per person employed
d) scattered nature of establishments and e) superior strength of the employer operating singly or in
combination.7 The unorganised sector is in no way an independent and exclusive sector. It is linked to,
or in many cases depended on the organised sector and the rest of the economy through a variety of
linkages. It depends on the organised sector for few raw materials and other capital requirements,
generation of employment, marketing facilities, and so on. The sub contracting model is used by the
formal sector for engaging labour in the unorganised sector
Unorganised workers: “Unorganised workers consists of those working in the unorganised
enterprises or households, excluding regular workers with social security benefits, and the workers in the
formal sector without any employment/social security benefits provided by the employers”.
Unorganised worker means a home-based worker, selfemployed worker or a wage worker in the
unorganised sector and includes a worker in the organised sector who is not covered by any of the acts
mentioned in schedule II of the Act
The unorganised labour is characterised as follows:18 x It is in general a low wage and low earning
sector.
x Women constitute an important section of the workers in this sector.
Family labour is engaged in some occupations such as home-based ones.
x Economic activities, which engage child labour, fall within this sector.
x Migrant labour is involved in some sub-sectors.
x Piece-rate payment, home-based work and contractual work are increasing trends in this sector.
x Direct recruitment is on the decline. Some employees are engaged through contractors. An increasing
trend to recruit workers through contractors is visible in areas of home-based work. There is a sort of
convergence of home-based work and engagement in work through contractors.

Union rivalry
The system of multiple unionism resulted in inter union rivalry in different industries. The inter union rivalry
breaks the very purpose of the trade unions by weakening the strength of collective bargaining. 9 The state of
rivalry between two groups of the same union is said to be intra-union rivalry. Inter-union and intra-union rivalry
have been a potent cause of industrial disputes in the country. They are responsible for the weak bargaining power
of trade unions in collective bargaining. These rivalries are also responsible for the slow growth of the trade union
movement in the country.

5
 MULTIPLICITY OF TU AND INTER UNION RIVALRY:
The multiplicity of trade unions is a major problem among the trade unions. These multiple trade unionism is seen
mainly because of the political outsiders wanting to establish their unions for their own view of increasing their
political influence although in the urban areas. The existence of different conflicting or rival organisations, with
divergent political views, is greatly responsible for inadequate and unhealthy growth of the movement. Within a
single organisation one comes across a number of groups comprising or µinsiders and outsiders¶, µnew-comers¶,
and µold-timers¶, moderates¶ and radicals¶, and µhigh¶ and low caste¶ people. This develops small size unions
which are not helpful for the workers or employees and creates problems such as:
 Rivalry between the unions
 Lack of ability among the leaders and members.
 Low bargaining power.
 Lack of funds to help its members.

Lack of unity among workers.

India has the largest number of Trade Unions in the world but the rivalry between the unions or the inter-union
rivalry is a niggling problem. Inter-union and intra-union rivalry undermines the strength and solidarity of the
workers in many ways. An Inter-union rivalry is mainly because of the multiplicity of unions which ultimately
cuts at the very root of unionism, weakens the power of collective bargaining, and reduces the effectiveness of
workers in securing their legitimate rights. Therefore, there should be ³One union in one Industry´. Practically in
every important industry, there exists parallel and competing unions, e.g. on the Indian Railways, there are two
parallel Federations , the Indian Railway Men’s Federation and Indian National Federation of Railway-men. The
same case could be seen in the Textile Industry in Bombay, where there are two unions, the Girni Kamgar Union
(controlled by the CPI)and the Rashtria Mazdoor Sangh (controlled by the INTUC).As the trade unions are
functioning from the plant level, there is room for disagreement within the democratic structure of trade union.
Even the absence of any legal requirements in the greater part of the country to recognize any union as the sole
bargaining agent is a major factor which generates the wide-spread and a bitter trade union rivalry. This problem
may lead to Industrial Unrest, strikes, gheraos etc in the organisation

FUNCTIONS OF THE TRADE UNION:

o The trade unions are organisations of and for the workers and the main functions and
objectives of a trade union are summarised below:1.
o To safeguard workers against all sorts of exploitation by the employers, by union leaders
and by political parties.2.
o To protect workers from the atrocities and unfair practices of the management.3.
o To ensure healthy, safe and conducive working conditions, and adequate conditions of
work.4.
o To exert pressure for enhancement of rewards associated with the work only after making
a realistic assessment of its practical implications.5.
o To ensure a desirable standard to living by providing various types of social service ±
health, housing, educational, recreational, cooperative, etc. and by widening and
consolidating the social security measures.6.
o To guarantee a fair and square deal and social security measures.7.
o To remove the dissatisfaction and redress the grievances and complaints of workers.8.

6
 o To encourage worker¶s participation in the management of industrial organization and
trade union, and to foster labour-management cooperation.9.
o To make the workers conscious of their rights and duties.10.
o To impress upon works the need to exercise restraint in the use of rights and to enforce
them after realistically ascertaining their practical implications.11.
o To stress the significance of settling disputes through negotiation, joint consultation and
voluntary arbitration.12.
 The raise the status of trade union members in the industrial organization and in the society at
large.

Labour Welfare
Meaning of Labour Welfare:
Labour welfare means the voluntary efforts made by the employer to provide better conditions of
employment in their own industries. Its main object is to secure an improved standard of living for the
workers, which effects on the worker’s psychology and results in an increase in their productive
efficiencies.
Labour welfare improves physical, mental and moral conditions of worker. Labour welfare includes
housing, medical, educational, rest rooms, recreation, canteen, games and sports club facilities, adequate
wages, reasonable working hours, insurance etc.

By providing these facilities to the workers, efficiency increases considerably. These facilities create
confidence in the worker; he feels happy and thus takes more interest in the work.
It also provides goodwill and the relation between worker and employer becomes good, which reduces
indiscipline and helps to maintain industrial peace. When worker has full facilities, he will be free from
worries and will therefore work in the factory with full efforts and interest.

Insurance facility and good working conditions create atmosphere of security and feeling of insecurity is
removed from the mind of the worker and thus he takes more interest in his work. In present days
workers are very much worried due to their housing problems, inadequate wages and expensive
education.
If these problems are removed then a major part of worries of the workers will be removed and if his
cultural uplift by providing recreation facilities and adding cultural and social activities are looked after,
then worker will work with full heartedness and more interest devoting more physical and mental
efforts.

Importance of Labour Welfare:

1. It improves the moral and mental conditions of the workers by providing facilities like games, cultural
activities and recreation etc.
2. By providing facilities workers have more confidence in their employer, which leads to improve
industrial peace.
3. When workers are promoted in a systematic way and they are heard properly then they feel and
realize their duties towards enterprise.
4. By providing all these facilities, workers feel happy and become enthusiastic. Thus worker starts
taking much interest in his work, which leads to greater efficiency.
5. Noise and vibrations caused by the machines, fumes and dust, hotness, too much wetness and lack of
air ventilation are the main factors which affect the health of the worker seriously. Therefore periodical

7
check-up and medical-facility help to maintain the health of the workers and save the worker from
harmful effects. Thus when worker remains healthy, he will naturally work hard.

ILO: Its Organisational Structure and Objectives:

Labour mobility across the nations has been in practice for long times. In course of time, this has led to
international labour problems for various reasons and also underlined the need for understanding the
problems of international labour. In 1919, the ILO came into existence as a solution to this problem.
The ILO was born as a result of the peace conference at the end of World War I at Versailles on April
19, 1919. Being an original signatory of the treaty of peace, India became member of ILO in 1919 Itself
In fact, ILO is the only international organisation that survived the Second World War even after
dissolution of its parent body ‘the League of Nations’. Its main concern is to make the world know that
world peace is subject to be affected by unjust conditions of its labour. Thus, ILO deals with
international labour problems.
Objectives of the ILO:
The main objectives of ILO contained in the preamble to its constitution are to:
1. Provide social justice to workers.
2. Avoid injustice, depravation and exploitation of labour.
3. Build up human working conditions to the labour
In the 26th session of the International Labour Conference held at Philadelphia in April in 1944
during the Second World War, the principles of ILO were affirmed as follows:
1. Labour is not a commodity.
2. Freedom of expression and of association is essential to sustained growth.
3. Poverty anywhere constitutes a danger to prosperity everywhere.
4. War against want requires to be carried out by joint efforts by government, management and workers
together on equal status and with democratic traditions.
The objectives of the ILO were redefined at the Philadelphia conference in 1944. This was termed as
“Declaration of Philadelphia. The following 10 objectives were enunciated at the above Philadelphia.”
Conference:
1. Full employment and the raising of standards of living.
2. Employ workers on jobs for which they have adequate skill and satisfaction to work.
3. Provide training and development facilities to achieve the above objective.
4. Provide due share of profit as compensation to ensure a minimum level of living standard to all
employed and protection as and when needed.
5. Accept collective bargaining as a right of workers and a means of improving productivity between
employees and management.
6. Extend social security measures to provide a basic income to all in need and also medical cover.
7. Protect the life and health of workers in all occupations.
8. Provision for child welfare and maternity protection.
9. Provide adequate nutrition, housing and facilities for recreation and culture.
10. Provision for quality education and vocational opportunity.
As per the amendments of Constitution in 1945, the membership rules of ILO are as follows:

8
1. Any original member of UNO may become member of ILO by accepting its obligafi6ns of its
constitutions.
2. If a State is not the member of the UNO, the ILO confers on the ILC (Parliamentary Wing of the ILO)
the right to admit that state to membership which it had assumed de facto during the period of ILO with
League.
Retrenchment
Retrenchment has more to it than just termination of employment by a employer. There are a host of
legal provisions which govern the practice of retrenchment. Section 2 (oo) of the Industrial Disputes
Act, 1947 defines Retrenchment as -

” the termination by the employer of the service of a workman for any reason whatsoever, otherwise
than as a punishment inflicted by way of disciplinary action, but does not include -

(a) voluntary retirement of the workman, or

(b) retirement of the workman on reaching the age of superannuating if the contract of employment
between the employer and the workman concerned contains a stipulation in that behalf; or

(b) termination of the service of the workman as a result of the non-removal of the contract of
employment between the employer and the workman concerned on its expiry or of such contract being
terminated under a stipulation in that behalf contained therein; or

(c) termination of the service of a workman on the ground of continued ill-health;

The definition of retrenchment was not included in the Industrial Disputes Act, 1947 in its original form.
It was inserted by Amendment to the Act in 1953. Thus the Industrial Disputes A ct, 1947 provides for
certain conditions in which the termination of employment would not be considered as retrenchment. It
is intersting to note here that the provision (bb) to Section 2(oo) was inserted later through the
Amendment Act 49 of 1984. Section 2(oo)(bb) provides that termination of employment on non -
renewal of employment agreement upon its expiry shalll not be considered as ‘retrenchment’. Before
this provision was added to the Act, the Courts were of the opinion that non - renewal of such contracts
of employment would constitute retrenchment for the purpose of this Act. This opinion was expressed
by the Supreme Court in Hindustan Aluminum Corporation v. State of Orissa. It was later realized that
the judgment was a bad judgment and the provision (bb) was subsequently added to the section.

Some landmark case laws

The Supreme Court in Byram Pestonji Gariwala v. Union Bank of India and othershad restricted the
defintion of ‘Retrenchment’ under S.2(oo)(bb) to occur only when there is a ‘discharge of excess labor’
by the employer. Later the Supreme Court in State Bank of India v. N. Sundara Money, Punjab Land
Development and Reclamation Corporation Ltd., Chandigarh v. Presiding Officer, Labour Court,
Chandigarh and subsequent decisions rejected the narrow interpretation adopted by the Court in the
earlier decision and held that any retrenchment, as defined in Section 2(oo), means termination by the
employer of the service of a workman for any reason whatsoever otherwise than as a punishment
inflicted by way of disciplinary action and those expressly excluded by Clauses (a), (b) and (c) of the
definition. In view of these decisions, it cannot be said that retrenchment means termination by the
employer of the service of a workman as surplus labor.

9
The Supreme Court excluded closure from the scope of retrenchment in Hariprasad Shivshankar Shukla
vs. A.D. Divelkar. Further, in the State Bank of India vs. Sundara Money, the Supreme Court adopted
the literal meaning of retrenchment, which is exhaustive and comprehensive and held that the expression
"for any reason whatsoever" was very wide and admitted almost no exceptions. So, retrenchment means
termination of a worker's services for any reason whatsoever, other than those specified in Section 2(oo).

The Bombay High Court, in State Bank of India v. Sundaramony held that wherein the court held that an
analysis of the definition reveals four essential ingredients, namely

1) There must be a termination of the service of a workman.

2) The termination must be by the employer,
3) For any reason whatsoever, and
4) Otherwise than as by way of punishment inflicted by way of disciplinary action.

Procedure for calculation of retrenchment compensation

While effecting retrenchment of the workmen, it is obligatory on the part of the employer to pay
retrenchment compensation at the rate of 15 days wages (for every completed yaer) to be calculated at
the last drawn salary of an employee. The calculation of compenstation is to be based from the date of
appointment and in case an employee has completed 240 days, he will be entitled to 15 days
retrenchment compensation besides one month’s noice or salary in lieu thereof as if he has worked for
one year. 240 days includes Sundays or off days as well as festival or national holidays.

In case an employee has worked for more than one year, the procedure is that in case the subsequent
period of one year is less than six months then it will be counted as one year for calculation of
compenstation. While making calculations the period of notice is also to be taken into consideration.

Provisions related to retrenchment

Now that the law is settled on what retrenchment is, let us proceed to the provisions contained in the
Industrial Disputes Act, 1947, regarding the procedure to be followed in cases of retrenchment.

Condition precedent to retrenchment

Section 25F provides the conditions precedent to retrenchment. According to this section the employer
must satisfy the following conditions before retrenching an employee employed for a period of
continuous period of not less than one year -

(a) the workman has been given one months notice in writing indicating the reasons for retrenchment
and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the
period of the notice:

(b) the workman has been paid, at the time of retrenchment, compensation which shall be equivalent to
fifteen days average pay [for every completed year of continuous service] or any part thereof in excess
of six months;and

(c) notice in the prescribed manner is served on the appropriate Government [or such authority as may
be specified by the appropriate Government by notification in the Official Gazette].

Calculation of average pay is done by dividing the last drawn monthly salary by 25 and then multiplying
the dividend by 15 for every completed year of continuous work.

10
Section 25N also lays down the conditions precedent to retrenchment -

1) No workman employed in any industrial establishment to which this Chapter applies, who has been in
continuous service for not less than one year under an employer shall be retrenched by that employer
until,-

(a) the workman has been given three months notice in writing indicating the reasons for retrenchment
and the period of notice has expired, or the workman has been paid in lieu of such notice, wages for the
period of the notice; and

(b) the prior permission of the appropriate Government or such authority as may be specified by that
Government by notification in the Official Gazette (hereafter in this section referred to as the specified
authority) has been obtained on an application made in this behalf.

(2) An application for permission under sub-section (1) shall be made by the employer in the prescribed
manner stating clearly the reasons for the intended retrenchment and a copy of such application shall
also be served simultaneously on the workmen concerned in the prescribed manner.

(3) Where an application for permission under sub-section (1) has been made, the appropriate
Government or the specified authority, after making such inquiry as it thinks fit and after giving a
reasonable opportunity of being heard to the employer, the workmen concerned and the persons
interested in such retrenchment, may, having regard to the genuineness and adequacy of the reasons
stated by the employer, the interests of the workmen and all other relevant factors, by order and for
reasons to be recorded in writing, grant or refuse to grant such permission and a copy of such order shall
be communicated to the employer and the workmen.

(4) Where an application for permission has been made under sub-section (1) and the appropriate
Government or the specified authority does not communicate the order granting or refusing to grant
permission to the employer within a period of sixty days from the date on which such application is
made, the permission applied for shall be deemed to have been granted on the expiration of the said
period of sixty days.

Procedure of retrenchment
Section 25G lays down the procedure of retrenchment. Where any workman in an industrial
establishment, who is a citizen of India, is to be retrenched and he belongs to a particular category of
workmen in that establishment, in the absence of any agreement between the employer and the workman
in this behalf, the employer shall ordinarily retrench the workman who was the last person to be
employed in that category, unless for reasons to be recorded the employer retrenches any other
workman. The employer is also required to maintain a seniority list of the workmen. The system of last
in first out is to be followed in retrenching workmen.

Family Law T1

Bequeathable third
An heirless Muslim can bequeath his entire property. In case, his wife, is the only heir, he can bequeath
all his properties minus the share of his wife (as per Koranic table).

Bequeathable one-third:

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The bequeathable one-third means a third of the estate of a testator as it is left after the payment of his
funeral expenses, debts and other charges. The law in this respect may be stated thus:

(i) All schools of Muslim law, except the Ithana Ashari School, hold that the bequest of more than the
bequethable one-third is invalid unless consented to by the heirs after the death of the testator. Consent
can be inferred from the conduct.

Mere silence by other heirs by not participating in the concerned proceedings and by remaining ex parte
cannot be considered as implied consent.

ADVERTISEMENTS:

(ii) According to the Ithana Ashari School, the consent of the heirs, to validate a bequest of more than
one-third, may be given even during the life time of the testator, and it does not need ratification after
the death of the testator.

The Ithana Asharis also hold that a bequest of any part of the estate even more than bequeathable one
third may be made for the performance of the obligatory religious duties or by way of muzaribat or
qeraz (both words have the same meaning, an enterprise in which one invests his capital and another his
labour with mutual participation in profit is known as mazari bat or qeraz) on the terms of equal division
of profits between the legatee and the heirs.

(iii) Under a valid custom, a Muslim may be allowed to dispose of his entire property under his will. The
Shariat Act, 1937 does not apply to wills, and, therefore, a Muslim, who has the power to dispose of his
entire property under a will, can do so even now. (See Chapter I of this work for details).

(iv) If a testator has no heirs, he may dispose of his entire property by a will. The right of the State to
take the property by escheat does not prevent an heirless testator from bequeathing his entire property.

ADVERTISEMENTS:

(v) A bequest of more than one-third may be validated by the consent of heirs. The rationale behind this
rule is that the limitation on the testator’s power of disposition is solely for the benefit of the heirs, and if
they want to forego the benefit, they are free to do so.

The consent of heirs may be express or implied. For instance, P bequeaths his entire property in favour
of X, a stranger. The will is attested by P’s two sons, A and B, who are the only heirs.

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After P’s death X enters into possession of the property and recovers rents with the full knowledge of A
and B. These facts are sufficient to indicate the implied consent on the part of A and B. Consent once
given cannot be rescinded.

(vi) Where a testator dies leaving behind only a wife/husband as the sole heir and no blood relations,
then if the testator is a male, he can bequeath 5/6 of his estate, and if the testator is a female, she can
bequeath 2/3 of the estate. For instance, a Muslim woman makes a will under which she bequeaths one-
half of her properties to her husband. She dies leaving behind her husband and no blood relation.

Under Muslim law, bequests to the heir upto 1/3 of property are valid. Thus, the husband will take 1/3 of
the estate (the bequeathable 1/3 under the will and 1/2 of the remaining as an heir. In all he takes 2/3—
1/3 under the will and 1/3 as an heir).

Ordinarily, the remaining 1/3 will go to the State by escheat, but on account of the bequest of 1/2 to him
(a woman can bequeath upto 2/3 under these circumstances), he again takes 1/6 of the remaining 1/3 to
complete the one-half estate that is bequeathed to him. In the result the husband takes 1/3 as heir and 1/3
+ 1/6, as a legatee, Le, in all he takes 5/6; the remaining 1/6 goes to the State by escheat.

(vii) An heirless Muslim can bequest his entire property. A Muslim who has only his wife as an heir can
bequest the entire property minus the share of the wife.

(viii) If a Muslim had married or got his marriage registered under the Special Marriage Act, 1954, then
Muslim law of succession does not apply to him. He is governed by the Succession Act, 1925, and,
therefore, he can bequeath his entire property by a will.

Bequeathable One-third:– It means a third of the estate of the testator as is left after the payment of the
funeral expenses, other charges and debts of the deceased (testator). All schools of Muslim Law except
the Ithana Ashari School lay down that bequest of more than one third unless consented to by the heirs is
invalid or a custom or usage so permits.

