Home Speak to a lawyer Meet a lawyer Flat fee services About Blog Careers Contact Us Terms & Conditions Privacy Policy Legal Topics

Consult banking lawyers in Ashburn

Get Legato App on your mobile.

Speak to a Lawyer

× No Result ! According to your search No Lawyer is found.

Don't know whom to connect with?

Read up

Read top blogs from legal experts

Articles that keep you updated with legal knowledge and help you achieve your goals.

See all blogs

Trademark Cease and Desist Notice

A Trademark is referred to as a brand or logo. A trademark is defined as a distinctive sign that identifies certain goods/services as those produced/provided by a specific person/enterprise. A trademark consists of the drawings, symbols, three-dimensional colours and also combination of colours. A trademark can be in the form of words, letters and numerals or the combination of the all the three. A trademark is used by the companies or traders or any firms to distinguish their goods or services from the other companies or traders or firm (who are competitors). It is often observed that the trademark is used by the consumer to make his choice while buying any goods or availing services as there are some expectations with the quality of that particular trademark. Any person who claims to be the owner of a trademark has a right to apply for the registration of its marks. The registration of a trademark shall be for ten years. The registration can be renewed after paying renewal fees. Hence, the trademark prevents other traders from deceiving the consumer.

Cease and Desist Notice

A cease and desist notice is issued in an infringement case. Infringement is defined as the unauthorized use of a trademark. The unauthorized use of a trademark leads to confusion, deception or misunderstanding about the goods or services of the actual company. Infringer means someone who has violated the rights of an individual or an organization. The cease and desist notice must be sent through a registered post to the infringer(trader or company or firm or an individual) who has been committing an act of infringing the rights of the trademark holder. The cease and desist notice acts as a formal request to the infringer (receiver of such notice) to stop and not continue with the act of infringing the rights of the trademark holder (sender of such notice).

The cease and desist notice consists of a detailed description regarding the adverse effects faced by him due to trademark infringement and a timeline within which the receiver must stop or discontinue to use his trademark, etc. A cease and desist notice must also include the warning that if the infringer does not stop or discontinue his act of infringing the rights of the trademark holder, then it will result into the initiation of the legal proceedings against the infringer.

Effects of the Cease and Desist Notice

The effects of sending a cease and desist notice to the party who infringes the right of the trademark owners are as follows:

  • The cease and desist notice establishes the rights of the trademark owners in his trademark.
  • The cease and desist notice is served to the infringer to protect the rights of the trademark owners in future against the same infringer.
  • The notice is served to the infringer with reference to the prevailing law that protects the trademark holder’s right.
  • A bona fide attempt is established by the trademark owner to reach an amicable resolution by sending a cease and desist notice.
  • The notice makes the infringer aware of the law that protects its trademark and also it enables to stop the usage of the trademark by the other party.
  • The cease and desist notice sets as a precedent of the trademark holder who is enforcing his rights.
  • The cease and desist notice states that the non-compliance of the request of the trademark owner will result in a stricter course of legal action and it may involve a legal proceeding.

Case Law

Pest Control (India) Private Limited Vs Pest Control Innovative Private limited

CS (COMM) 258/2016

Delhi High Court- 2nd May 2017

The Pest Control (India) Private Limited had registered its trademark ‘PCI’ in the year 1984under Class 5. ‘PCI’ was not only the Trade name but also the Trademark, House Mark, Service Mark and Trading style since its formation. ‘PCI’ has also been duly registered as a Copyright because it qualifies as an original artistic work of the Pest Control (India) Private Limited. It is also considered as a well-known mark within the Trade Marks Act 1999.

In June 2013, it came to the knowledge of the Pest Control (India) Private limited that the Pest Control Innovative Private limited is using and providing services with an identical and deceptively similar trademark. On 5th June 2013, a cease and desist notice was sent by the Pest Control (India) Private Limited to the Pest Control Innovative Private limited. On 27th August 2013, a reply to the cease and desist notice was filed by the Pest Control Innovative Private limited denying the infringement activities.

The Pest Control (India) Private limited filed a case against the Pest Control Innovative Private limited for relief of permanent injunction, restraining the infringement of trademark, copyright, passing off, delivery up of goods, rendition of accounts of profits and damages of Rs.20,01,000/-. On 18th February 2014, an ex-parte ad-interim injunction was granted in favour of the Pest Control (India) Private limited against the Pest Control Innovative Private limited restraining them from using the Pest Control (India) Private limited’