Rule of SURVIVORSHIP
The living of one of two or more persons after the death of the other or others. Survivorship is where a
person becomes entitled to property by reason of his having survived another person who had an interest
In it. The most familiar example is in the case of joint tenants, the rule being that on the death of one of
two joint tenants the whole property passes to the survivor.
When one of the joint tenants dies, the right of survivorship takes effect, passing the deceased tenant's in
terest in theproperty to the other joint tenant or tenants. Husbands and wives often create joint tenancies 
for co-ownership of their realproperty; under the common law this form of joint tenancy is called a Tena
ncy by the
Entirety. It is an attractive legal optionbecause of the right of survivorship. Upon one spouse's death, the 
right of survivorship takes precedence over claims on theproperty by the deceased person's heirs, benefic
iaries, and creditors. The right passes outside probate—the procedure bywhich a deceased person's will i

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 s approved—so legal professionals sometimes call joint tenancy a probate avoidance device.The dissolut
ion of a marriage usually ends any subsequent claim of right of survivorship.
A joint tenancy continues as long as more than one joint tenant survives. Upon the death of one tenant, t
he shares of theother tenants increase equally; in a sense they absorb the ownership interest of the deceas
ed person. This automaticprocess continues until only one surviving joint tenant is left; this survivor bec
omes the sole owner of the property.
Courts frequently hear claims based on the right of survivorship. The surviving joint tenant furnishes pro
of of the death of theother joint tenant as well as valid legal titles indicating that the relevant real propert
y was held in a joint tenancy.
Documentary evidence establishing the existence of a joint tenancy is generally required to overcome a 
challenge to the rightof survivorship.
 The right of survivorship is a particularly important and powerful legal privilege, as it will take
precedence over all other types of claims to a property. 
 The right to survivorship even supersedes probate court, or the legal process of determining a
deceased person’s division and ownership of estate. 
 The right of survivorship results in a change in ownership of the property in question much faster
than the probate process. While probate can take months or even years, the right to survivorship settles
the matter of property ownership automatically.
Right to survivorship is much more expedient than probate in transferring the title to a property’s co-
owner. However, the right of survivorship is something you can only have with proper joint tenancy
between the two parties. A contract between two or more people that specifies each person’s
simultaneous ownership of the same real or personal property is required for the right of survivorship to
exist. The joint tenancy needs to be legal and official, preferably with a written contract and other valid
documentation. If a proper joint tenancy exists, the right to survivorship exists.

Full blood and half blood

Section 3(1) in The Hindu Succession Act, 1956 explains: (i) two persons are said to be related to each
other by full blood when they are descended from a common ancestor by the same wife, and by half
blood when they are descended from a common ancestor but; by different wives;
Section 18 provides that “Heirs related to an intestate by full blood shall be preferred to heirs by half
blood, if the nature of relationship is the same in every other respect.” The Section lays down a rule of
general applicability to heirs male and female alike. Thus where one of the heirs is agnate and the other
is a cognate or one of the heir belongs to class I of the Schedule and the other belongs to the category of
class II heirs, the above rule would not apply. Similarly where the degrees of ascent and descent are not
the same under Section 13 of the Act, the Section will not apply. It is noteworthy that the rule under the
present section is the substantial reproduction of old Hindu law.

The relatives related by full blood shall be preferred to those related by half blood. The section does not
make any discrimination between male and female heirs provided they are descendants of the same
degree.

The Bombay High Court in the case of Vamam Govinda Shindor v. Gopal Babu Chakradeo overruled
Purushottam Raman Gokhale v. Srivad Ram Chandra and held where the question of succession

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between the real sister and cousin sister arises, the real sister (sister by full blood) would exclude the
cousin (sister by half blood). Where the male and female heirs are of the same degree, no descrimination
shall be made and they will inherit the property together and divide equally.

Similarly in Narayan v. Puspa Ranjini, the Kerala High Court held that where there is question of
succession between sister by full blood and brother by half blood, the sister by full blood shall exclude
the brother by half blood.

A maternal uncle by full blood has been held to be a preferential heir to a maternal uncle by half blood.
Uncle by full blood shall be preferred to uncle by half blood to inherit the property.

Notional partition
On the death of a member of a joint Hindu family, his share in the family property will not pass on to the
other members but will devolve as per the bequests made in his will or as per the rules of intestate
succession that would govern him. So, a member’s share in a joint Hindu family property can be
bequeathed on the basis of a notional partition.

A Hindu coparcenary (joint ownership) property should be divided on "notional partition" if the father
dies intestate (without a will) as if the partition was effected just before his death, the Supreme Court has
ruled.

Settling an important aspect of the Hindu Succession Act, a Division Bench of Justices B.N. Agrawal
and P.P. Naolekar said in an order "the operation of the notional partition should be only for the
purposes of devolution of interests of the deceased in the coparcenary property".

One Nagar Mal adopted Nemi Chand as his son. Mal died in 1989 without a will and his two daughters
claimed equal share along with the adopted son Chand. Courts below accepted one-third partition of the
properties amongst all the three wards of the deceased.

On appeal, the Supreme Court said since Mal and Chand had formed the coparcenary, a notional
partition should be done as it having been effected just before the death of Mal.

The apex court concluded that 50 per cent of the property would have to be notionally partitioned
between Mal and his adopted son Chand on 50-50 basis and after the death of Mal his share of the 50
per cent property should be divided equally amongst the three heirs.

Codicil Definition
Section 2(b) of the Indian Succession Act defines a codicil as:
‘Codicil’ means an instrument made in relation to a Will, and explaining, altering or adding to its
disposition, and shall be deemed to form part of the Will”.
How to execute a codicil?

A codicil is a document that amends, rather than replaces, a previously executed will. Thus, it is an
instrument which is made in relation to a will that explains alterations and additions to its disposition. This

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document is considered important as it is deemed to form part of the will. For instance, in situations a will
has been made, the testator may still want to make some changes in the already drafted will.

However, for that he needs to do it through a codicil wherein he may even cancel the entire earlier will and
make a fresh will. Also, he may incorporate the desired changes, or, he may alter only the relevant parts of
the will suitably as well.

Thus, the scope of codicil is immense; for instance, it is very much a part of will; however, it is valid only if it
is executed and attested in the same manner as a Will. From the various judgments from the Supreme Court
it’s clear that Codicil is a supplementary document to the will and, cannot stand independently.
Also, any amendments made by a codicil may add or revoke small provisions that may include inter alia
changing executors, completely change the majority, the gifts under the will.
How is Codicil executed?
A codicil must be executed similar to Will, being written and attested by two witnesses. Further, as a
codicil is a part of the Will, reference must be made to the Will in interpreting the provisions of the Will
and vice-versa. Like a Will, a codicil can be altered, added to and further explained by another codicil
by proper execution and attestation by witnesses.
Like will, each codicil also goes through the scrutiny regarding its execution. For instance, it must
conform to the same legal requirements as the original will e.g. the codicil must have the signatures of
the testator and, typically, two or three disinterested witnesses. Also, a codicil should be executed and
attested like a Will as in all sense it is similar to a Will and is governed by the same rules as a Will.
Thus, though an Indian will is a static document, it can be changed through codicil over time as the
circumstances in your life and your family change. Codicil basically states what items of your will you
are changing. Interestingly, codicil should be kept together with Will. In situation you are making
substantial changes to your will, codicil could be bad idea as it’s better to go for a new Will.
Also, as you can revoke your codicil there is no issue that you have made a codicil that is not suiting to
the current situation and requirement. You just need to follow the process that you follow when writing
down your Will. If you revoke your codicil, like will, it is assumed that you never had drafted a codicil
at all.

Per stirpes 
Per stirpes (/pɜːr ˈstɜːrpiːz/; "by branch") is a legal term from Latin. An estate of a decedent is
distributed per stirpes if each branch of the family is to receive an equal share of an estate. When the
heir in the first generation of a branch predeceased the decedent, the share that would have been given to
the heir would be distributed among the heir's issue in equal shares. It may also be known as strict per
stirpes or the old English approach,and differs from distribution per capita, as members of the same
generation may inherit different amounts.

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Figure 1. A's estate is divided equally between each of the three branches. B, Cand D each receive one-
third. As B pre-deceased A, B's two children - B1 and B2 - each receive one-half of B's share, equivalent
to one-sixth of the estate.
Example 1A: The testator A, specifies in his will that his estate is to be divided among his descendants
in equal shares per stirpes. Ahas three children, B, C, and D. B is already dead, but has left two children
(grandchildren of A), B1 and B2. When A's will is executed, under a distribution per
stirpes, C and D each receive one-third of the estate, and B1 and B2 each receive one-
sixth. B1 and B2constitute one "branch" of the family, and collectively receive a share equal to the
shares received by C and D as branches (figure 1).

Wills Under Indian Succession Act, 1925

-+
Will means the legal declaration of the intention of a person with respect to his property, which he
desires to take effect after his death. It is a unilateral document and takes effect after the death of the
person making it. It can be revoked or altered by the maker of it at any time he is competent to dispose
of his property.

A will made by a Hindu, Buddhist, Sikh or Jain is governed by the provisions of the Indian Succession
Act, 1925. However Mohammedan are not governed by the Indian Succession Act, 1925 and they can
dispose their property according to Muslim Law.
Who can make a will
Every person who is of sound mind and is not a minor can make a will.
Persons who are deaf or dumb or blind can make a will provided they are able to know what they do by
it.
A person who is ordinarily insane may make a will during an interval in which he is of sound mind.
No person can make a will while he is in such a state of mind, whether arising from intoxication or from
illness or from any other cause, that he does not know what he is doing.
Execution of A Will
Every person, not being a soldier employed in an expedition or engaged in warfare, or an airman so
employed or engaged, or a marine at sea shall execute his will accordingly.
He shall sign or fix his mark to the will or it shall be signed by some other person in his presence and by
his direction
The signature or mark should be so placed that it shall appear that it was intended thereby to give effect
to the writing as a will
The will shall be attested by two or more witnesses, each of whom has seen the testator sign or affix his
mark on the will or Has seen some other person sign the will, in the presence and by the direction of the
testator or Has received from the testator a personal acknowledgement of his signature or mark, or of the
signature such other person;
Each of the witnesses shall sign the will in the presence of the testator, but it shall not be necessary that
more than one witnesses be present at the same time, and no particular form of attestation is necessary.
Declaration of intention.
WHAT PROPERTY CAN BE DISPOSED BY A WILL

Any movable or immovable property can be disposed of by a will by its owner.

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Beneficiary Under A Will
Any person capable of holding property can be devisee under a will and therefore a minor, lunatic, a
corporation, a Hindu deity or any other juristic person can be a devisee.

RESTRICTIONS:

The Indian Succession Act imposes restrictions in certain cases.

Transfer to person by particular description, who is not in existence at testator's death.
Where a bequest is made to a person by a particular description, and there is no person in existence at
the testator's death who answers that description, the bequest is void.

For example, If A bequests 1000 rupees to the eldest son of B. At the death of A, the testator, B has no
son. The bequest is void.
Transfer to person not in existence at testator's death subject to prior bequest.
Where a bequest is made to a person not in existence at the time of the testator's death, subject to a prior
bequest contained in the will, the later bequest shall be void, unless it comprises the whole of the
remaining interest of the testator in the thing be queathed.

For example, If property is bequeathed to A for life, and after his death to his eldest son for life, and
after the later's death to his eldest son. At the time of the testator's death, A has no son. Here the bequest
to A's eldest son is a bequest to a person not in existence at the testators death. It is not a bequest of the
whole interest that remains to the testator. The bequest to A's eldest son for life is void.
Transfer made to create perpetuity.
No bequest is valid whereby the vesting of the thing bequeathed may be delayed beyond the lifetime of
one or more persons living at the testator's death and the minority of some person who shall be in
existence at the expiration of that period, and to whom, if he attains full age, the thing bequeathed is to
belong.

For example, A fund is given to A for his life and after his death to B for his life; and after B's death to
such of the sons of B as shall first attain the age of 25. A and B survive the testator. The son of B who
shall first attain the age of 25 may be a son born after the death of the testator; and such son may not
attain age of 25 until more than 18 years have elapsed from the death of and B. The vesting of fund may
thus be delayed beyond the lifetime of A and B and the minority of the sons of B. The bequest after B's
death is void.
Transfer to a class some of whom may come under above rules.
If a bequest is made to a class of persons with regard to some of whom it is inoperative by reasons of the
fact that the person is not in existence at the testator's death or to create perpetuity, such bequest shall be
void in regard to those persons only and not in regard to the whole class.

A fund is bequeathed to A for life, and after his death to all his children who shall attain the age of 25. A
survives the testator, and has some children living at the testator's death. Each child of A's living at the
testator's death must attain the age of 25 (if at all) within the limits allowed for a bequest. But A may
have children after the testator's decease, some of whom may not attain the age of 25 until more than 18
years have elapsed after the decease of A. the bequest to A's children, therefore, is inoperative as to any
child born after the testator's death; and in regard to those who do not attain the age of 25 within 18
years after A' death, but is operative in regard to the other children of A.
Transfer to take effect on failure of prior Transfer.

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Where by reason of any of the rules contained in sections 113 and 114 and bequest in favour of a person
of a class of persons is void in regard to such person or the whole of such class, any bequest contained in
the same will and intended to take effect after or upon failure of such prior bequest is also void.

A fund is bequeathed to A for his life, and after his death to such of his sons and shall first attain the age
of 25, for his life, and after the decease of such son to B. A and B survive the testator. The bequest to B
is intended to take effect after the bequest to such of the sons of A as shall first attain the age of 25.The
bequest to B is void.
Effect of direction for accumulation.
Where the terms of a will direct that the income arising from any property shall be accumulation either
wholly or in part during any period longer than a period of eighteen years from the death of the testator,
such direction shall, save as hereinafter provided be void to the extent to which the period during which
the accumulation is directed exceeds the aforesaid period, and at the end of such period of eighteen years
the property and the income thereof shall be disposed of as if the period during which the accumulation
has been directed to be made had elapsed.

However, this will not affect any direction for accumulation for the purpose of-
The payment of the debts of the testator or any other person taking any interest under the will; orThe
provision of portions for children or remoter issue of the testator or of any other person taking any
interest under the will; orThe preservation or maintenance of any property bequeathed; and such
direction may be made accordingly. This rule provides that accumulation of income arising from any
property bequeathed should come to an end or be determinable on the beneficiaries attaining vested
interests within the perpetuity period. If the direction in the will for accumulation exceeds 18 years, the
direction will be void to the extent of the period which exceeds 18 years. At the end of 18 years, the
property and the income will be payable as per directions in the will. However, this rule is not applicable
where the direction in a will is for the purposes of payment of the testator's debts or of any other person
taking interest under the will or for the raising portion for any child, children or remoter issue of the
testator or for preserving or maintaining houses and tenements or charity.
Revocation of a will/Loss of a will
A will can be revoked in the following manner
By execution of a subsequent will
By some writing and declaring an intention to revoke the will
By burning of the will
By tearing of the will
Otherwise destroying the will
When a will is evoked by a subsequent will, the will so revoked will have no operation

LOSS OF A WILL

If a will is lost it will be presumed to be revoked. If the will was seen with the testator, but could not be
found after the death testator, it will be presumed that the same has been revoked by the testator by
destroying the same.
Registration
The registration of a will is not compulsory. However, the testator may register the will or deposit the
will in a sealed cover with the Registrar. There is no time limit for registration.
Essentials of a will – The following are the essentials of a will.

Legal declaration by the executant

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The declaration by the executant of the will, must be legal viz. should be in conformity with the
provisions of the Indian Succession Act, 1925 and must be by a person competent to make it.

Competency of person to make the will

Every person of sound mind not being a minor can execute a will. Persons who are deaf, dumb or blind
are not incapacitated for making a will, if they are able to know what they do by it. A person who is
ordinarily insane may make a will during an interval in which he is of sound mind. No person can make
a will, while he is in such a state of mind, whether arising from intoxication or from illness or from any
other cause that he does not know what he is doing. The testator should be capable of sound and
disposing mind and memory.

The declaration should be relating to the testator’s property and the testator should intend to dispose off
his property after his death. If the declaration is not to take effect or if the testator wanted to carry out
the intention made in the declaration immediately, the instrument will not be a will, the will should be
revocable during the lifetime of the testator. If the instrument is intended to come into effect with
immediate effect and to be final and irrevocable, it will not be a will.

Law relating to wills

The will made by any Hindu, Buddhist, Sikh or Jain is governed by the provisions of Chapter VI of
Indian Succession Act, 1925. However, the provisions of the Indian Succession Act, 1925 are not
applicable to Mohammadans, who can dispose off the property by a will in accordance with the Muslim
Law. Under Muslim Law, the will executed by a Mohammadan is not required to be probated.

Execution of will
Every testator, not being a soldier employed in an expedition or engaged in actual warfare, or an airman
so employed or engaged, or a mariner at sea, shall execute his will according to the rules.

Signature of the testator on the will

The testator shall sign or shall affix his mark to the will or it shall be signed by some other person in his
presence and by his direction. The will should be dated.

Attestation
‘The will shall be attested by two or more witnesses. The attestation by the witnesses should be by the
signatures of the witnesses and not by their mark and the attestation should be done after the testator has
executed the will and not before. The attesting witnesses need not know the contents of the will and the
testator need not disclose the nature or contents of the document.

Property, which can be, disposed off by Will

Any movable or immovable property can be disposed off by a will by its owner. Under Mitakshara Law,
a Hindu coparcener could not dispose off his undivided coparcenary property by will, even if other
coparceners consented to it. But section 30 of Hindu Succession Act, 1956 provides that any Hindu may
dispose off by will or other testamentary disposition any property, which is capable of being so,
disposed of by him in accordance with law. The interest of a male Hindu in a Mitakshara coparcenary
property is deemed to be property capable of being disposed off by him.

Who can be a devisee under a will

Any person capable of holding property can be a devisee under a will and therefore a minor, lunatic, a
corporation, a Hindu deity and other juristic person can be a devisee. Sections 112 to 117 of Indian

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Succession Act, 1925 put some restrictions on the disposition of property by will in certain cases.
Dispositions of property by will in some cases have been declared void.

Wills by Muslims
Under Muslim Law, every adult Muslim of sound mind can make a will. A minor or a lunatic is not
competent to execute a will. Though under Muslim Law, a person gets the majority at the age of 15
years, but in India, the case of will is governed by the Indian Majority Act according to which the
minority terminates at the age of 18 years, but if the guardian has been appointed by the Court for the
minor, the minority will terminate at the age of 21 years. The legatee can be any person capable of
holding property and bequest can be made to non-Muslim, institution, and charitable purposes. A
bequest can be made to an unborn person and a will in favour of a child who is born within six months
of the date of making the will can be a legatee. But according to Shia Law, a bequest to a child in the
womb is valid, even if the child is in the longest period of gestation i.e., ten lunar months.

The property bequeathed must be capable of being transferred and the testator should be the owner of
the said property. The property bequeathed should be in existence at the time of death of the testator,
even if it was not in existence at the time of execution of the will. A Muslim cannot bequest his property
in favour of his own heir, unless the other heirs consent to the bequest after the death of the testator. The
person should be legal heir at the time of the death of the testator. However, under Shia Law, a testator
may bequest in favour of his heir so long as it does not exceed one third of his estate and such bequest is
valid even without the consent of other heirs. The consent can be given before or after the death of the
testator. But if the entire estate is bequeathed to one heir excluding other heirs entirely from inheritance,
the bequest will be void in its entirety. According to Sunni Law, the consent by the heirs should be given
after the death of the testator and the consent given during the lifetime of the testator is of no legal
effect. Under Shia Law, the consent by the heirs should be free and a consent given under undue
influence fraud, coercion or misrepresentation is no consent and the person who has given such consent
is not bound by such consent. The consent by the heirs can be given either expressly or impliedly. If the
heirs attest the will and acquiesce in the legatee taking possession of the property bequeathed, this is
considered as sufficient consent. If the heirs do not question the will for a very long time and the
legatees take and enjoy the property, the conduct of heirs will amount to consent. If some heirs give their
consent, the shares of the consenting heirs will be bound and the legacy in excess is payable out of the
shares of the consenting heirs. When the heir gives his consent to the bequest, he cannot rescind it later
on.

Principle of rate able abatement in case heirs does not give consent.
Under Hanafi Law, if a Mohammedan bequest of more than one?third of the property and the heirs does
not consent to the same, the shares are reduced proportionately to bring it down to one?third. Bequests
for pious purposes have no precedence over secular purposes, and are decreased proportionately.
Bequests for pious purposes are classified into three categories:

(i) Bequest for faraiz i.e. purposes expressly ordained in the Koran viz. hajj, zakat and expiation for
prayers missed by a Muslim.

(ii) Bequest for waji-bait i.e. purposes not expressly ordained in the Koran, but which are proper viz.
charity given for breaking rozas.

(iii) Bequest for nawafali i.e. purposes-deemed pious by the testator, viz. bequest for constructing a
mosque, inn for travellers or bequest to poor. The bequests of the first category take precedence over

21
bequests of the second and the third category and bequests of the second category take precedence over
those of the third.

Under Shia Law, the principle of rate able abatement is not applicable and the bequests made prior in
date take priority over those later in date. But if the bequest is made by the same will, the latter bequest
would be a revocation of an earlier bequest.

No writing necessary
Under Muslim law, a will may be made either orally or in writing and though in writing, it does not
require to be signed or attested. No particular form is necessary for making a will, if the intention of the
testator is sufficiently ascertained. Though oral will is possible, the burden to establish an oral will is
very heavy and the will should be proved by the person who asserts it with utmost precision and with
every circumstance considering time and place.

But if the marriage of a Muslim has been held under Special Marriage Act, 1954, the provisions of
Indian Succession Act, 1925 shall be applicable and he cannot execute a will under Muslim law.

Revocation of will by a Muslim

The testator may revoke his will at any time either expressly or impliedly. The express revocation may
be either oral or in writing. The will can be revoked impliedly by testator transferring or destroying
completely altering the subject matter of the will or by giving the same property to someone else by
another will.

Registration of wills
Though it is not necessary to register a will, but the Law recognizes a Registered will when the
execution of a will is disputed and when there is an unregistered will. The provisions relating to
registration of the will have been given in sections 40 and 41 of the Indian Registration Act. The
testator, after his death, or any person claiming as executor or otherwise under a will, may present it to
any Registrar or Sub Registrar for registration. No time limit has been prescribed for registering the will
and a will may be presented for registration at any time.’ A will presented for registration by the testator
may be registered in the same manner as any other document. A will presented for registration by any
other person entitled to present it shall be registered, if the registering officer is satisfied

(a) that the will or authority was executed by the testator;

(b) that the testator is dead; and
(c) that the person presenting the will is entitled to present the same.

The registration of will is not the proof of the testamentary capacity of the testator, as the Registrar is not
required to make an enquiry about the capacity of the testator except in case the testator appears to him
to be a minor or an idiot or lunatic.

Codicil
Codicil means an instrument made in relation to a will and explaining, altering or adding to its
dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight
changes in the will, which has already been executed. A codicil cannot alter a will more than what is
necessary to carry out the testator’s intention as evidenced by the will and the codicil.

Codicil means an instrument made in relation to a will and explaining, altering or adding to its
dispositions and shall be deemed to form part of the will. The codicil is generally made to make slight

22
changes in the will, which has already been executed. A codicil cannot alter a will more than what is
necessary to carry out the testator’s intention as evidenced by the will and the codicil

FM2
Alienation
In property law, alienation is the voluntary act of an owner of some property disposing of the property,
while alienable is the capacity for a piece of property or a property right to be sold or otherwise
transferred from one party to another.[1][2][3][4] Most property is alienable, but some may be subject to
restraints on alienation. In England under the feudal system, land was generally transferred by
subinfeudation and alienation required licence from the overlord. Some objects are incapable of being
regarded as property and are inalienable, such as people and body parts. Aboriginal title is one example
of inalienability (save to the Crown) in common law jurisdictions. A similar concept is non-
transferability, such as tickets. Rights commonly described as a licence or permit are generally only
personal and are not assignable. However, they are alienable in the sense that they can generally be
surrendered.

Alienation of separate property by a Hindu, whether governed by the Mitakshara School or any of its
sub-schools or the Dayabhaga School, has full and absolute powers over it. The Transfer of Property Act
governs such alienations.

The distinguishing feature of this power is that it was traditionally given only to the father or the Karta
and that, but the power itself is near autocratic as it allows them to sell, gift or mortgage the whole joint
family property without the consent of any coparcener, this is why the ancient texts have specified
several conditions which alone would justify such acts of the manager. These conditions have changed
over the centuries to keep in pace with the changing conditions and the ancient rules have been modified
by the Privy Council in accordance with the principles of equity, justice and good conscience.

Alienation for Discharge of his Personal Debts

Father has the power to alienate the family property for the discharge of his antecedent debts, which not
being immoral or illegal, the sons are under a pious obligation to discharge.

23
Father can alienate family property to pay his personal debts if the following two conditions are
fulfilled-

1. The debt is antecedent.

2. The debt should not be Avyavaharik i.e. for unethical or immoral purposes.

‘Pious obligation’

‘Pious obligation’ means the moral liability of sons to pay off or discharge their father’s non-
avyavaharik debts. The debts borrowed may not be of legal necessity or for benefit of estate. Thus, if the
father is the Karta of a Hindu joint family, he may alienate the coparcenary property for discharging the
antecedent debts. The sons are under the obligation to recover such alienated property by repaying the
debts.

The ancient doctrine of pious obligation was governed by Smriti law. There is a pious obligation on the
sons and grandsons to pay the debts contracted by the father and grandfather. According to Privy
Council this obligation extends to great grandsons also because all the male descendants upto three
generations constitute coparcenary and every coparcener is under a religious obligation to pay the debt
contracted by their ancestor, provided such debt was not taken for an immoral or unlawful purpose

The concept of pious obligation has its origin in Dharmashastras, according to which non-payment of
debt is a sin which results in unbearable sufferings in the next world. Hence the debts must be paid off in
all circumstances provided it was not for immoral and illegal purposes. Vrihaspati has said, “If the father
is no longer alive the debt must be paid by his sons. The father’s debt must be paid first of all, and after
that a man’s own debts, but a debt contracted by the paternal grandfather must always be paid before
these two events.

The father’s debts on being proved, must be paid by the sons as if their own, the grandfather’s debt must
be paid by his son’s son without interest, but the son of a grandson need pay it at all. Sons shall not be
made to pay (a debt incurred by their father) for spirituous liquor, for idle gift, for promises made under
influence of love or wrath, or for surety ship, nor the balance of a fine or toll liquidated in part by their
father. Yajyavalkya says, “A son has not to pay in this world father’s debt incurred for spirituous liquor,
for gratification of lust or gambling, nor a fine, nor what remains unpaid of a toll; nor idle gifts.” But in
case of debts for purposes other than the above, on the death of the father, or on his going abroad, or
suffering from some incurable disease, the debt contracted by him would be payable by his sons and
grandsons.
The Mitakshara has presented the entire proposition in stronger words. According to it when the father
has gone abroad or is suffering from some incurable disease, the liability to pay the debt contracted by
him would lie on the sons and grandsons irrespective of the fact that the father had no property. There

24
are reasons for fixing this liability on sons and grandsons. The liability to pay the debt is in the order,
viz., in absence of father the son and in absence of son the grandson.
It is worth noting that the doctrine of pious obligation does not extend the liability to females
notwithstanding she has been given a share in the joint family property on partition. Where the wife gets
a share on partition between husband, sons and herself, still she would not be under any obligations to
pay the debt of the ancestor (father).

Joint Hindu family 

A joint family or undivided family is an extended family arrangement prevalent throughout the Indian
subcontinent, particularly in India, consisting of many generations living in the same household, all
bound by the common relationship
The institution of joint Hindu Family is very ancient. It has evolved from the ancient patriarchal family
which can be described as the earliest unit of human society. In simple terms, a joint Hindu family is a
group of relatives tied together by ties of kinship & marriage and descended from a common ancestor. It
includes children, children’s children down the line, spouses.  A joint Hindu Family is normally joint in
worship/kitchen/business. Even daughter in laws/widowed daughters who has returned back to their
parental side are part of a Hindu joint family. A joint family may encompass countless generations.

A joint Hindu Family is headed by a Karta, who is normally the eldest living male member of the
family. Karta has some peculiar rights and obligations under traditional Hindu Law and withholds the
maximum power and duty of superintendence such as how the joint family is run, who is getting what?
How the members are being maintained?

He is also entitled with the power to dispose of the property in times of dire need/necessity. After 2005
amendments by which women have been given equal proprietary rights in ancestral property even
women can be Karta.
A joint Hindu Family is not a corporation. It has no legal entity distinct and separate from that of the
members who constitute it. It is not a juristic person either. It is a unit and in all affairs it is represented
by its Karta or Head. Within its fold no outsider, except by adoption, can be admitted by agreement or
otherwise. It confers a status on its members which can be acquired only by birth in the family or by
marriage to a male member. (Ram Kumar v. Commissioner, Income Tax, 1953 All. 150.)
MEMBERS OF JOINT HINDU FAMILY

The following category of persons constitute a joint Hindu Family:

1. Persons, lineally connected in the male line.

2. Collaterals
3. Any person related by adoption

25
 4. Dependants
5. Son born out of marriage between a male Hindu and Christian woman under the Special
Marriage Act, 1954.
6. The wife or widows of deceased male members and
7. Maiden daughters

One of the special feature of joint Hindu Family is that it includes the illegitimate children also. They
are treated to be the members of their father’s family.  Sometimes, married widowed daughters also
settle in the joint family and are treated as members thereof, entitled to maintenance.

In Narendera Nath v. Commissioner of Wealth Tax, the Supreme Court held that the expression
‘Hindu undivided family’ in the wealth Tax Act used in the sense in which a Hindu joint family is
understood in the personal law of Hindus and a joint family may consist of a single male member and
his wife and daughters and there is nothing in the scheme of the Wealth Tax Act to suggest that a Hindu
undivided family as assessable unit must consist of a least two male members.

What is Doctrine of “Increase” (Aul)?–Muslim Property Law in India

According to Muhammadan law, the shares of various sharers are fixed. Where several sharers co-exist,
it sometimes happens that the total of their respective shares exceeds unity (one). Thus, suppose the
deceased leaves behind a husband and two full sisters.

Ordinarily, the husband will take 1/2, as there is no child or child of a son how lowsoever, and the two
sisters together will take 2/3, as there is no son. 1/2 + 2/3 = 7/6 which exceeds unity, and the property
falls short in distribution. How then is the deceased’s property to be divided?

This difficulty is solved by increasing the common denominator to the sum of the numerators, and thus
reducing the fractions without disturbing the proportion between them. Thus, in the illustration taken
above, on reducing the fractions to the common denominator one gets1/2 = 3/6 and 2/3 = 4/6.

Thus, with the common denominator the shares are: — husband = 3/6 and two sisters = 4/6. (The sum of
the numerators is 7.] Now, the common denominator is increased to the sum of the numerators, (i.e., 7).
On doing this, the shares would be as follows: husband: 3/7 and two sisters 4/7 (3/7 + 4/7 = 1.)

It may be noted that this doctrine is called “increase”, not because the shares are increased, which is
quite the opposite, the very object of the doctrine being to diminish the shares, but because the unity is
reached by increasing the denominator of the fractional shares.

26
 In other words, if it is found, on assigning their respective shares to the sharers, that the sum total of the
shares exceeds unity, the share of each sharer is proportionately diminished, by reducing the fractional
shares to a common denominator and increasing the denominator, so as to make it equal to the sum of
the numerator.

A Coparcenory 

Within the joint family there is a narrower body called the Coparcenory. This includes the eldest male
member + 3 generations. For eg : Son – Father – Grandfather – Great Grandfather. This special group of
people are called coparcenors and have a definitive right in ancestral property right since the moment of
their conception. Earlier only a Son/Son’s son/Son’s son’s son were coparcenors – now daughters are
equally coparcenors after 2005. They can get their share culled out by filing a suit for partition at any
time.   A coparcenor’s interest is not fixed it fluctuates by birth and deaths in the family.

A Hindu Coparcenary” Is Still A Narrower Term Than A Hindu Joint Family. A Hindu Coparcenary,
Under Mitakshara School Of Hindu Law, Consists Of A Common Male Ancestor Together With His
Lineal Descendants In The Male Line Within Three Generations (Degrees) Next To Him Or Within
Four Generations/Degrees Inclusive Of Such Ancestor, In Unbroken Line Of Male Descent. No
Coparcenary Can Commence Without, A Common Male Ancestor, Though After His Death, It May
Consist Of Collaterals Like Brothers, Uncles And Nephews, Cousins, Etc. Thus, A Hindu Coparcenary
Will Include A Common Male Ancestor, His Sons, His Grandsons And His Great-Grandsons. These
Male Persons, Three Generations Next To The Holder Of Joint/Coparcenary Property Are Coparceners
Or The Members Of Hindu Coparcenary (Under Mitakshara School) And They Acquire By Birth An
Interest In The Coparcenary Property. A Coparcener Has A Right To Enforce Partition Of Coparcenary
Property.

6 Essential Characteristics of Hindu Coparcenary

In CED v. Alladi Kuppuswamy[1977] 108 ITR 439 (SC), the Apex Court has held that Hindu
coparcenary has six essential characteristics, namely :

 (1) that the lineal male descendants up to the third generation acquire an independent right of ownership
by birth and not as representing their ancestors;
 (2) that the members of the coparcenary have the right to work out their rights by demanding partition;
 (3) that until partition, each member has got ownership extending over the entire property conjointly
with the rest and so long as no partition takes place, it is difficult for any coparcener to predicate the share
which he might receive;
 (4) that as a result of such co-ownership the possession and enjoyment of the property is common;
 (5) that there can be no alienation of the property without the concurrence of the other coparceners
unless it is to be for legal necessity; and
 (6) that the interest of a deceased member lapses on his death and merges in the coparcenary property.

27
Sunni Law of Inheritance:

The particular importance of the Islamic laws of inheritance is obvious from the verses immediately
following those verses giving specific details on inheritance shares, "These are limits (set by) Allah (or
ordainments as regards laws of inheritance), and whosoever obeys Allah and His Messenger will be
admitted to Gardens under which rivers flow (in Paradise), to abide therein, and that will be the great
success.

And whosoever disobeys Allah and His Messenger, and transgresses His limits, He will cast him into the
Fire, to abide therein; and he shall have a disgraceful torment." [Quran 4:13-14]

The laws of inheritance take on an even greater prominence in Islam because of the restriction placed by
Sharia on the testamentary power of the testator as we shall see later in this article.

Distribution of Deceased’s Estate 1. Funeral Expenses 2. Debts 3. Will 4. Inheritance

Order of Priorities in Inheritance 1. Sharers (Quranic Heirs) 2. Residuaries (Agnatic Heirs) 3.
Radd/Return to Sharers 4. Distant Kindred (Uterine Heirs) 5. Radd/Return to Spouse 6. Universal
Legatee 7. Bait ul Maal
Male Sharers
1. Father 1/6 (In presence of children)
2. True grandfather 1/6 (In absence of father)
3. Husband 1/4 (In presence of children) or 1/2 (In absence of children)
4. Uterine brother 1/6 (If alone and in absence of father) or 1/3 (Two or more than two)
Female Sharers
1. Mother 1/6 (In presence of children)
2. Paternal grandmother 1/6 (In absence of mother)
3. Maternal grandmother 1/6 (In absence of mother)
4. Wife 1/8 (In presence of children) or 1/4 (In absence of children)
5. Daughter 1/2 (In absence of son and alone) or 2/3 (Two or more than two)
6. Son’s daughter 1/2 (In absence of daughter and alone) or 2/3 (Two or more than two)
7. Full sister 1/2 (In absence of father and children, and alone) or 2/3 (Two or more than two)
8. Consanguine sister 1/2 (In absence of full sister and alone) or 2/3 (Two or more than two)
9. Uterine sister 1/6 (In absence of father and alone) or 1/3 (Two or more than two)
Residuaries
Three main categories of Residuaries: 1. Residuaries in Their Own Right 2. Residuaries in Another’s
Right 3. Residuaries Together with Another
Residuaries in Their Own Right
This category is subdivided into four: 1. Male descendants how low so ever (e.g. son and son’s son) 2.
Male ascendants how high so ever (e.g. father and true grandfather) 3. Deceased’s brother how low so
ever (e.g. full and consanguine brother and their son) 4. Brother of male ascendants how low so ever
(e.g. full uncle and consanguine uncle and their son)
Principles for Distribution among Residuaries in Their Own Right
1. Preference on the basis of different directions of relationship with deceased (e.g. son over father,
father over brother, brother over uncle)
2. Preference on the basis of various levels of relationship to deceased (e.g. son over son’s son, father
over grandfather, consanguine brother over full brother’s son)
3. Preference on the basis of proximity of relationship with deceased (full brother over consanguine
brother, full brother’s son over consanguine brother’s son)
Residuaries in Another’s Right

28
These are female Sharers who are converted into Residuaries in presence of their male counterparts
provided the latter possess the same level of relationship with deceased as well as the same proximity of
relationship, e.g. 1. Daughter along with son 2. Son’s daughter along with son’s son 3. Full sister along
with full brother 4. Consanguine sister along with consanguine brother

Residuaries Together with Another • Daughter(s) converts sister(s) (full as well as consanguine) into this
category. • Daughters remain as sharers even after conversion of sisters as residuaries. Once daughters
have their prescribed share, the rest will be inherited by sisters. • After conversion, sisters start behaving
like their male counterparts (e.g. full sister excludes consanguine brother and full brother’s son).

Principle of Exclusion • Exclusion of one legal heir by another from inheritance on the basis of nearness
in relationship with deceased • Two kinds of Exclusion: Partial and Complete • Six legal heirs cannot be
completely excluded: a. Father, b. Mother, c. Son, d. Daughter, e. Husband, and f. Wife.

Male Heirs Completely Excluded by Other Legal Heirs a. True grandfather is excluded by father.
Moreover, true grandfather who is nearer in his relationship to deceased will exclude the remoter true
grandfather. b. Full brother is excluded by father and male descendent. c. Consanguine brother is
excluded by (i) those who exclude full brother, i.e. father and male descendent, (ii) full brother, and (iii)
full sister when she becomes the residuaries together with another. d. Uterine brother or sister is
excluded by (i) male ascendant and (ii) male and female descendent. e. Son’s son is excluded by son.
Similarly, son’s son will exclude the other remoter male descendents, e.g. son of son’s son. f. Full
brother’s son is excluded by (i) father or true grandfather, (ii) son or son’s son, and (iii) full and
consanguine brother. g. Consanguine brother’s son is excluded by anyone who excludes full brother’s
son and by full brother’s son. h. Full uncle is excluded by consanguine brother’s son and all those who
exclude consanguine brother’s son. i. Consanguine uncle is excluded by full uncle and all those who
exclude full uncle. j. Full uncle’s son is excluded by consanguine uncle and all those who exclude
consanguine uncle. k. Consanguine uncle’s son is excluded by full uncle’s son and all those who exclude
full uncle’s son.

Female Heirs Totally Excluded by Other Legal Heirs a. Paternal/maternal grandmother is excluded by
mother. b. Son’s daughter is excluded by (i) son, and (ii) two or more than two daughters except when
she becomes the residuaries in another’s right along with son’s son. c. Full sister is excluded by (i)
father, and (ii) any male descendent. d. Consanguine sister is excluded by (i) father, (ii) any male
descendent, (iii) two or more than two full sisters, and (iv) full sister when she becomes the residuaries
together with another. e. Uterine sister is excluded by (i) male ascendant, and (ii) a male and female
descendent.

Principle of Radd/Return • It is applied when we are required to distribute estate among sharers only in
absence of residuaries. • Sharers may not consume the entire estate in the first round of distribution.
Hence, they are once again given some share in the estate as per their original prescribed share. •
Spouses are not entitled to have any property at this stage of application of Radd.

Distant Kindred/Uterine Heirs • The main illustrations of this category are: a. Maternal relatives
(Maternal grandfather, maternal uncle and aunt, their children), b. Paternal relatives not included in
Sharers and Residuaries (daughter’s children, sister’s children, paternal uncle’s wife) • Three manners of
distribution: a. Ahl al-Rahm (now obsolete) b. Ahl al-Tanzil (followed by Hanbali, Shafi, and Maliki) c.
Ahl al-Qarabah (followed by Hanafi and applied in Pakistan)

29
 Ahl al-Qarabah • Division of distant kindred into four classes: a. Descendants of deceased (daughter’s
children) b. Ascendants of deceased (false grandfather, false grandmother) c. Relatives of deceased’s
parent (sister’s children, brothers’ daughter, uterine brother’s son) d. Relatives of deceased’s
grandparents (paternal uncle’s wife, maternal uncles and aunts, and their children)
In Absence of Distant Kindred • Return to Spouse if there is no Sharer except deceased’s Husband or
Wife, Residuaries and Distant Kindred. • Deposit to Bail ul Maal if none of the above categories of legal
heirs exist including deceased’s spouse.
Rule of Aul • When the calculated shares of Sharers exceed from the supposed shares, the latter are also
increased to correspond the figure of the calculated shares. • After application of Aul, though number of
shares remain same but the quantity of shares decrease and sometimes substantially. • 6 may convert
into 7, 8, 9, and10 • 12 may convert into 13, 15, and 17 • 24 may convert into 27.

Illustrations
• Husband, father, mother, and sons • Wife, true grandmother, mother, father, son, and
daughter
• Wife, father, grandson, daughter, full brother • Wife, father, and daughters
• Full sisters, uterine brother, true grandmother, and consanguine brother
• Husband, mother, full sister, and uterine sister • Husband, father, mother, and daughter
• Husband, daughters, and uterine brother • Husband, full sisters, and uterine sisters
• Daughter and mother • Wife and daughter • Wife and maternal
grandfather
• Wife • Wife, granddaughters, and consanguine brother

Changes brought to hindu succession act by AP amendment act 1986

The following Act of Andhra Pradesh Legislative
Assembly which was reserved by the Governor on the 10 th October, 1985 for the consideration
and assent of the President received the assent of the President on the 16th May, 1986 and the
said assent is hereby first published on the 22nd May, 1986 in the Andhra Pradesh Gazette for
general information.

ACT NO. 13 OF 1986

An Act to amend the Hindu Succession Act, 1956 in its application to the State of
Andhra Pradesh. Whereas the Constitution of India has proclaimed equality before the law as
a Fundamental Right;

And Whereas the exclusion of the daughter from participation in coparcenary ownership
merely by reason of her sex is contrary thereto;

And Whereas such exclusion of the daughter has led to the creation of the socially
pernicious dowry system with its attendant social ills. And Whereas this baneful system of
dowry has to be eradicated by positive measures which will simultaneously ameliorate the condition
of women in the Hindu society;

Be it enacted by Legislative Assembly of the State of Andhra Pradesh in the Thirty-Sixth

Year of the Republic of India as follows:

Short Title, Extent and Commencement

30
 1.(1) This Act may be called the Hindu Succession (Andhra Pradesh Amendment) Act,
1986
(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall be deemed to have come into force on the 5th September, 1985.

2 Insertion of a new Chapter II-A in Central Act 30 of 1956

In the Hindu Succession Act, 1956 (hereinafter referred to as this Act) after Chapter -II, the
following chapter shall be inserted, namely:-

CHAPTER - II-A.

Succession by survivorship Equal rights to daughter in coparcenary property

29A.- Notwithstanding anything contained in Section 6 of this Act-

(i) in a Joint Hindu family governed by Mitakshara Law, the daughter of a coparcener shall by
birth become a coparcener in her own right in the same manner as the son and have the same rights in
the coparcenary property as she would have had if she had been a son, inclusive of the right
to claim by survivorship, and shall be subject to the same liabilities and disabilities in respect
thereto as the son;
(ii) at a partition in such a joint Hindu Family the coparcenary property shall be so divided
as to allot to a daughter the same share as is allotable to a son.

Provided that the share which a pre-deceased son or a pre-deceased daughter

would have got at the partition if he or she had been alive at the time of the partition shall be
allotted to the surviving child of such predeceased son or of such pre-deceased daughter;

Provided further that the share allotable to the pre-deceased child of a pre-deceased son
or of a pre-deceased daughter, if such child had been alive at the time of the partition, shall be
allotted to the child of such pre-deceased child of the pre-deceased son or of the pre-deceased
daughter as the case may be;

(iii) any property to which a female Hindu becomes entitled by virtue of the provisions of
clause
(i) shall be held by her with the incidents of coparcenary ownership and shall be regarded
notwithstanding anything contained in this Act or any other law for the time being in force,
as
property capable of being disposed of by her by will or other testamentary disposition;

(iv) nothing in clause (ii) shall apply to a daughter married prior to or to a partition which
had
been effected before the commencement of Hindu Succession (Andhra Pradesh
Amendment) Act, 1986. Interest to devolve by survivorship on death 29-B When a female Hindu
dies after the commencement of the Hindu Succession (Andhra Pradesh Amendment)
Act, 1986 having at the time of her death an interest in a Mitakshara coparcenary property, her
interest in the property shall devolve by survivorship upon the surviving members of the coparcenary
and not in accordance this Act.

31
 Provided that if the deceased had left any child or child of a pre-deceased child the
interest of the deceased in the Mitakshara coparcenary property shall devolve by
testamentary or intestate succession as the case may be, under this Act and not by survivorship.

Explanation-1.- For the purposes of this section, the interest of a female Hindu
Mitakshara coparcener shall be deemed to be the share in the property that would have
been allotted to her if a partition of the property had taken place immediately before her death
irrespective of whether she was entitled to claim partition or not.

Explanation 2:Nothing contained in the proviso to this section shall be construed as enabling
a person who, before the death of deceased, had separated himself or herself from the
coparcenary or any of his or her heirs to claim on intestacy a share in the interest referred to
therein.

29-C Preferential right to acquire property in certain cases

(1) Where, after the commencement of the Hindu Succession (Andhra Pradesh
Amendment) Act, 1986 an interest in any immovable property of an intestate or in any business carried
on by him or her, whether solely or in conjunction with others devolves, under section 29A or
section 29-B upon two or more heirs and any one of such heirs proposes to transfer his or her
interest in the property or business, the other heirs shall have preferential right to acquire the
interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased
may be transferred under this section shall in the absence of any agreement between the parties,
be determined by the court, on application being made to it in this behalf, and if any person
proposing to acquire the interest is not willing to acquire it for the consideration so determined,
such person shall be liable to pay all costs of or incidential to the application.

(3) If there are two or more heirs, proposing to acquire any interest under
this section, that heir who offers the highest consideration for the transfer shall be preferred.
Explanation:- In this section `court' means the court within the limits of whose
jurisdiction the immovable property is situate or the business is carried on, and includes any other
court which the State Government may, by notification in the official Gazette, specify in this behalf.

Tx-1
Capital and Revenue Receipts:
When the business receives money it is again of two sorts. It my be a long-term receipt, a contribution
by the owner, either to start the business off or to increase the funds available to it. It might be a
mortgage or an which brings money into the business for a long-term, but in this case it is not the owner
of the business but some other investor who is supplying the money.
On the other hand, the receipt may be a short-term receipt, one which is truly a profit of the business. It
may be rent received, commission received or cash for sale of goods made that day, or at some previous
time.
Capital Receipt:
Receipts which are non-recurring (not received again and again) by nature and whose benefit is enjoyed
over a long period are called "Capital Receipts", e.g. money brought into the business by the owner

32
(capital invested), loan from bank, sale proceeds of fixed assets etc. Capital receipt is shown on the
liabilities side of the Balance Sheet.
Revenue Receipt:
Receipts which are recurring (received again and again) by nature and which are available for meeting
all day to day expenses (revenue expenditure) of a business concern are known as "Revenue receipts",
e.g. sale proceeds of goods, interest received, commission received, rent received, dividend received etc.
Distinction between Capital Receipt and Revenue Receipt:
Revenue Receipt Capital Receipt
1. It has short-term effect. The benefit is 1. It has long-term effect. The benefit is enjoyed for
enjoyed within one accounting period. many years in future.
2. It occurs repeatedly. It is recurring and 2. It does not occur again and again. It is
regular. nonrecurring and irregular.
3. It is shown in profit and loss account on the 3. It is shown in the Balance Sheet on the liability
credit side.  side.
4. It does not produce capital receipt. 4. Capital receipt, when invested, produces revenue
receipt e.g. when capital is invested by the owner,
business gets revenue receipt (i.e. sale proceeds of
goods etc.).
5. This does not increase or decrease the value 5. The capital receipt decreases the value of asset or
of asset or liability. increases the value of liability e.g. sale of a fixed
  asset, loan from bank etc.
6. Sometimes, expenses of capital nature are to 6. Sometimes expenses of revenue nature are to be
be incurred for revenue receipt, e.g. incurred for such receipt e.g. on obtaining loan (a
purchase of shares of a company is capital capital receipt) interest is paid until its repayment.
expenditure but dividend received on shares
is a revenue receipt.
Net wealth is the aggregate value, computed under the provisions of the W.T. Act, 1957, of all assets
(including deemed assets), belonging to the assessee on the valuation date, Minus the aggregate value of
all debts owed by the assessee on the valuation date which have been taken in relation to the assets
attracting wealth tax.
 The goal of most businesses and households alike is to generate a positive net wealth, meaning that the
total value of asset surpasses the total amount of debt that is currently owed. There are some slight
differences in how net worth or wealth is recorded in various settings, although the basic formula applies
for individuals and business entities.

To calculate net wealth, it is first necessary to determine the value of the assets owned by the entity. In
many instances, this means considering the current market value of the assets in question, allowing for
factors such as depreciation. In the personal accounting records of individuals, the value or worth of the
assets is recorded directly as this current market value. For businesses, the asset is typically listed as
the original cost of purchase while also identifying the amount of depreciation accrued on that asset
since the purchase took place.
Once the value of all assets is determined, the next step is to identify the total amount of liabilities
currently owed by the individual or company. For households, this often means any outstanding credit
card debt, the balance on car loans and mortgages, and any accounts or tabs that are currently run at
local shops. Businesses would also include any outstanding balances due on real estate holdings,
equipment, or any receivables that have been declared uncorrectable but are still reflected in the
accounting records of the business and have not been written off as bad debt.

33
After determining the amount of assets and liabilities associated with the individual or company, the
calculation of net wealth is very simple. By subtracting the total liabilities from the total assets, it is
possible to identify the current level of net wealth held by that entity. Ideally, total assets are greater than
total liabilities, indicating the net worth or wealth is positive. In the event that total liabilities are greater
than total assets, the net worth or wealth of the entity is considered negative.

Enhancing net wealth typically involves the dual process of refraining from taking on additional debt
while also settling current debt, and seeking ways to increase the value of assets at the same time. For
example, if a household currently has a net wealth of $50,000 US dollars (USD) that reflects $10,000
USD of credit card debt, paying off the credit card balances and choosing to note make additional
purchases will result in increasing the net worth of that household to $60,000 USD. Assuming the
household owns stock in one more companies that generates $5,000 USD in dividends during this same
period, the net wealth increases from the original figure of $50,000 USD to $65,000 USD.

Net wealth of the assessee is to be computed as on the valuation date i.e., on 31st March, immediately
proceeding the relevant assessment year.
Net wealth is to be computed:
a. In case of individual – on the basis of his nationality and residential status of the previous year ending
on the valuation date. The residential status is to be determined in the same manner as laid down u/s 6 of
Income Tax Act.
b. In case of HUF and company - on the basis of its residential status of the previous year ending on the
valuation date.
Valuation date
The Wealth Tax Act, 1957 was an Act of the Parliament of India that provides for the levying of wealth
tax on an individual, Hindu Undivided Family (HUF) or company. The wealth tax was levied on the net
wealth owned by a person on a valuation date, i.e., 31 March of every year. The Act applies to the whole
of India, including the state of Jammu and Kashmir and the Union Territories. The application of the Act
has been discontinued since 1 April 2016.[1]
The wealth tax was abolished in the Union Budget (2016 - 2017) presented by Union Finance
Minister Arun Jaitley on 28 February 2015. The wealth tax was replaced with an additional surcharge of
2 per cent on the super rich with a taxable income of over 1 crore annually.[2]

Provisions
The Wealth Tax Act, 1957 governed the taxation process associated with the net wealth that an
individual, a Hindu Undivided Family (HUF), or a company possesses on the valuation date.[3]
The valuation date was an important component in the calculation of the Wealth Tax. The net wealth
that an assessee possessed on the valuation date determined the amount of tax. The valuation date was
the day of 31 March immediately preceding the Assessment Year.[4]
Wealth tax is calculated at the rate of 0.25 percent (1.0 per cent w.e.f April 2010) of the amount of net
wealth that exceeds Rs. 50 lakh(Rs. 30 Lakh w.e.f April 2010) on the valuation date. The net wealth of
an assessee includes the value of specified unproductive assets on the valuation date after subtracting the
debt the assessee owes on the said assets. Wealth tax does not attract any Education Cess[clarification
needed] or surcharge.[5]
Wealth Tax is not applicable to[6]

 Trusts

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 Artificial Judicial Persons
 Partnership firms
 Association of persons (AOPs)
 A company registered under Section 25 of the Company Act, 1956
 Co-operative Societies
 Social clubs
 Political parties
 Mutual funds specified under Section 10 Clause (23D) of the Income Tax Act
Resident but not ordinarily resident

 Within the category of resident individuals, a person who does not qualify as an ‘ordinary
resident’ will be treated as a ‘resident but not ordinarily resident’.
 For instance, to qualify as an ordinary resident for FY16, one should either have been a resident
for any 2 years between FY06 and FY15, or should have lived in India for 730 days or more
between FY09 and FY15.

For income tax purposes in India, you can be a 'Resident Indian' or a 'Non Resident Indian.' Or you can
also be a 'Resident but not Ordinary Resident (RNOR ).' In this article, we take a look at who
an RNOR is and why this special status is accorded.
Who is an RNOR? To understand who an RNOR is, we first need to understand the definitions of
resident and non-resident Indian.

A person is a resident Indian in a particular year if he fulfills either of these two conditions: - He/she has
been in India in that year for 182 days or more or - He/she has been in India for 60 days or more in that
year and 365 days or more in the 4 years preceding that year

A person who does not fulfill the above conditions is considered to be a non-resident.

Now, if you have recently moved back to India after spending many years overseas, you must check for
the status of RNOR.

A person is an RNOR if he meets either of these two conditions: - He/she has been non-resident in India,
that is, an NRI, in nine out of the ten previous years preceding that year, or - He/she has, during the
seven previous years preceding that year, been in India for a period of 729 days or less

Now depending on the date of return, a person can take the benefit of the RNOR status for up to 3 tax
years in India. (Note than a tax year in India is a fiscal year, that is, from April to March)

Illustration: Rakesh Verma returns to India on 15th January 2011 after spending more than 20 years
abroad. The first tax year for him in India would be 2010-2011. Does he qualify as RNOR in 2010-
2011? Yes, because: - He has been an NRI for all the years preceding 2010-2011.

Will he qualify as RNOR in 2011-2012? Yes, because - He will have been an NRI for nine out of the ten
previous years. That is, except for 2010-2011, he will have been NRI in all other years

Will he qualify as RNOR in 2012-2013? - He will not have been NRI for nine out of the ten previous
years because he would have been RNOR for 2010-2011 and 2011-2012. - During the seven previous

35
years, that is for the seven tax years from 2005-2006 to 2011-2012, he would have been in India for the
entire 2011-2012 (366 days) and for 75 days in 2010-2011. That's 441 days in total which is less than
729 days. Because he will fulfill this second condition, he will qualify as an RNOR in 2012-2013 as
well.

Will he qualify for RNOR in 2013-2014? - He will not have been NRI for nine out of the ten previous
years because he would have been RNOR from 2010-11 to 2012-13 -During the seven previous tax
years, that is from 2006-2007 to 2012-2013, he would have been in India for 365 days in 2012-2013,
366 days in 2011-2012 and 75 days in 2010-2011. That's 806 days in total. Since he will not fulfill either
condition, he will be considered as Resident Indian in 2013-2014.

Why this status? The RNOR is a special status accorded in order to provide some benefits to returning
NRIs. For Indian income tax purposes, an RNOR is treated at par with NRIs. That means, an RNOR
needs to pay tax in India only on his Indian income. Any income from abroad will not be taxed in India.
These include: - Any interest or dividends from foreign securities - Any capital gains from the sale of
foreign assets including property - Any withdrawals made from foreign retirement funds such as 401K
plans for US based NRIs - Interest on Foreign Currency Non Resident (FCNR) bank account held in
India (until maturity) - Interest on Resident Foreign Currency (RFC) account

(Note: There is one exception here. Income received and accrued outside India from a business
controlled or set up in India is taxable in India, even for an RNOR)
What is 'Turnover'
Turnover is an accounting term that calculates how quickly a business collects cash from accounts
receivable or how fast the company sells its inventory.

In the investment industry, turnover is defined as the percentage of a portfolio that is sold in a particular
month or year. A quick turnover rate generates more commissions for trades placed by a broker.

BREAKING DOWN 'Turnover'

Two of the largest assets owned by a business are accounts receivable and inventory. Both of these
accounts require a large cash investment, and it is important to measure how quickly a business collects
cash. Turnover ratios calculate how quickly a business collects cash from its accounts receivable and
inventory investments.
How Accounts Receivable Turnover Is Calculated

Accounts receivable represents the total dollar amount of unpaid customer invoices at any point in time.
Assuming that credit sales are sales not immediately paid in cash, the accounts receivable
turnover formula is credit sales divided by average accounts receivable. The average accounts receivable
is simply the average of the beginning and ending accounts receivable balances for a particular time
period, such as a month or year.

The accounts receivable turnover formula tells you how quickly you are collecting payments, as
compared to your credit sales. If credit sales for the month total $300,000 and the account receivable
balance is $50,000, for example, the turnover rate is six. The goal is to maximize sales, minimize the
receivable balance, and generate a large turnover rate.

36
The difference between turnover and profit

Turnover is the net sales generated by a business, while profit is the residual earnings of a business after
all expenses have been charged against net sales. Thus, turnover and profit are essentially the beginning
and ending points of the income statement - the top-line revenues and the bottom-line results.

There are some variations on the terms just described. Turnover can also refer to the amount of assets or
liabilities that a business cycles through in comparison to the sales level that it generates. For example, a
business that has inventory turnover of four must sell all of its on-hand inventory four times per year in
order to generate its annual sales volume. This information is useful for determining how well a
company is managing its assets and liabilities. If a business can increase its turnover, it can theoretically
generate a larger profit, since it can fund operations with less debt, thereby reducing interest costs.

The "profit" term can refer to gross profit, rather than net profit. The calculation of gross profit does not
include any selling, general, and administrative expenses, and so is less revealing than net profit.
However, when tracked on a trend line, it can give a useful perspective on the ability of a company to
maintain its price points and production costs over the long term. There is little relation between
turnover and gross profit.

Taxation Powers of Union and States in India

Indian constitution has divided the taxing powers as well as the spending powers (and responsibilities)
between the Union and the state governments. The subjects on which Union or State or both can levy
taxes are defined in the 7th schedule of the constitution. Further, limited financial powers have been
given to the local governments also as per 73rd and 74th amendments of the constitution and enshrined
in Part IX and IX-A of the constitution.
Since the taxing abilities of the states are not necessarily commensurate with their spending
responsibilities, some of the centre’s revenues need to be assigned to the state governments.  On what
basis this assignment should be made and on what guidelines the government should act – the
Constitution provides for the formation of a Finance Commission (FC) by President of India, every five
years, or any such earlier period which the President deems necessary via Article 280. Based on the
report of the Finance Commission, the central taxes are devolved to the state governments.
Separation of Powers
The Union government is responsible for issues that usually concern the country as a whole, for example
national defence, foreign policy, railways, national highways, shipping, airways, post and telegraphs,
foreign trade and banking. The state governments are responsible for other items including, law and
order, agriculture, fisheries, water supply and irrigation, and public health.
Some items for which responsibility vests in both the Centre and the states include forests, economic
and social planning, education, trade unions and industrial disputes, price control and electricity. Then,
there is devolution of some powers to local governments at the city, town and village levels.
The taxing powers of the central government encompass taxes on income (except agricultural income),
excise on goods produced (other than alcohol), customs duties, and inter-state sale of goods. The state
governments are vested with the power to tax agricultural income, land and buildings, sale of goods
(other than inter-state), and excise on alcohol. Local authorities such as Panchayat and Municipality also
have power to levy some minor taxes.
The authority to levy a tax is comes from the Constitution which allocates the power to levy various
taxes between the Centre and the State. An important restriction on this power is Article 265 of the
Constitution which states that “No tax shall be levied or collected except by the authority of law.” This

37
 means that no tax can be levied if it is not backed by a legislation passed by either Parliament or the
State Legislature.
Sources of Revenue for Union Government
The sources of Revenue of the Union Government are as follows:
 Income (except tax on agricultural income), Corporation Tax & Service Tax
 Currency, Coinage, legal tender, Foreign Exchange
 Custom duties (except export duties)
 Excise on tobacco and other goods.
 Estate Duty (except on agricultural goods) (Kindly note that its mentioned in the constitution but
Estate duty was abolished in India in 1985 by Rajiv Gandhi Government)
 Fees related to any matter in Union list except Court Fee
 Foreign Loans
 Lotteries by Union as well as State Governments.
 Post Office Savings bank, Posts, Telegraphs, Telephones, Wireless Broadcasting, other forms of
communication
 Property of the Union
 Public Debt of the Union
 Railways
 Stamp duty on negotiable instruments such as Bills of Exchange, Cheques, Promissory notes etc.
 Reserve Bank of India
 Capital gains taxes, Taxes on capital value of assets except farm land
 Taxes other than stamp duties on transactions in stock exchanges and future markets
 Taxes on the sale and purchase of newspapers and advertisements published therein.
 Terminal Taxes on Goods and passengers, carried by Railways and sea or air.
Sources of revenue for State Governments
The following are sources of revenue for State Governments.
 Taxes and duties related to agricultural lands
 Capitation Taxes
 Excise on liquors, opium etc.
 Fees on matters related to state list except court fee
 Land Revenue, Land and buildings related taxes
 Rates of Stamp duties in respect of documents other than those specified in the Union List
 Taxes on mineral rights subject to limitations imposed by the parliament related to mineral
development
 Taxes on the consumption or sale of electricity
 Sales tax on goods (other than newspapers) for consumption and use within state.
 Taxes on advertisements except newspaper ads.
 Taxes on goods and passengers carried by road or on inland waterways
 Taxes on vehicles, animals and boats, professions, trades, callings, employments, luxuries,
including the taxes on entertainments, amusements, betting and gambling.
 Toll Taxes.

38
  Certain Taxes levied as Concurrent Powers
Please note that the Union and the State Governments have the concurrent powers to fix the principles
on which taxes on motor vehicles shall be levied and to impose stamp duties on non-judicial stamps. The
property of the Union is exempted from State Taxation; and the property of the states is exempted from
the Union Taxation. But the parliament of India can pass legislation for taxation by Union Government
of any business activities / trade of the state which are not the ordinary functions of the state.
Residuary Power of Taxation
Union Government has exclusive powers to impose taxes which are not specifically mentioned in the
state or concurrent lists. Some taxes imposed using these powers include Gift tax, wealth tax and
expenditure tax.
State’s power Regarding Sales Tax
The sales tax on consumer goods such as toothpastes, soaps, daily use items, electronic items etc.
are imposed, collected and appropriated by state governments. However, newspapers and newspaper
ads are exception to this. Further, there are four restrictions to this power of the state. These include:
 A state cannot impose sales tax if a good is produced there but is sold outside the state.
 A state cannot impose sales tax if the sale and purchase is taking place for items due for export.
 A state cannot impose tax on interstate trade and commerce of goods
 State cannot impose a tax on a good that has been declared of special importance by parliament.
Other facts about levying and appropriation of Taxes
 Sales tax is imposed, levied, collected, appropriated by states as mentioned above
 Income tax, Corporation Tax, Service tax are levied and collected by Centre but are appropriated
by both states and centres as per distribution formula recommended by Finance Commission. This
formula is NOT binding upon the parliament.
 However states have no share in surcharges, cesses on these taxes.
 Stamp duties on negotiable instruments and excise duties on medicinal and toilet preparations
that have use of alcohol and narcotics are levied by Centre. But these taxes don’t make a part of
consolidated fund of India. They are assigned to respective states only, which appropriate these taxes.
 Sales tax in case of Inter-state trade of goods (except newspapers) is levied and collected by the
centre but such proceeds are assigned to states. (This is known as Central Sales Tax)

Income under the head ‘Salaries’ 

Salary is defined to include:
a) Wages
b) Annuity
c) Pension
d) Gratuity
e) Fees, Commission, Perquisites, Profits in lieu of or in addition to Salary or Wages
f) Advance of Salary
g) Leave Encashment

39
 h) Annual accretion to the balance of Recognized Provident Fund
i) Transferred balance in Recognized Provident Fund
j) Contribution by Central Government or any other employer to Employees Pension Account as
referred in Sec. 80CCD
Points to consider:
a) Salary income is chargeable to tax on “due basis” or “receipt basis” whichever is earlier.
b) Existence of relationship of employer and employee is must between the payer and payee to tax the
income under this head.
c) Income from salary taxable during the year shall consists of following:
i. Salary due from employer (including former employer) to taxpayer during the previous year,
whether paid or not;
ii. Salary paid by employer (including former employer) to taxpayer during the previous year
before it became due;
iii. Arrear of salary paid by the employer (including former employer) to taxpayer during the
previous year, if not charged to tax in any earlier year;
Exceptions - Remuneration, bonus or commission received by a partner from the firm is not taxable
under the head Salaries rather it would be taxable under the head business or profession.
Place of accrual of salary:
a) Salary accrues where the services are rendered even if it is paid outside India;
b) Salary paid by the Foreign Government to his employee serving in India is taxable under the head
Salaries;
c) Leave salary paid abroad in respect of leave earned in India shall be deemed to accrue or arise in
India.
Exceptions - If a Citizen of India render services outside India, and receives salary from Government of
India, it would be taxable as salary deemed to have accrued in India.
Taxability of various components of salary:
No. Section Particulars Taxability/Exemption
1. 17 Basic salary Fully taxable
2. 17 Dearness Allowance (referred to as ‘DA’) Fully taxable
3. 17 Bonus, fees or commission Fully taxable

  
Deduction from Salary
1. 16 (ii) Entertainment Allowance Least of the following is exempt from tax:
received by the Government a) Rs 5,000
employees (Fully taxable in b) 1/5th of salary (excluding any allowance, benefits or other
case of other employees) perquisite)
c) Actual entertainment allowance received
2. 16(iii) Employment Amount actually paid during the year. However, if
Tax/Professional Tax. professional tax is paid by the employer on behalf of its

40
 employee than it is first included in the salary of the employee
as a perquisite and then same amount is allowed as deduction.
1. Salaries
1. What is "Gross Salary" and how it is computed
2. What is "Net Salary Income" according to Income-Tax Act.
3. Allowance
1. The amount of Exemption is Amount of Expenditure incurred in case of Special
Allowance.
2. House Rent Allowance
4. Perquisites & Income Tax (Taxable and Exempted)
5. Profit in lieu of Salary
6. Amount of Exemption is Amount specified in the Income Tax Rules.
1. Children Education Allowance & Hostel Allowance
2. Leave Travel Concession (LTC)
3. Leave Encashment
4. Arrear of Salary
5. Pension
6. Gratuity
7. Retrenchment Compensation
8. Entertainment Allowance
9. Rent Free House
7. Deduction u/s 80C – How to find out
8. Chat Showing- Computation of 'Salary' income

Tax-2

Advance tax
Advance Tax can be simply understood as an advance estimation of total taxable income and, thereafter,
a presumptive calculation of the tax amount payable by the assesse for the relevant financial year. 

An assessee who is liable to pay advance tax is required to estimate his current income and pay advance
tax thereon without having to submit any estimate or statement of income to the assessing authorities. In
simpler words, it is payment of the income tax in equal parts throughout the year, rather than paying the
lumpsum tax amount at the end of the year. 
Applicability of Advance Tax Liability:
Advance Tax Liability is applicable on all tax payers, whether salaried, freelancers or businesses. In case
of salaried tax payers, if the employer deducts tax at source or TDS, then there is no further need of
payment of advance tax. 
However, if such an assessee has any other income other than salary, then he/she is required to meet
advance tax liability for such income. Such incomes may include capital gains on shares or house
property, interest on investments, etc. after making appropriate deductions for losses, if any.

41
How to Calculate Advance Tax?
Tax can be computed on the current income (estimated by the taxpayer) at the rates in force during the
financial year. Income received in the previous financial year can be taken as the taxable income for the
calculation of advance tax liability. In case of businesses and professionals like doctors, lawyers, etc.
resident in India, whose gross receipts or turnover of businesses is less than ₹ 2 crore per annum, they
are exempted from the mandatory payment of advance tax. They have to pay 100% Advance Tax by
15th March. Such businesses are relieved from maintaining books of accounts. However, they are not
allowed to deduct any business income against this business income.  

Who is it applicable for? If in a financial year your total tax liability exceeds Rs 10,000 you will be
required to pay Advance Tax. Do remember to include all heads of income calculating Advance Tax.

Senior citizens, those who are 60 years or older and do not run a business, are exempt from paying
advance tax.

Let us point out Tax Deducted at Source (TDS) as a concept. When you receive any income (your
salary, Interest Income), many a times, the person paying you will deduct TDS before paying you. If the
TDS deducted is more than your tax due, then you may not have to pay advance tax.

  Salaried Employees: If you work at a company and earn a salary, your employer is going to deduct
TDS on salary. So you don't have to deal with advance tax.

Tax and Fee

Tax is levied compulsorily by the government on its citizens to defray the expenses of the government.
A tax, by definition, is a payment in return for which no direct and specific quid pro quo is rendered to
the taxpayer. From the definition of a tax, we can pinpoint some of the important characteristics of tax.
Firstly, a tax is a compulsory payment levied by the government on its citizens and various business
firms. As payment of tax is compulsory, refusal to pay tax invites punishment.

Secondly, there is no direct quid pro quo relationship between the taxpayer and the tax-levying
authority. That is to say, a taxpayer cannot demand any reciprocal benefits for paying taxes.
Thirdly, a tax is levied to incur public expenditure for the benefit of the country as a whole.
Fourthly, the basis of taxation cannot be the same for all periods. It is reviewed periodically by the
taxing authority.
On the other hand, a fee is a voluntary payment to the government for the special services rendered by it
in the public interest, but conferring a specific advantage on the person paying it.
Now, it is possible to mention some of the important differences between tax and fees:
In the first place, a tax is a compulsory contribution made by a taxpayer. A fee, by definition, is a
voluntary payment.

Secondly, as far as tax is concerned, there is no direct give-and-take relationship between the taxpayer
and the tax-levying authority.
A taxpayer cannot demand any special favour from the authority in return for taxes paid by him. A fee is
a direct payment by those who receives some special advantages or the government guarantees the
services who pays fees. Fees are, therefore, deemed to be the by-products of the administrative activities
of the government.

42
 Thirdly, fees are mostly imposed to regulate or control various types of activities. But the objectives of
taxation are many. It has no separate objective. Taxes are levied in the greater interests of the country.

Deemed assets

If any asset is transfer without adequate consideration to spouse then the property will be clubbed in the
hand of transfer-or. but spouse earn any income say rental income from such transferred property and
purchase any other asset from the rental income. then whether second asset purchase from the rental
income of deemed asset will also be clubbed in the hand of transfer-or or transferee himself or herself
will pay tax on such second asset.

1. when asset is transferred from one spouse to another without adequate consideration after March
31, 1956, the value of asset on valuation date shall be taxation in the hand of transfer or.
2. The marriage should be subsist on the date of transfer and date of valuation.
3. Asset is exempt if gift tax is already charged on that asset.
4. Accretions to asset is not covered under section 4. Example, if husband gifts house to wife, then
value of house is taxable in the hand of husband but if wife receives rent and purchase car from the rent ,
then value of car is not taxable in the hand of husband.
 
ASSETS HELD BY MINOR CHILD (SECTION 4(1)(A)(II):
1. Similarly provision of clubbing, value of assets held by minor child on valuation date shall be
taxable in the hand of the parent whose net wealth is greater.
2. Where such assets once included in either parent, it cannot be included with the assets of other
parent unless assessing officer is satisfied that it is necessary to do so.
3. The aforsaid clubbing provision shall not apply when the assets are acquired by minor child with
manual work or skill or special knowlege or talent.
4. The aforesaid clubbing provision is not applicable to minor child who is suffering from disability
specified in section 80U of the income tax act.
5.
ASSETS TRANSFERRED TO A PERSON OR AOP (SECTION 1(A) (III):
 
1. Asset is transferred to individual or AOP without adequate consideration.
2. The transfer is for benefit of transferor or his spouce.
3. Gift tax was not levied on that asset.
4. In this case, value of asset is to included in the wealth of transferor.
 
ASSETS TRANSFERRED UNDER REVOCABLE TRANSFER (SECTION 4(1)(A)(IV):
1. Asset is transferred to individual or AOP by individual.
2. Asset is transferred under revocable transfer after march 31, 1956.
3. The asset may be held by transferee on relevant valuation date.
4. If all these conditions are satisfied, the asset is deemed asset of transferor and value of asset shall
be included in the wealth of transferor.
 MEANING OF REVOCABLE TRANSFER:
Revocable transfer means when transfer is revocable within 6 years or lifetime of the beneficiary. It also
includes transaction when transferor gets direct or indirect benefit from the asset or transferor can re
assume power on whole or part of asset.

43
  ASSETS TRANSFERRED TO SON’S WIFE(SECTION 4(1)(A)(V):
 Asset is transferred to son’s wife without adequate consideration.
1. Asset is transferred after March 31, 1973.
2. The asset is held by son’s wife on valuation date.
3. The relationship between father-in-law/mother-in-law should subsist on the date of transfer and
on the date of valuation.
4. If all above conditions are satisfied, the asset should be clubbed with wealth of transfer er.
 ASSETS TRANSFERRED FOR BENEFIT OF SON’S WIFE (SECTION 4(1)(A)(VI):
 Similarly if asset is transferred for the benefit of son’s wife to any individual or AOP, it is also
considered as deemed asset and clubbed with the wealth of transferer. Conditioned mentioned in section
4(1)(a)(v) should be satisfied.
 INTEREST IN PARTNERSHIP FIRM OR INTEREST OF PARTNER (SECTION 4(1)(B):
 When you are partner of firm or member of AOP, interest as a partner or member in the assets of firm
or AOP shall be included for wealth tax computation purpose. The interest shall be calculated as per
schedule III to the wealth tax act.
If minor is included in the firm, interest of minor in assets of firm shall be clubbed with the value of
asset of the parent. (section 4(1)(a)(ii).
 CONVERSION OF PROPERTY BY INDIVIDUAL INTO JOINT FAMILY PROPERTY
(SECTION 4(1A):
  Individual transferred his separate property to HUF in which he is member without adequate
consideration.
 If property is transferred before partition of HUF, value of property transferred shall be included
in net wealth of individual.
 If property is transferred after partition of HUF and members of HUF received part from the
property, the part received by wife of individual shall be included in the net wealth of individual.
 The property is transferred after 31/12/1969.
 GIFTS BY BOOK ENTRIES (SECTION 4(5A):
 When gift is made by mere book entry by individual, HUF, firm, AOP, BOI and there is no real transfer
then the value of gift shall be considered as asset of donor (who has given gift).
 Gift is valid if there is sufficient proofs that property is really transferred and there is sufficient
cash and bank balance in accounts on the date of gift.
 IMPRATIBLE ESTATE (SECTION 4(6):
 Holder of impartible estate have to pay wealth tax on all the assets included in impartible estate.
 PROPERTY HELD BY MEMBER OF HOUSING SOCIETY (SECTION 4(7):
 When any person holding property of housing society,company or HUF on lease or installment
purchase, he shall be deemed to be owner of the property.
 He can reduce value of property by deducting installment payable’s amount. Remaining amount
shall be considered taxable under wealth tax act.
 PROPERTY RECEIVED UNDER PART PERFORMANCE OF CONTRACT (SECTION 4(8):
 Any person who receives property for part performance of contract shall be deemed to be owner of the
property.
 Any person who acquires property under lease shall be also become deemed owner of the
property.
 The lease should not be monthly basis or for a period not exceeding one year.
  WEALTH TAX EXEMPTION FOR SOME ASSETS (SECTION 5):
Following assets are entitled for wealth tax exemption:
PROPERTY HELD UNDER TRUST FOR CHARITABLE PURPOSE (SECTION 5(I):
 when trust referred to in clause 22, clause 22A or clause 22B or clause 22C of section 10 holds
any property, it is exempt from wealth tax.

44
 Condition is that the business carried out by trust should be religious or charitable purposes.
 The activity may be publications of book, printing of books or business notified by central
government in this behalf in the official content.
 COPARCENARY INTEREST IN HUF (SECTION 5(II):
Interest in HUF by member is exempt from wealth tax.
 RESIDENTIAL BUILDING BY FORMER RULER (SECTION 5(III):
 Former ruler of principal state can get exemption for one residential house used by him. He cannot
exemption for more than one house. He can get exemption for new building also.
 
JEWELLERY OF FORMER RULER (SECTION 5(IV):
 Jewellery owned by former ruler of principal state which has recognised by central government as
heirloom is exempt.
 ASSETS BELONGING TO INDIAN REPATRIATES (SECTION 5(V)):
When Indian origin person returns to India, assets brought by him in India or assets purchased by him
from money brought him in India are exempt from tax. The exemption is available for 7 assessment
years. Suppose person comes to India in financial year 2013-14, exemption is available for him for 7 a.y.
starting from year 2014-15. (up to a.y. 20-21)
Indirectly government is giving incentive to settle in India to foreigners.
 EXEMPTION FOR ONE HOUSE (SECTION 5(VI)):
 Exemption is available for one house / part of house owned by Individul or HUF. The house can be self
occupied or let out.
 Exemption is available for land for area up to 500 square metres.
 EXEMPTION FOR DEBT:
 You should not pay tax for the property which you actually not own completely. Suppose I have one
house and I have taken it from loan and loan installments are pending. I am actually owning part of
house. So I have to pay wealth tax on amount by calculating value of house reducing value of
installment pending.
So you can claim exemption for debt owned by you for particular asset for valuation date.
So In this post, we see about wealth tax exemption and list of assets which are taxable. In next post, we
will understand valuation of assets in wealth tax law.You can download pdf version of this article from
bottom of the post or print button. Don’t forget to share this post so that we get inspiration to write more.

What is Agriculture Income?

Agricultural income in India is categorized as a valid source and essentially incorporates income from
sources that include farming area, structures on or identified with a rural land and business deliver from
a horticultural land. This income is considered for rate purposes while ascertaining the income tax
liability of an individual.
Agriculture Income – Income Tax Act, 1961
Section 2 (1A) of the Income Tax Act, 1961[1] details out the conditions wherein sources can be
considered to be generating agricultural income. The following are the sources of agricultural income –

 Revenue generated through rent or lease of a land in India that is used for agricultural
purposes, subject to some conditions which are-:

45
 o The land ought to either be evaluated to arrive income in India or be liable to a
nearby rate surveyed and gathered by officers of the Government.
o In the event that for example the land isn’t liable to neighbourhood rate, at that
point the land ought not to be arranged inside the locale of a region or a
cantonment board, and which has a populace of more than ten thousand, or it ought
not to be arranged:
o Not being more than 2kms. from the neighbourhood furthest reaches of any region
or cantonment board and which has a populace of more than 10,000 yet not
surpassing 1,00,000; or
o Not being more than 6kms. from the neighbourhood furthest reaches of any district
or cantonment board and which has a populace of more than 1,00,000 yet not
surpassing 10,00,000; or
o Not being more than 8kms. from the nearby furthest reaches of any region or
cantonment board and which has a populace of more than 10,00,000[2].
 Revenue generated through the commercial sale of produce gained from an agricultural land.
 Revenue generated through the renting or leasing of buildings in and around the agricultural
land subject to the following conditions as follows-:

o The cultivator or farmer should have occupied the building, either through rent or
revenue.
o The building is used as a residential place, storeroom or outhouse.
o The agricultural land or the land where the building is located is being assessed for
land revenue or subject to a local rate assessed.

Andhra Pradesh General Sales Tax Act, 1957 

The Andhra Pradesh General Sales Tax Act, 1957 contains more than 250 commodity classifications for
purpose of levy and collection of Sales Tax at different rates. The Act is now repealed. A much closer act to
APGST Act is the Andhra Pradesh Value Added Tax Act, 2005.

 Essential Ingredients for levy of sales tax:

 There must be a sale of goods
 Sale should be of goods as defined under the APGST Act.
 Sale should be done by a dealer
 It should be in the course of business
 There should be consideration for sale of goods.
 Dealers: Dealer includes any person carrying on Business including a commission agent, the
state govt. or central govt. etc.
 Registration of Dealers under APGST Act:
 Dealers are required to get themselves registered u/s 12 in the following cases:
 where turnover in any year is not less than Rs. 50,000/-.
 Dealers carrying on business in all or any of the commodities mentioned in first, second,
third, fifth and sixth schedules.

46
  Dealers carrying on or execute in Works Contract.
 Dealers who transfers the right to use of any goods.
 Dealers registered under CST Act.
 Dealers residing outside the State but carrying on business in the State.
 Every agent of non-resident dealer.
 Every commission agent who carries on business by buying, selling, supplying,
distributing or delivering of goods on behalf of principal.
 Every miller whether he is a dealer or not.
 Application for Registration is to be filed before Assistant Commercial Tax Officer having
jurisdiction.
Exempted Asset [Sec. 5] 
The following assets are exempted u/s 5 of the Wealth Tax Act and shall not be included in net wealth of
the assessee:
Trust Property [Sec. 5(i)]
Any property held by an assessee under trust or other legal obligation for any public purpose, which is
of charitable or religious nature in India.
Property forming part of any business carrying on by such trust shall not be exempt. However, in the
following cases the assets held for business purpose is exempt:
1. Where such business is incidental to the attainment of the objectives of the trust/institution and
separate books of account are maintained by such trust in respect of such business;
2. The business is carried on by an institution or fund or trust for the development of Khadi or
village industries or both as referred to in sec. 10(23B) of the Income-tax Act.  
3. The business is carried on by certain fund or institution as referred to in sec. 10(23C) of the
Income-tax Act like Prime Minister's National Relief Fund or Prime Minister's Fund (Promotion
of Folk Art), etc.
Exceptions [Sec. 21A]
1. Any part of such property or any income of such trust (including voluntary contribution) is used
or applied directly or indirectly, for the benefit of any interested person referred to in sec. 13(3)
of the Income Tax Act.
2. Any part of the income of trust (including voluntary contribution), being created on or after 1-4-
1962, enures, directly or indirectly, for the benefit of any person referred in sec. 13(3) of the
Income Tax Act, 1961.
3. Any funds of the trust are invested or deposited or any shares in a company are held by the trust
in contravention of sec. 13(1)(d) and 11(5) of the Income Tax Act.
Tax Point  
 Where a trust is created before 1-4-1962, the provision of clause (i) shall not be applicable for
any use of fund or income for the benefit of any such person, if such use or application is by way
of compliance with a mandatory term of the trust.  
 Interested persons: Following are the interested persons as referred to in sec. 13(3) of the Income
Tax Act -
1. The author of the trust or the founder of the institution.
2. Any person whose total contribution up to the end of the relevant previous year to the
trust/institution exceeds Rs.50000.
3. Where HUF is the author or founder, any member of such HUF.
4. Any trustee of the trust or manager (by whatever name called) of the institution.
5. Any relative of any such author, founder, person, member, trustee or manager as aforesaid.
6. Any concern in which any of the above-referred person has a substantial interest.

47
  In these exceptional cases, trust shall be liable to wealth-tax. Such tax shall be recoverable from
the trustee or manager (by whatever name called) in the like manner and to the same extent as if
the property were held by an individual who is a citizen of India and resident in India for the
purposes of this Act.
 The exemption is not available in respect of any property (whether situated in India or
elsewhere) held for public purpose of charitable or religious nature outside India
 Where the objects of the trust are primarily or predominantly of charitable nature, the corpus of
the trust would qualify for exemption. U/s 5(1)(i), all the objects need not fall within the
expression public purpose of a charitable or religious nature in India. It would be sufficient if the
objects considered as a whole is charitable
 To claim exemption u/s 5(i), there is no pre-condition that it shall be entitled to exemption under
the Income Tax Act, hence, exemption u/s 5(i) is irrespective of that such trust is entitled to
exemption under the Income tax Act or not

HUF Property [Sec. 5(ii)]

Coparcenary interest in the HUF of which the assessee is a member.

A Building of Former Ruler [Sec. 5(iii)]

Any one building including land appurtenant thereto in the occupation of a Ruler, which was declared as
his official residence.
Tax Point
 Land appurtenant to the palace shall be treated as integral part of the palace
 Where in place of old recognized palace, a new building is constructed, then exemption on new
building is available
 Where a palace (i.e., his official residence) consist of number of building and out of them few are
let out, then let out portion is not exempt

Jewellery in possession of any Ruler [Sec. 5(iv)]

Jewellery in the possession of any Ruler, not being his personal property, which has been recognised -
- by the Central Government before 1/4/1957; or
- by the CBDT as his heirloom at the time of his first assessment to wealth tax.
Conditions for recognition by the Central Government (the conditions are not applicable in case such
jewellery are recognized by the Board)
1. Such jewellery shall be permanently kept in India and shall not be removed outside India except
for a purpose and period specified by the Board;
2. Reasonable steps shall be taken for keeping such jewellery substantially in its original shape;
3. Reasonable facilities shall be allowed to any officer of the Government authorised by the Board
in this behalf to examine the jewellery as and when necessary.
Consequences when above conditions are not satisfied -
Where any of the above conditions are not satisfied, the Board may, for reasons to be recorded in
writing, withdraw the recognition with retrospective effect from 9/9/1972. In such case, wealth tax shall
become payable by the Ruler for all the assessment years for which such jewellery was exempted on
account of such recognition.
For this purpose, fair market value of jewellery on the date of withdrawal of recognition shall be deemed
to be the fair market value for each assessment year falling during the exemption period.

48
Note: Aggregate amount of wealth tax payable for such period shall not exceed 50% of its fair market
value on the valuation date relevant for the assessment year in which such recognition was withdrawn. 

Assets held by Indian repatriates [Sec. 5(v)]

Money and assets brought by an assessee being a person of Indian origin or a citizen of India, who was
ordinarily residing in a foreign country and has returned to India on a permanent basis and the assets
acquired by him out of such money within one year immediately preceding his date of return and at any
time thereafter.
This exemption is available for 7 successive assessment years following the date of his return to India. 
Tax Point
 A person shall be deemed to be of Indian origin if he, or either of his parents or any of his grand
parents, was born in undivided India.
 For this purpose, balance lying in Non-Resident (External) Account in any bank in India as per
FERA on the date of his return to India is also considered to be money brought by him into India
on that date. 
 The exemption does not extend to the income or interest earned out of the use of such funds in
India after the date of his return [CWT vs. Dr. (Mrs.) Issac]
 If assessee has converted assets, which were brought by him from outside India, into money and
has used that money for acquisition of other asset, the asset which is acquired with sale
consideration of original asset, is also eligible for exemption [CWT vs K.O. Mathews]
 The exemption is not applicable in respect of asset purchased by the assessee out of money
remitted from abroad by others [CWT vs Noorjahan Jamal]

A house or plot of land [Sec. 5(vi)]

In case of an individual or HUF, any one of the following -
 One house or part of a house; or
 A plot of land (comprising an area of 500 square meters or less).
Tax Point
 Nature of occupancy (residential or commercial) is irrelevant.
 In case of co-ownership, each co-owner can claim exemption for his share.
 An ex-ruler having already opted for one house for exemption u/s 5(iii) would not be entitled to
exemption of another house u/s 5(vi) [Gaj Singh vs Settlement Commission (SC)] 
 If there is unity of structure and the two building are constructed in same compound then the
mere fact that different units of house are occupied by different persons, will not make that house
into several houses [Shiv Narain Chaudhari vs CWT]
 If the house is owned by a firm, then partners may claim exemption in proportion to their share
in that asset in their individual assessment.
 A cinema hall cannot be treated as house for the purpose of sec. 5(vi) [CIT vs Jai Kishan Gupta]

IPR- 1

49
Types of Trademarks?
A trademark offers legal protection for a word, symbol, phrase, logo, design, or combination of those
that represents a source of goods or services. Types of trademarks for products include five main
categories: generic mark, descriptive mark, suggestive mark, fanciful, and arbitrary mark. 

 Generic Mark
o A generic trademark actually doesn't qualify for a trademark unless it includes more specific
detail. One example of a generic mark is the phrase, "The Ice Cream Shop." Offering
trademark protection on something this generic would restrict all other shops that sell ice
cream.
o To qualify a generic mark for a trademark, it needs to describe qualities, characteristics, or
ingredients of the good your business sells.
 Descriptive Mark
o A descriptive mark identifies one or more characteristics of a prodct or service and only
serves to describe the product. It has unique elements that qualify it for protection under
trademark laws such as it must have secondary meaning such as amount and manner of
advertising, volume of sales, length and manner of the mark's use, or results of consumer
surveys to qualify. This means that consumers must recognize the mark and identify it with
the brand.
o To qualify as a descriptive mark, it should evolve from what the brand represents to who the
brand represents.
 Suggestive Mark
o A suggestive mark implies something about the good or service. A mark in this category
typically qualifies for protection without requiring a secondary meaning.
o The term "suggestive" means that the customer must use the imagination to figure out what
services or goods the company offers. One example is the luxury automotive brand, Jaguar. It
suggests speed and agility, but doesn't immediately convey a car manufacturer.
 Fanciful Mark
o A fanciful mark is a term, name, or logo that is different from anything else that exists. This
category is the easiest for obtaining trademark protection because it typically doesn't compete
with anything else or become too generic.
o Examples of fanciful marks include Kodak, Nike, and Adidas. These words don't hold any
meaning in common language, so trademarking them doesn't infringe on the rights of other
companies that offer similar products.
 Arbitrary Mark
o An arbitrary mark might include a term or phrase with a well-known meaning, but the
meaning in its case is different. The best example of an arbitrary mark is Apple, the computer
and electronics manufacturer. An apple is a familiar term, but in this case, the mark doesn't
have anything to do with the general meaning of the term. 

For companies that offer services:

 Service Mark
o A service mark is the same as a trademark, but it distinguishes a company that provides
services instead of products. A servce mark still falls under the legal trademark laws and
must be registered with the USPTO.

50
 o A common example of a service mark would be the "McDonald's" service mark since it
is used to represent the services provided.

Term of Copyright

Copyright term is the length of time copyright subsists in a work before it passes into the public domain.

Length of copyright
Copyright subsists for a variety of lengths in different jurisdictions. The length of the term can depend
on several factors, including the type of work (e.g. musical composition or novel), whether the work has
been published or not, and whether the work was created by an individual or a corporation. In most of
the world, the default length of copyright is the life of the author plus either 50 or 70 years. In the United
States, the term for most existing works is a fixed number of years after the date of creation or
publication. In most countries (for example, the United States[1] and the United Kingdom[2]) copyright
expires at the end of the calendar year in question.
The length and requirements for copyright duration are subject to change by legislation, and since the
early 20th century there have been a number of adjustments made in various countries, which can make
determining the copyright duration in a given country difficult. For example, the United States used to
require copyrights to be renewed after 28 years to stay in force, and formerly required a copyright notice
upon first publication to gain coverage. In Italy and France, there were post-wartime extensions that
could increase the term by approximately six years in Italy and up to about 14 in France. Many countries
have extended the length of their copyright terms (sometimes retroactively). International treaties, like
the Berne Convention, establish minimum terms for copyrights, but these only apply to the signatory
countries, and individual countries may grant longer terms than those set out in a treaty.[3]

Implications
Copyright term and the public domain
The extension of copyright term, imposes tangible restrictions on the public domain. For instance,
scholar Neil Netanel argued that Copyright Term Extension Act 1998 prevented the entering of works
central to cultural heritage of the US into the public domain. He argued, culturally important
dissemination, recasting, or incorporation into new expression is prevented due "to the copyright
holder's veto". As examples he gave the adaption of the plot from novels such as The Great
Gatsby and Peter Pan, the refashion of characters like Mickey Mouse, or the use Tin Pan Alley songs
like "Let's Do It (Let's Fall in Love)" for documentaries about the Great Depression.[4]
Copyright term and orphan works
For the millions of older copyrighted works of less enduring popularity, it is difficult, or impossible, to
trace the copyright ownership and determine who holds the particular rights that would have to be
licensed for the use of the work. The problem of such orphan works stems from the extension of
copyright term and the lack of requirement for the copyright owner to renew or register their copyright.
[4] In order to tackle this perceived problem some jurisdictions have revised their copyright laws to
allow use of orphaned works, after diligent searches.[5]

Mareva Injunction

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 A temporary injunction that freezes the assets of a party pending further order or final resolution by the
Court, so named after the case which allowed the remedy (see references below).
Also known as a freezing or freeze injunction (see snow-covered car, pictured).
The Mareva Injunction, which, at its appearance in 1975 was considered a powerful, extreme tool,
unique to English law, has now become commonplace, sought as a matter of procedure, in most
Commonwealth countries.

In the context of banks and banking law, Mareva Injunctions is an order that negates the banker's duty to
pay or transfer funds as per the instructions of the customer. More generally, it is an interlocutory order
granted ancillary to a substantive claim involving money, that seeks to prevent a defendant from rending
a decree against him worthless by removing his assets from the jurisdiction of the court. Also known as
the ‘freezing order', the injunction has changed and evolved vastly from the earliest cases, and has
grown into a general jurisdiction enabling the courts to grant the relief in circumstances very different
from what was initially envisaged.

Often used to prevent a defendant from secreting assets out of the Court's jurisdiction as soon as the
claim is served, to frustrate enforcement of the judgment.
Aimed usually at a specific defendant, and not attached to assets themselves. The named defendant is so
restrained in regards to specified assets. The injunction is enforced by the contempt powers of a court.
The mareva injunctions are typically obtained without notice to the other side (ex parte) as to tip the
defendant off would likely cause the prompt movement of the relevant assets before the Court could
issue its injunction, thereby insulating the defendant from contempt.
What is WIPO?
WIPO is the global forum for intellectual property services, policy, information and cooperation. We are
a self-funding agency of the United Nations, with 191 member states.
Our mission is to lead the development of a balanced and effective international intellectual property
(IP) system that enables innovation and creativity for the benefit of all. Our mandate, governing bodies
and procedures are set out in the WIPO Convention, which established WIPO in 1967.
WIPO helps governments, businesses and society realize the benefits of IP.

WIPO provide:
 a policy forum to shape balanced international IP rules for a changing world;
 global services to protect IP across borders and to resolve disputes;
 technical infrastructure to connect IP systems and share knowledge;
 cooperation and capacity-building programs to enable all countries to use IP for economic, social
and cultural development;
 a world reference source for IP information
Activities
Each WIPO division, led by its Director, is responsible for specific programs to achieve our
nine strategic goals and objectives:
 WIPO activities by unit
 WIPO – Making IP Work

52
Trademark Registration Process in India

Introduction
Trademark registration process in India is required if a company/individual intend to possess the
complete ownership of the mark and intend to protect it from the misuse by the third party.
Trademark registration gives legal right to take appropriate action against the third party against
an infringement of the trademark. Registering a trademark gives the owner exclusive right to use it
for its products and/or services. If the trademark registration process is followed smoothly, then the
owner can use the symbol that indicates that specific trademark is registered. The symbol indicates
trademarks registration in India application is filed.

Trademark Benefits
Trademark registration has many benefits once your brand gains attraction. The little effort of yours will
preserve a trademark for generation and develop a unique identity, that associates the people with the
specific brand. It gives you the ability to establish your right to the trademarked word, logo, and sound,
graphic or an even color combination. It protects your “mark” by preventing similar names from being
registered by other businesses operating in the space. It is an intangible asset to the business and builds
the confidence of investor on the company.

Procedure for trademark registration in India

1. Trademark Search
Time to Complete: 1 day
Step 1: The first step is the selection of a trademark.

Step 2: It is advisable for the applicant to search the trademark records registry and ensures that the
intended trademark does not resemble or identical the registered mark.

Step 3: The search can be done online or through the trademark office.

Step 4: It is advisable to consult an experienced lawyer as they are well-versed in their profession and
are be able to conduct an exhaustive search. Hire a lawyer if you think you have right on a particular
trademark but if it is already registered.

After thorough research, the application for registration in the trademark can be made in the prescribed
form.

2. Filling of Form TM-1

Time to Complete: 2 days
Cost: Rs. 4,000 (per application per class) + lawyer’s fees
Step 1: The application for the registration of the trademark should contain the following particulars:

 “Mark” chosen to be registered,

53
  Trademark owner’s information,
 List of goods or services for which the trademark will be used.

Step 2: The application for a trademark can be made both online and offline.

 Online application: A Class III Digital Signature Certificate is required.

 Offline application: An application to the Offices of the Trademark Registry is required.

Step 3: Once the application for the trademark registration is made, the Registrar will search for the
uniqueness of name and will check the registered marks and pending applications to ascertain whether
any such marks exists and to know the register-ability of proposed mark as per the law.

Step 4: In case, of objection by the registrar for acceptance of application or propose to accept
the application with certain term and conditions, amendments, limitations, etc., the same
is communicated in writing to the applicant and the applicant has to communicate back regarding their
rectification within a period of three months.

3. Cost
Step 1: So now, that you have your name, on to filing of Form TM-1. Each such form would contain
only one application. So if you are registering the trademark in two classes (i.e. sectors): let’s say
Relentless Garments and Relentless Computer, as well as having a separate logo for each, you would be
making four applications.

Step 2: With government fees Rs. 4,000 /-per application, the total would amount to Rs. 16,000.

Step 3: Lawyer’s fee starts at Rs. 200/- per application will amount to at least Rs. 8,000/-for
4 applications.

Step 4: In the case of the logos, a jpeg image needs to be provided.

Step 5: The acknowledgment, which mentions the filing date and application number, is received
immediately, but it will take two more days to obtain the Original Representation Sheet.

4. Use your Trademark

Now you can use the Mark, But the use of symbol would take up to 2 years if everything goes smoothly.

5. Issue of Examination Report

Time to Complete: 3 to 6 months
Cost: Free, but Rs. 4000 to Rs. 6000 in the case of any objection.
Now begins the process of questioning your claim to the trademark. First, the government will verify
whether the application has any objections: Here’s what happens if there is:

No Objection: If there is no objection against the application made, then a letter of acceptance will be
issued commonly known as TLA.

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If there is an Objection
Reasons for objections as follows:

 If a proposed trademark is similar/identical or a copy of already registered trademark.

 If a word use is obscene/unlawful and may hurt the sentiment of particular religion /religions.

If you wish to challenge the objection, then an additional fee Rs. 3,000 as well as lawyer’s fee which is a
minimum of Rs. 4,000 to Rs. 5,000 depending on the lawyer is charged.

The lawyer will frame a response to the objection that has arisen and will present the distinctiveness
of the trademark. Hence, it is required for a lawyer to be well informed and aware of business activities.
If a government discarded the objection, the trademark will be eligible for advertisement in trade Mark
journal.

6. Advertisement in Trade Marks Journal

Time to Complete: 3 to 6 months
Cost: Free, but legal fees in case of opposition

 The trademark will be advertised in trademark journal once the application for registration of a
trademark is accepted. It will give a third party an opportunity to oppose the published
trademark.
 The entry of a trademark will entail the date of registration, a list of goods or services for which
it is registered and other particulars. The trademark registration will be 10 years and can be
further renewed.
 If no one opposes the particular trademark within four months of its publication in Trademark
Journal, then a trademark registration certificate will be issued within 6 to 10 months.
 However, if there is any opposition by the third party, the process of obtaining certificate may
extend to many more months.Both parties will get the opportunity to be heard. Legal charges too
will be applicable.

7. Trademark Registration
Time to Complete: Up to 9 months.
Cost: Does not apply
Approximately, average months of nine months time period will be required to issue a trademark
certificate after the publication of advertisement in Trademark Journal. The registered trademark is valid
for a period of 10 years is renewable.

International Treaties Related To Intellectual Property Rights

Some of the important international treaties related to intellectual property rights, of which India is a
member, are as follows:

Berne Convention for the Protection of Literary and Artistic Works

55
Adopted on September 9, 1886 at Berne and entered into force on December 4, 1887. This Convention
on Copyrights rests on three basic principles – national treatment, automatic protection and
independence of protection; it also contains a series of provisions determining the minimum protection
to be granted. It came into force in India on April 1, 1928.

Convention Establishing the World Intellectual Property Organization (WIPO)

Adopted on July 14, 1967 at Stockholm and entered into force on April 26, 1970. WIPO was established
under this Convention with two main objectives - to promote the protection of intellectual property
worldwide and to ensure administrative cooperation among the intellectual property Unions established
by the treaties that WIPO administers. India became a member on May 1, 1975.

Agreement establishing the World Trade Organization (WTO)

Adopted on April 15, 1994 at Marrakesh and entered into force on January 1, 1995. WTO was
established to provide the common institutional framework for the conduct of trade relations among its
Members in matters related to the agreements and associated legal instruments. India became a member
to this agreement on January 1, 1995.

World Trade Organization (WTO) agreement on Trade-Related Aspects of Intellectual Property

Rights (TRIPS Agreement)
Adopted on April 15, 1994 at Marrakesh and entered into force on January 1, 1995. The TRIPS
agreement covers various types of intellectual property and provides guidelines for minimum standards
for protection, procedures and remedies for enforcement of IPR rights and for issues related to dispute
settlement. India became a member on January 1, 1995.

Paris Convention for the Protection of Industrial Property

Adopted on March 20, 1883 at Paris and entered into force on July 7, 1884. It provides basic guidelines
for the protection of industrial property (patents, utility models, industrial designs, trademarks, service
marks, trade names, indications of source or appellations of origin, and the repression of unfair
competition) and has substantive provisions for national treatment, right of priority and common rules.
This treaty came into force in India from December 7, 1998.

Patent Cooperation Treaty (PCT)

Adopted on June 19, 1970 at Washington D.C. and entered into force on January 24, 1978. It facilitates
patent protection for an invention simultaneously in a large number of countries; it came into force in
India from December 7, 1998

Budapest Treaty on the International Recognition of the Deposit of Micro-organisms for the
Purposes of Patent Procedure
Adopted on April 28, 1977 at Budapest and entered into force on August 19, 1980. It provides
guidelines for the deposition of micro-organisms with any "international depositary authority" for the
purpose of patent procedures. This treaty came into force in India from December 17, 2001.

Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks:
Adopted on June 27, 1989 at Madrid and entered into force on December 1, 1995. The Madrid
Agreement facilitates the registration of trademarks outside India; it came into force in India from July
8, 2013.

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Chapter IV of Copyright Act, 1957 – Assignment, transmission and
relinquishment

Chapter IV of Copyright Act, 1957 deals with the ownership of Copyright and the rights of the Owner. It
has five sections from Section 17 to 21 and 19A.

Section 17: First Owner

Section 17 deals with the legal provisions and status of the 'First Owner'. It specified provisions by
which an author of a work shall be the first owner of the copyright.

Section 18: Assignment

 Section 18 deals with the assignment of Copyright. The owner of a copyright in an existing work
or a prospective owner of a copyright of a future work can assign the copyright partly or wholly and
either generally or with some conditions and either for a whole term or part thereof to another
person.
 In case of a prospective work, the actual assignment will happen only the work comes into effect.

Section 19: Modes of Assignment

 No assignment of the copyright in any work shall be void unless it is in writing and signed by the
assignor or his duly authorized agent
 The assignment of copyright in any work shall identify such work and should specify:
 Rights assigned
 Duration (Five years if not specifically mentioned)
 Territorial extent of the assignment (presumed to be within India)
 Amount of royalty payable
 Assignments can be revised, extended or terminated on mutually agreed terms
 If the assignee does not exercise the rights assigned within a period of one year from the date of
assignment, the assignment in respect of such rights shall be deemed to have lapsed after the expiry
of the said period unless otherwise specified in the assignment

Section 19A: Resolving disputes

Deals with two points:

 Copyright Board can conduct inquiry and revoke assignment upon receiving complaint if an
assignee fails to make sufficient exercise of the rights assigned to him.
 The Copyright Board can pass an order which can include recovery of any royalty payable.
 The Board cannot pass order unless it is satisfied that the terms of assignment are harsh to the
assignor

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 No order of revocation of assignment under this sub-section shall be made within a period of five
years from the date of such assignment.

Section 20: Transmission of copyright in manuscript by testamentary disposition

Under a bequest, a person is entitled to the manuscript of a literary, drama, musical or artistic work, and
if the work was not published before the death of the testament, the bequest shall, unless a contrary
intention was made by the testator in his will or codicil, be construed as including the copyright in the
work in so far as the testator was the owner of the copyright immediately before his death.

 Manuscript = original document where the work is, in written or unwritten form

Section 21: Relinquishing copyright by the author

 Author of a work may relinquish all or any rights by sending a notice to the Registrar of
Copyrights in the prescribed form and thereupon such rights cease to exist
 Registrar of Copyrights shall publish about the notice in the Official Gazette in such a manner he
may deem fit
 The relinquishment of rights shall not affect any rights subsisting in favor of any person on the
date of the notice
 Rule 5 of Copyright Rules, 1958 says that Form I should be used to submit the notice of
relinquishment of copyright.

Right of author to relinquish copyright

The author of a work may relinquish all or any of the rights comprised in the copyright in the work by
giving notice in the prescribed from to the Registrar of Copyrights and thereupon such rights shall,
subject to the following conditions, cease to exist from the date of the notice.

On receipt of a notice, the Registrar of Copyrights shall cause it to be published in the Official Gazette
and in such other manner as he may deem fit.

The relinquishment of all or any of the rights comprised in the copyright in a work shall not affect any
rights subsisting in favour of any person on the date of the notice.

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IPR – 2

Copyright Ownership
Copyright ownership gives the holder of the copyright in an original work of authorship six exclusive
rights:
 The right to reproduce and make copies of an original work;
 The right to prepare derivative works based on the original work;
 The right to distribute copies to the public by sale or another form of transfer, such as rental or
lending;
 The right to publicly perform the work;
 The right to publicly display the work, and
 The right to perform sound recordings publicly through digital audio transmission.
The categories of things that count as an original work of authorship include literature, computer
programs, dramatic scripts, choreographed or pantomimed work, motion pictures, video art, graphics,
sculptures, and architectural plans. Each of these categories is broadly construed. When any of these
rights are infringed with regard to an original work of authorship, the holder of the rights may bring a
copyright lawsuit to enforce those rights.
However, any of these six rights or some aspect of them can be transferred. Two methods of transfer are
licensing and assignment. If the transfer is on an exclusive basis, it has to be in writing and signed by the
copyright owner or an authorized agent. Nonexclusive transfers of rights need not be in writing.

Who Owns the Copyright?

The author owns the rights associated with an original work of authorship. The “author” is usually the
person who creates the copyrightable expression and actually fixes it in a tangible medium.
However, some original works of authorship are “works for hire.” In the most straightforward cases, this
means that an employer or a commissioning entity has a contract with the creator to create the work, and
the employer paid for the work and took the financial risks associated with it. The employer is the initial
owner of the copyright and has the six exclusive rights mentioned above.

Copyright in works created by an employee within the scope of employment, primarily in the
workplace, and on the clock is likely to be found to be work for hire. Courts will look at whether the
work was started in order to serve the employer. Similarly, a work that is created by an independent
contractor can be considered a work for hire if the parties expressly agree it is for hire in a written,
signed instrument, and the work is a contribution to a collective work, part of a motion picture or
audiovisual work, a translation, a compilation, a supplementary or instructional text, a test or its
answers, or an atlas.

In some cases, two or more authors come together to create a joint work or a collective work. Who owns
the copyright then? Assuming that the authors intended to merge their contributions into an inseparable
whole, the authors of a joint work are co-owners of the copyright unless there is an express assignment
of copyright.

An author of an individual work in a collective work, such as an anthology, maintains his or her
copyright in his or her own contribution unless there is a contract specifying otherwise. However, the

59
compiler or editor of a collection keeps copyright in the portion of the work he or she authored as well
as the selection and arrangement of the works.

'Literary Works' for Copyright Protection

Under Section 13 of the Copyright Act 1957 copyright subsists in original, literary, dramatic, musical
and artistic works, cinematographic films and sound recordings. Section 2(o) of the act provides an
inclusive definition of 'literary works', stating that the term "includes computer programs, tables and
compilations, including computer databases", but it does not set down which works are deemed to be
literary. However, the explanation to Section 2 states that the term 'literary works' is not confined to
works of literature in the commonly understood sense, but must be taken to include all works expressed
in writing, no matter whether they have literary merit. Thus, the definition is not exhaustive and all
literary works satisfying the criterion of originality are entitled to protection under the act.

In addition to an original work created by the author, the adaptations and abridgements of that work
qualify for protection as original works having independent copyright. However, copyright in an
adaptive work is subordinate to the rights in the original work. Adaptation involves the transformation of
a work by incorporating changes which render it unrecognizable in appearance, but which do not create
a new work in substance. An abridgement preserves the substance or essence of the work in language
suited to such purpose, where the language is substantially different from that of the original. In The
Chancellor Masters and Scholars of The University of Oxford v Narendera Publishing House(1) the
books at issue, which gave step-by-step solutions to questions from the original textbooks, were
considered to be adaptive works and thus capable of independent copyright protection. Similarly,
in University of London Press Ltd v University Tutorial Press Ltd (1916) question papers set by
university examiners were considered to be literary works. New editions of literary works may have two
copyrights attached: one belonging to the author in the original work and the second belonging to the
editors in the additions or rearrangements. Historical works are not copyrightable in themselves,
although the manner in which they are presented may make them eligible for copyright protection.

In Burlington Home Shopping Pvt Ltd v Rajneesh Chibber(2) a mail order service company developed a
customer database which the defendant used to establish relationships with the plaintiff's customers. The
court held that a "compilation of addresses developed by anyone by devoting time, money, labour and
skill to the sources amounts to a 'literary work', wherein the author has copyright". Accordingly, the use
of the database by the defendant was considered to be infringement.
Dictionaries are also subject to copyright if the use of skill, labour and judgement can be proven.
Although, in the case of a compilation, the amount of originality is small, even that small amount is

60
protected by law and nobody is entitled to steal or appropriate the result of another's intelligence, skill or
labour as shown in such works.(3)
Slogans and titles, if original or fanciful and arbitrary, are also entitled to copyright protection.
However, it is also essential that they have acquired secondary significance and are continuously used in
publicity. In Pandian Arivali v Kamal Hassan(4) the title of an unpublished work - "Magalir Mattum",
meaning 'the dead body' - was held not to be copyrightable and anybody could adopt it. The court stated
that "there is no property in the name which is the term of description used to identify the work and any
person can adopt it". Similarly, annotations can be protected by copyright if they involve the exercise of
intelligence and skill in making the text easily understood - this constitutes an addition to the work
which is not superficial.

The Concept of Intellectual Property

Intellectual property, very broadly, means the legal property which results from intellectual activity in
the industrial, scientific and artistic fields. Countries have laws to protect intellectual property for two
main reasons. One is to give statutory expression to the moral and economic rights of creators in their
creations and such rights of the public in access to those creations. The second is to promote, as a
deliberate act of government policy, creativity and the dissemination and application of its results and to
encourage fair trading which would contribute to economic and social development.
Generally speaking, IP law aims at safeguarding creators and other producers of intellectual goods and
services by granting them certain time- limited rights to control the use made of those productions.
These rights do not apply to the physical object in which the creation may be embodied but instead to
the intellectual creation as such. IP is traditionally divided into two branches: “industrial property and
copyright”. The convention establishing the World Intellectual Property Organization (WIPO),
concluded in Stockholm on July 14, 1967 (Art. 2(viii) provides that
“intellectual property shall include rights relating to:
1) literary, artistic and scientific works:
2) performances of performing artists, phonograms and broadcasts;
3) inventions in all fields of human behaviour;
4) scientific discoveries;
5) industrial designs;
6) trademarks, service marks, and commercial names and designations;
7) protection against unfair competition and all other rights resulting from intellectual activity in
industrial scientific, literary or artistic fields”.
The areas mentioned under (1) belong to the copyright branch of intellectual property. The areas
mentioned in (2) are usually called “neighboring rights”, that is, rights neighboring on copyright. The
areas mentioned under 3, 5 and 6 constitute the industrial property branch of IP. The areas mentioned
may also be considered as belonging to that branch.
The expression industrial property covers inventions and industrial designs. Simply stated, inventions
are new solutions to technical problems, and industrial designs are aesthetic creations determining the
appearance of industrial products. In addition, industrial property includes trademarks, service marks,

61
commercial names and designations, including indications of source and appellations of origin, and
protection against unfair competition. Hence the aspect of intellectual creations -although existent -is
less prominent, but what counts here is that the object of industrial property typically consists of signs
transmitting information to consumers, in particular, as regards products and services offered on the
market, and that the protection is directed against unauthorized use of such signs which is likely to
mislead consumers and misleading practices in general.

Scientific discoveries are not the same as inventions. The general treaty on the international recording of
scientific discoveries /1978/ defines a scientific discovery as ‘the recognition of phenomena, properties
or laws of the material universe not hitherto recognized and capable of verification. “(Art. 1(1)(i)).
Inventions are new solutions to specific technical problems. Such solutions must, naturally rely on the
properties or laws of the materials universe /otherwise they could not be materially or ‘technically’
applied/, but those properties or laws need not be properties or laws’ not hitherto recognized’. An
invention puts to new use, to new technical use, the said properties or laws, whether they are recognized
(“discovered”) simultaneously with making the invention or whether they were already recognized
(“discovered”) before and independently from the invention.

Industrial and cultural development may be favored by stimulating creative activity and facilitating the
transfer of technology and the dissemination of literary and artistic works. In the Ethiopian legal system
too the protection of intellectual property rights is afforded at constitutional level. The FDRE
Constitution recognizes that every Ethiopian citizen has the right to ownership of private property with
certain restrictions. Article 40(2) defines private property as any tangible or intangible product which
has value and is produced by the labor, creativity, enterprise or capital of an individual citizen,
associations which enjoy juridical personality under the law. Thus, the constitution declares protection
for every property whether it is tangible or intangible. That means protection is afforded equally for
intellectual property rights as any other property since they are intangible products.

It is difficult to determine what types of ownership we should allow for non corporeal, intellectual
objects, such as writings, inventions and secret business information. There are intellectual properties
which are not products of the mind. For instance, all trademarks are not products of the mind.
Trademarks creation does not necessarily require intellectual activity. The same holds true for
geographic indication. They don’t require the work of the mind like patent and copyright.
IP is a bundle of legal rights resulting from intellectual creativity in industrial, scientific, artistic and
literary fields. This definition is from the point of view of rights. IP is legal protection accorded to works
of the mind in distinction from manual work (result of physical labour). It is a legal protection accorded
to incorporeal ownership.

Regarding protection of IP rights, there were historical, philosophical and epistemological problems.
Historically, reservation exists as to the protection of such rights as they don’t exhibit essential
characteristics of property, i.e. material existence. They consider corporeal chattels only as propriety.
For them property should be subject to appropriation/occupancy/.
The other problem is related to problems of philosophy. They believed that human beings cannot be
regarded as a creator of something. They say human beings cannot create something. Which is also
reflected in religions? The problems also relate with epistemology. What we reflect is what we observe
from the world (our experience, life experience). The then contemporary writers wrote that IP lacks
essential characters to be considered property.

Scope of Intellectual Property Rights

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Intellectual property rights include copyright, patent, trademark, geographic indication of origin,
industrial design, trade secrets, database protection laws, publicity rights laws, laws for the protection of
plant varieties, laws for the protection of semi-conductor chips (which store information for later
retrieval), etc.
There is a conventional mode of classification of intellectual property as industrial property and
copyrights. Industrial properties include inventions (patent), property interest on minor invention (Utility
model certificate) and commercial interests (Trade Marks, trade names, geographical indications, and
industrial design), plant breeder rights, biodiversity, etc.
Patents
A patent is a type of intellectual property right which allows the holder of the right to exclusively make
use of and sale an invention when one develops an invention. Invention is a new process, machine,
manufacture, composition of matter. It is not an obvious derivation of the prior art (It should involve an
inventive step). A person who has got a patent right has an exclusive right. The exclusive right is a true
monopoly but its grant involves an administrative process.
Copyright
It is an intellectual property which does not essentially grant an exclusive right over an idea but the
expressions of ideas which makes if different from patent law. Patent is related with invention -
technical solution to technical problems. Copyright is a field which has gone with artistic, literary
creativity- creativity in scientific works, audio-visual works, musical works, software and others. There
are neighboring rights. These are different from copyright but related with it – performers in a theatre,
dancers, actors, broadcasters, producers of sound recorders, etc. It protects not ideas but expressions of
ideas as opposed to patent.
Copyright protects original expression of ideas, the ways the works are done; the language used, etc. It
applies for all copyrightable works. Copyright lasts for a longer period of time. The practice is life of
author plus 50 years after his/her life. Administrative procedures are not required, unlike patent laws, in
most laws but in America depositing the work was necessary and was certified thereon but now it is
abolished.
Industrial Design Law
Some call this design right (European) and some call it patentable design, industrial design (WIPO and
other international organization). A design is a kind of intellectual property which gives an exclusive
right to a person who has created a novel appearance of a product. It deals with appearance: how they
look like. Appearance is important because consumers are interested in the outer appearance of a
product. It is exclusively concerned with appearance, not quality.
The principles which have been utilized in developing industrial design law are from experiences of
patent and copyright laws. It shares copyright laws because the design is artistic. It shares patent law
because there are scientific considerations. Design law subsists in a work upon registration and
communication. It makes them close to patent law since they are also founded in patent law. Duration is
most of the time 20 years like the patent law trademark Rights law.
Trademarks Rights Law
It is a regime of the law giving protection to graphic representation to words or logos or depending on
the jurisdiction question such as sound or smells which are distinctive in nature and serve as source
identification. There is also a recent phenomenon which is representing goods in their smell and sound.
It is to be found on the goods associated with them. It enables the customer to identify the goods from
others. They serve as a source identifier. Trademarks perform communication function. Once there is a
valid representation, it gives the mark owner an exclusive right. It begins with registration and
publication of the mark. But there are exceptions which serve what trademarks registered serve which
are not registered. It means they deserve protection even though they are not registered. They exist
forever so long as the good with which they are associated continue to be sold. But they require renewal.
Right of Publicity

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It protects the right to use one’s own name or likeness for commercial purposes.
Geographic Indication
It is indications on products of the geographic origin of the goods. It indicates the general source. The
indication relates to the quality or reputation or other characteristics of the good. For example, “made in
Ethiopia” is not influenced by the geographical Indication. Geographical indications are sometimes
called appellations of origin. For example, “Sheno lega”, “Shampagne” (name of a region in France) are
geographical indications.
Trade Secrets
It gives the owner of commercial information that provides a competitive edge the right to keep others
from using such information if the information was improperly disclosed to or acquired by a competitor
and the owner of the information took reasonable precautions to keep it secret. It protects confidential
secrets of some commercial value. The holder of the secret wants this information to be protected; some
protect the holder from an unauthorized disclosure of the information. A tort law, unfair competition or
contract law can protect such information which is secret /confidential information/. The holder (owner)
has to do his/her best to keep the information secret. Trade secrets exist without registration as it is to
make the information public, for example, the formula of Coca Cola.  Information that are protected in
trade secrets can be patentable if they are novel and non obvious. But it is, most of the time, not to make
the secret public. However, their full-fledged IP rights are contestable.
Nature of Intellectual Property
Intellectual properties have their own peculiar features. These features of intellectual properties may
serve to identify intellectual properties from other types of properties. Thus, we will discuss them in
brief.
1. Territorial
Any intellectual property issued should be resolved by national laws. Why is it an issue? Because
intellectual property rights have one characteristic which other national rights do not have. In ownership
of intellectual property of immovable properties, issues of cross borders are not probable. But in
intellectual properties, it is common. A film made in Hollywood can be seen in other countries. The
market is not only the local one but also international. If a design in China is imitated by another person
in France which law would be applicable?
2. Giving an exclusive right to the owner
It means others, who are not owners, are prohibited from using the right. Most intellectual property
rights cannot be implemented in practice as soon as the owner got exclusive rights. Most of them need to
be tested by some public laws. The creator or author of an intellectual property enjoys rights inherent in
his work to the exclusion of anybody else.
3. Assignable
Since they are rights, they can obviously be assigned (licensed). It is possible to put a dichotomy
between intellectual property rights and the material object in which the work is embodied. Intellectual
property can be bought, sold, or licensed or hired or attached.
4. Independence
Different intellectual property rights subsist in the same kind of object. Most intellectual property rights
are likely to be embodied in objects.
5. Subject to Public Policy
They are vulnerable to the deep embodiment of public policy. Intellectual property attempts to preserve
and find adequate reconciliation between two competing interests. On the one hand, the intellectual
property rights holders require adequate remuneration and on the other hand, consumers try to consume
works without much inconvenience. Is limitation unique for intellectual property?
6. Divisible (Fragmentation)
Several persons may have legally protected interests evolved from a single original work without
affecting the interest of other right holders on that same item. Because of the nature of indivisibility,

64
intellectual property is an inexhaustible resource. This nature of intellectual property derives from
intellectual property’s territorial nature. For example, an inventor who registered his invention in
Ethiopia can use the patent himself in Ethiopia and License it in Germany and assign it in France. Also,
copyright is made up of different rights. Those rights may be divided into different persons: publishers,
adaptors, translators, etc.
Doctrine of Deceptive similarity’

‘Deceptive similarity’ is one of the vital tribulations that is sought to be resolved by the Trademarks Act,
1999. As per section 2 (h) a mark shall be deemed to be deceptively similar to another mark if it so
nearly resembles that other mark as to be likely to deceive or cause confusion and mark as per section 2
(m) includes a device, brand, heading, label, ticket, name signature, word, letter, numerical, shape of
goods, packaging or, combination of colors or any combination there of.

Deception can arise with regard to13 :

a) Deception as to goods
b) Deception as to trade origin
c) Deception as to trade connection
Thus, it can be said that a trademark serves to identify source of goods and as indicator as origin of
goods. A trademark also guarantees a consumer of the consistent quality of the products upon which it is
used.
Test For Deceptive Similarity Of Trade Marks

The test for deciding the deceptive similarity of the competing mark in an action for infringement or in
an action of passing off are similar. In the case PARLE PRODUCTS (P) LTD. V J.P. & CO.
MYSORE2, it was held that "the test for determination of a trade mark to be deceptively similar to the
registered one would be, if a person would be likely to accept the another one, if offered, instead of
original one".

In the case of a statutory right, once the Court comes to the conclusion that the defendant has adopted a
mark, which is identical or deceptively similar mark to the registered mark and is used in respect of
same or similar goods, no further evidence is required to be produced by the registered proprietor of the
mark to establish infringement. On the other hand, if a person seeks to enforce common law rights based
on prior use, the defendant may escape liability by showing that the added matters used in conjunction
with the mark are capable of distinguishing his goods from those of the others.

The factors to be taken in consideration for the deceptive similarity are as follows:

i. The nature of the marks i.e. whether coined/ descriptive/ non-descriptive/ surname/ geographical
origin/ device/ letters/ numerals/ combination of two or more of the above
ii. The degree of resemblance between the competing marks and essential features thereof i.e.
phonetic, visual or structural.
iii. The nature of the goods in respect of which they are used or likely to be used as trade marks.
iv. The similarity of the nature, character, and purpose of the goods of the rival traders.
v. The class of purchasers who are likely to buy the goods bearing the marks.
vi. The mode of purchase of the goods or of placing orders for the goods.

Any other surrounding circumstances

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In Bombay Metal Works (P) Ltd v. Tara Singh & Ors 2006 (33) PTC (Bom.)(DB), is one such case
where even after obtaining an injunction, the plaintiff is forced to make attempts to sustain the
protection of marks.

Facts of the case

Tara Sing & Ors were restrained by an injunction order, from manufacturing, selling, offering for sale,
advertising directly or indirectly dealing in cycle parts under the impugned Ball Head Racers and Screw
Head Racers or any other packing which could be substantially similar to that of Bombay Metal Works
Ltd.

Despite the said order, Tara Singh continued the manufacturing and selling of the goods there by
violating the said order. Aggrieved by the non-compliance of the order, Bombay Metal Works filed a
contempt application under section 2 (a), 11 and 12 of the Contempt of the Court Act. Surprisingly the
Judge not only rejected the contempt application, but also gave a finding that the impugned packaging of
Tara Singh cannot be considered as deceptively similar to the packing of the Bombay Metal Works.
Aggrieved by the said order, Bombay Metal works preferred the appeal.

Contentions

The main contention of the Tara Singh was that the appeal is not maintainable and that it shall lie to the
High Court only if the contemnor has been punished and not in any other case. On the other hand,
Bombay Metal Works contented that they have filed the appeal not as contempt appeal but as the First
Appeal Order (FAO) and hence it is maintainable.

Judgment

The Appeal court on perusal of earlier single bench orders found that the parties had virtually settled
their dispute and Tara Singh had given an undertaking that they shall change the color scheme and out
look of their packaging. The Appellate Court further opined that as Tara Singh had agreed to change the
color scheme and design of the packing, there is a prima facie breach of an interim injunction order and
hence Tara Singh & Ors are estopped from acting contrary to their undertaking. Holding the above line,
the Court upheld the appeal.

This case underlines the difficulty of protecting the marks. The undertaking by the respondents in the
case itself proves that they are accepting that their packing is deceptively similar to that of the
appellants. One of the significant tactics primarily applied by new manufactures is to pass off their
goods as that of another. The trademark holder needs to be alert of the infringements and the prospective
infringements. Close monitoring of the developments has emerged as a key factor. Timely judicial
intervention is another prime factor that has become inevitable to the protection of a trademark.

As per US Trademark Act of 1946, Title VI- Remedies

§ 32 (15 U.S.C. § 1114). Remedies; infringement; innocent infringers (

1) Any person who shall, without the consent of the registrant—

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(a) use in commerce any reproduction, counterfeit, copy, or colorable imitation of a registered mark in
connection with the sale, offering for sale, distribution, or advertising of any goods or services on or in
connection with which such use is likely to cause confusion, or to cause mistake, or to deceive; or

(b) reproduce, counterfeit, copy or colorably imitate a registered mark and apply such reproduction,
counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles or
advertisements intended to be used in commerce upon or in connection with the sale, offering for sale,
distribution, or advertising of goods or services on orin connection with which such use is likely to cause
confusion, or to cause mistake, or to deceive, shall be liable in a civil action by the registrant for the
remedies hereinafter provided.

Under subsection (b) hereof, the registrant shall not be entitled to recover profits or damages unless the
acts have been committed with knowledge that such imitation is intended to be used to cause confusion,
or to cause mistake, or to deceive. As used in this paragraph, the term ―any person‖ includes the United
States, all agencies and instrumentalities thereof, and all individuals, firms, corporations, or other
persons acting for the United States and with the authorization and consent of the United States, and any
State, any instrumentality of a State, and any officer or employee of a State or instrumentality of a State
acting in his or her official capacity. The United States, all agencies and instrumentalities thereof, and all
individuals, firms, corporations, other persons acting for the United States and with the authorization
and consent of the United States, and any State, and any such instrumentality, officer, or employee, shall
be subject to the provisions of this chapter in the same manner and to the same extent as any
nongovernmental entity

Rights and limitations of a patentee

Rights of a Patentee
The owner of the "Patent", i.e. patentee is entitled to deal with such property in the same manner as
owner of any other moveable property.
a. The patentee can sell the whole or part of this property (Patent).
b. He can also grant license to other(s) to use the patented property.
c. He can also assign such property to any other(s).
Such sale, license or assignment of such patented property naturally has to be for valuable consideration,
acceptable mutually.
 
Period of Patent
1. In respect of process patents relating to drugs and food, the term is five years from the date of
sealing the patents or seven years from the date of the patent whichever is shorter.
2. In respect of all other patents the term is fourteen years from the date of the patent. A patent is
kept alive only by paying the renewal fee from time to time

Rights and limitations of patentee

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Patentee is a person for the time being entered in the register of patents as the grantee or proprietor of
patent. Patentee is the one to whom patent has been granted. Patentee is entitled to deal with his such
property in the same manner as the owner of any other movable property deals with his property.

Rights of the patentee are enshrined under section 48 of the Patents Act, 1970.  All rights granted to
patentee are conditional which are imposed under section 47 of the Act.

Such conditions are : 1. Manufacture or import of the patented invention may be made by the
government for the purpose of its own use. 2. Any process in respect of which the patent is granted may
be used by or on behalf of the government for the purpose merely of its own use.

Any patented process/product may be used for the purpose of experiment or research or imparting of
knowledge to pupils. 4. In case of a patent in respect of any medicine or drug, the medicine or drug may
be imported by the government for the purpose merely of its own use or for distribution in any
dispensary , hospital or other medical institution maintained by or on behalf of the government.

Patentee has been enshrined with following rights :

 Where the patent is for a product, the exclusive right to prevent third parties, who do not have his
consent, from act of making, using, offering for sale, selling or importing for those purposes that product
in India.

 Where the subject matter of patent is a process, the exclusive right to prevent third parties, who do
not have his consent, from the act of using that process, and from the act of using, offering for sale,
selling or importing for those purposes the product obtained directly by that process in India.

The rights conferred under the Act are:

 To exploit the patent.

 To license the patent to another (sec.70).
 To assign the patent to another (sec.70).
 To surrender the patent to another(sec.63).  To sue for the infringement of the patent.

The Act provides certain limitations on the exercise of rights. They are: 1) Government use of patent.
2) Compulsory licenses. 3) Use of inventions for Defence purposes. 4) Revocation for non working of
patents. 5) Restored patents.

1) Government use of patent: • Section 100 of the provides that at any time after the application for a
patent had been filed at the patent office or patent has been granted, the central government may use the
invention for government purposes. • May be used or even acquired for its own use. • Can do without
consent of patentee or even without payment of royalties. • Includes right to sell.

2) Compulsory licenses • Section 84 stipulates that at any time after the expiration of three years from
the date of grant of patent, any interested person may make an application to the controller for grant of
compulsory license on patent, if the patent is not worked satisfactorily to meet the reasonable
requirements of the public, at a reasonable price.

3) Use of inventions for defence purposes • Such patents may be subject to certain secrecy provisions.

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4) Revocation for non working of patents • A patent may be revoked in cases where there has been no
work or unsatisfactory result to the demand of public in respect of patented invention.

5) Restored patents • Once lapsed, a patent may be restored, provided that few limitations are imposed
on the right of the patentee.

Land law 1

Land Ownership
. This determines who controls the land, how it is transferred, how it is taxed, and how liability will be
shared, among other things.

Determining which form of ownership is best for you depends on several factors, including the number
of people who will be sharing ownership, liability concerns, how income from the land is taxed while
you are alive, and how the land is taxed when it is transferred. There is a range of land ownership
options. Bringing your goals, or those of your family, to an estate planning attorney with land
conservation experience is a great way to sort out which type of personal or business ownership is the
best fit. Below are some personal forms of ownership that families have used to achieve their goals:

 Individual Ownership. The ownership of the land is by a single person. Upon the death of the
owner, the land is transferred according to the terms of his or her will.
 Joint Tenants. The ownership of land is by two or more people. Upon the death of an owner,
shares in the property automatically transfer to surviving owners.
 Tenants in Common. The ownership of property is by two or more persons in specific shares. If
one person dies, their share passes according to the terms of their will.

Given that many landowners own their land for their personal enjoyment and privacy, not for income, it
may seem odd to consider changing the ownership of the land to a business structure. However, business
ownerships can provide an effective mechanism for transferring ownership of your land from you to
your family while reducing taxes and limiting liability. Below is a list of some business forms of
ownership that familie shave used to achieve their goals:

 General Partnership. The ownership of the land is joint: it is between two or more people.
Owners share profits, losses, and liability.
 Family Limited Partnerships. There is a legal partnership agreement between members of a
family for the management and control of the land. This is sometimes used to minimize gift and
estate taxes.

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 Limited Liability Company. Ownership is divided into shares and the rules that run the
company are put into a contract and agreed to by all the initial shareholders. This is sometimes used
to minimize taxes.

protected forest 

 A protected forest is a forest with some amount of legal or constitutional protection, or where the
habitat and resident species are legally accorded protection from further depletion.
 Protected forests of India were introduced in the Indian Forest Act, 1927 in British India and
were retained after Indian independence. The 17% of forests that are not included in the
categories of reserved or protected forests, are called unclassified forests.
A protected forest is a specific term to denote forests with some amount of legal, and / or constitutional
protection in certain countries, besides being a generic term to denote forests where the habitat and
resident species are legally accorded protection and are protected from any further depletion. In India,
the term was first introduced in the Indian Forest Act, 1927 to denote forests with a limited amount of
protection in British India. The category of protection, and the term was retained after Indian
independence

DIFFERENCE BETWEEN RESERVED FOREST AND PROTECTED FOREST

 Land rights to forests declared as reserved forest or protected forest are typically acquired and owned
by the Government of India , both are declared by the government .
 The main difference between them is rights to all activities like hunting, grazing ,etc in reserved forest
is banned unless specific orders are issued and in protected forest rights to activities like hunting and
grazing are sometimes given to communities living on the fringes of the forest who sustain their
livelihood partially or wholly from forest resources and products .
 Thus reserved forests enjoy a higher degree of protection with respect to protected forests.
WHY ARE FORESTS PROTECTED?
Forest protection is the preservation or improvement of a forest threatened or affected by abuse or out of
balance nature. The reasons to protect forest is to prevent it from
• Aggressive or unsustainable farming and logging.
• Expanding city development caused by population explosion and the resulting urban sprawl.

Bona Vacantia'
A legal term for the situation in which property is left without any clear owner. The precise handling of
such property varies depending on the jurisdiction. In most cases, the property is held by the
government, and may be recovered by rightful owners or heirs. Bona vacantia property, which remains
unclaimed after a certain period of time, sometimes reverts to government ownership. In other cases, the
government is obliged to serve as custodian for bona vacantia property into perpetuity.

BREAKING DOWN 'Bona Vacantia'

Common situations where property can become abandoned are when a person dies with no known heirs
or next of kin, when a business is dissolved or when the property owner leaves a jurisdiction without
leaving any contact information

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MEANING AND OBJECT OF PUBLIC PURPOSE

In India there is concept of welfare state; hence it is very necessary to know the various ways to reach
the concept of welfare state so acquisition of private land for public purpose is one of the way. In
Black’s Law Dictionary, the term public purpose has been said to have the objective of “promotion of
the public health, safety, morals, general welfare, security, prosperity and contentment of all the
inhabitants or residents within a given political division8.

The Land Acquisition Act, 1894 (further referred to as ‘Act’), defines ‘Public Purpose’ 2 as including:
(i) The provision of village-sites, or the extension, planned development or improvement of existing
village sites; (ii) The provision of land for town or rural planning; (iii) The provision of land for planned
development of land from public funds in pursuance of any scheme or policy of Government and
subsequent disposal thereof in whole or in part in lease, assignment or outright sale worth the object of
securing further development as planned; (iv) The provision of land for a corporation owned or
controlled by the State; (v) The provision of land for residential purposes to the poor or landless or to
persons residing in areas affected by natural calamities, or to persons displaced to affected by reason of
the implementation of any scheme undertaken by Government, any local authority or a corporation
owned or controlled by the State; (vi) The provision of land for carrying out any educational, housing,
health or slum clearance scheme sponsored by Government, or by any authority established by
Government for carrying out any such scheme, or, with the prior approval of the appropriate
Government, by a local authority or a society registered under the Societies Registration Act, 1860 (21
of 1860), or under any corresponding law for the time being in force in a State, or a cooperative society
within the meaning of any law relating to co-operative societies for the time being in force in any State;
(vii) The provision of land for any other scheme of development sponsored by Government or, with the
prior approval of the appropriate Government, by a local authority;

JUSTIFIABILITY OF PUBLIC PURPOSE

While the Government has frozen land acquisition for Special Economic Zones, it is working on
broadening the definition of public purpose to balance the concerns of land losers with what "is useful
for the general public." According to a presentation made to the Prime Minister before some years by
the Rural Development Ministry, in the proposed Land Acquisition Amendment Bill 2007, "public
purpose" has been classified into three categories:

• Strategic purposes, relating to the defence forces or work "vital to the state"
• Public infrastructure: Electricity, communication, water supply, mining, “public facilities"
• Projects "useful for the general public"

Andhra Pradesh Assigned Lands (Prohibition of Transfers) Act, 1977

An Act to prohibit transfers of certain lands assigned to landless poor persons in the State of Andhra
Pradesh.
Be it enacted by the Legislature of the State of Andhra Pradesh in the Twenty-eight Years of the
Republic of India as follows:-
1. Short title, extent and commencement:- (1) This Act may be called the Andhra Pradesh Assigned
Lands (Prohibition of Transfers) Act, 1977.

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(2) It extends to the whole of the State of Andhra Pradesh.
(3) It shall be deemed to have come into force on the 21st January, 1977.
Object & Reasons6
2. Definitions:- In this Act, unless the context otherwise requires,-
(1) "assigned land" means lands assigned by the Government to the landless poor persons under the
rules for the time being in force, subject to the condition of non-alienation and includes lands allotted or
transferred to landless poor persons under the relevant law for the time being in force relating to land
ceilings ; and the word "assigned" shall be construed accordingly ;
Explanation:- A mortgage in favour of the following shall not be regarded as an alienation, namely,-
(i) the Central Government, or the State Government or any local authority ;
(ii) any co-operative society registered or deemed to be registered under the Andhra Pradesh Co-
operative Societies Act, 1964; and
(iii) any bank which includes,-
(a) the Agricultural Development Bank ;
(b) the Reserve Bank of India constituted under the Reserve Bank of India Act, 1934 ;
(c) the State Bank of India constituted under the State Bank of India Act, 1955 ;
(d) a subsidiary bank as defined in the State Bank of India (Subsidiary Banks) Act, 1959 ; and
(e) a corresponding new bank constituted under Section 3 of the Banking Companies
(Acquisition and Transfer of Undertakings) Act, 1970 ;
(2) "Government" means the State Government ;
(3) "landless poor person" means a person who owns an extent of land not more than 1.011715
hectares (two and half acres) of wet land or 2.023430 hectares (five acres) of dry land or such other
extent of land as has been or may be specified by the Government in this behalf, from time to time and
who has no other means of livelihood.
Explanation:- For the purposes of computing the extent of land under this Clause, 0.404686 hectares
(one acre) of wet land shall be equal to 0.8093672 hectares (two acres) of dry land ;
(4) "notification" means a notification published in the Andhra Pradesh Gazette and the word "notified"
shall be construed accordingly;
(5) "Prescribed" means prescribed by rules made by the Government under this Act ;
(6) "transfer" means any sale, gift, exchange, mortgage with or without possession, lease or any other
transaction with assigned lands, not being a testamentary disposition and includes a charge on such
property or a contract relating to assigned lands in respect of such sale, gift, exchange, mortgage, lease
or other transaction.
3. Prohibition of transfer of assigned lands:- 
(1) Where before or after the commencement of this Act any land has been assigned by the Government
to a landless poor person for purpose of cultivation or as a house-site then, notwithstanding to the
contrary in any other law for the time being in force or in the deed to transfer or other document relating
to such land, it shall not be transferred and shall be deemed never to have been transferred, and
accordingly no right or title in such assigned land shall vest in any person acquiring the land by such
transfer.
(2) No landless poor person shall transfer any assigned land, and no person shall acquire any assigned
land, either by purchase, gift, lease, mortgage, exchange or otherwise.
(3) Any transfer or acquisition made in contravention of the provision of sub-section
(a) of sub-section (b) shall be deemed to be null and void.

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(4) The Provisions of this section shall apply to any transaction of the nature referred to in sub-section
(2) in execution of a decree or order of a Civil Court or of any award or order of any other authority.
(5) Nothing in this section shall apply to an assigned land which was purchased by a landless poor
person in good faith and for valuable consideration from the original assignee or his transferee prior to
the commencement of this Act and which is in the possession of such person for purposes of cultivation
or as a house-site on the date of such commencement.
4. Consequences of breach of provisions of Section 3:- (1) If in any case, the District Collector or any
other officer not below the rank of a[Mandal Revenue Officer], authorised by him in this behalf, is
satisfied that the provisions of sub-section (1) of Section 3, have been contravened in respect of any
assigned land, he may, by order,-
(a) take possession of the assigned land, after evicting the person in possession in such manner as
may be prescribed ; and
[(b) (i) reassign the said resumed land, other than those lands/areas as may be notified by the
Government from time to time in public interest and for public purpose, to the transferee who
purchased the land in good faith and for valuable consideration on or before 29th January, 2007,
subject to the condition that he/she is landless poor person and is in occupation of the land by
using the said land for agriculture or as house site, as on the date of taking possession by eviction:
Provided that the reassignment in case of transferee shall be limited to only such an extent that
the total holding of the re-assignee including any other land held by him/her does not
exceed 5.00 Acres dry land or 2 1/2 Acres wet land:
Provided further that where the transferee who has purchased the land and got reassignment of
it, or his legal heir, transfers the reassigned land, the land shall be resumed for assignment
to the other eligible landless poor;
(ii) restore the said assigned land, other than those lands/ areas as may be notified by the
Government from time to time in public interest and for public purpose, to the original
assignee, subject to the condition that he or she is landless poor person as on the date of
restoration for one time; or
(iii) assign to other eligible landless poor person:
Provided that the restoration of land shall be limited to only such an extent that the total
holding including any other land held by him/her does not exceed 5.00 Acres dry land or
21/2 Acres wet land:
Provided further that where the original assignee or his legal heir, after first restoration
transfers the assigned land, the land shall be resumed for assignment to the other eligible
landless poor:
Provided also that if no eligible landless poor persons are available in the village/area, the
resumed land will be utilised for public purpose.
6. Exemption:- Nothing in this Act shall apply to the assigned lands held on mortgage by the State or
Central Government, any local authority, a co-operative society, a scheduled bank or such other
financial institution owned, controlled or managed by a State Government or the Central Government, as
may be notified by the Government in this behalf.
7. Penalty:- (1) Whoever acquires any assigned land in contravention of the provisions of sub-section
(2) of Section 3 shall be punished with imprisonment which may extend to six months or with fine
which may extend to two thousand rupees or with both.

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[Provided that any person who has voluntarily disclosed and surrendered the assigned land in his
possession or discloses and surrenders the assigned land in his possession within 90 days from the
commencement of Andhra Pradesh Assigned Lands (Prohibition of Transfers) (Amendment) Act, 2006
shall be exempted from Prosecution.]
(2) Whoever opposes or impedes the District Collector or any person authorised, in taking possession of
any assigned land under this Act shall be punished with imprisonment which may extend to six months
or with fine which may extend to five thousand rupees or with both.
[(2A) Any Officer, violating the provisions under sub-sections (1) and (2) of Section 5 shall be punished
with simple imprisonment which may extend to six months or with fine which may extend to ten
thousand rupees or with both.]
(3) No Court shall take cognizance of an offence punishable under this section, except with the previous
sanction of the District Collector.
8. Protection of action taken:- (1) No suit, prosecution or other legal proceeding shall lie against any
person, officer or authority for anything which is in good faith done or intended to be done in pursuance
of Act or any rules made thereunder.
(2) No suit or other legal proceedings shall lie against the Government for any damage cause or likely to
be caused or for any injury suffered or likely to be suffered, by virtue of any provision of this Act, or for
anything which is in good faith done or intended to be done in pursuance of this Act, or any rules made
thereunder.
9. Power to make rules:- (1) The Government may, by notification, make rules for carrying out all or
any of the purposes of this Act.
(2) Every rule made under this Act shall immediately after it is made, be laid before each House of the
State Legislature if it is in session and if it is not in session, in the session immediately following, for a
total period of fourteen days which may be comprised in one session, or in two successive sessions and
if before the expiration of the session in which it is so laid or the session immediately following, both
Houses agree in making any modification in the rule or in the annulment of the rule shall, from the date
on which the modification or annulment is notified, have effect only in such modified form or shall
stand annulled, as the case may be, so however, that any such modification or annulment shall be
without prejudice to the validity of anything previously done under that rule.
10. Act to override other laws:- The provisions of this Act shall have effect notwithstanding anything
inconsistent therewith contained in any other law for the time being in force or any custom, usage or
contract or decree or order of a Court, Tribunal or other authority.
11. Power to remove difficulties:- If any difficulty arises in giving effect to the provisions of this Act,
the Government may, by general or special order, published in the Andhra Pradesh Gazette, make such
provisions not inconsistent with the provisions of this Act, as appears to them to be necessary or
expedient for the removal of the difficulty :
Provided that no such order shall be made after the expiration of two years from the commencement of
this Act.
12. Repeal of Ordinance 2 of 1977:- The Andhra Pradesh Assigned Lands (Prohibition of Transfers)
Ordinance, 1977 is hereby repealed.

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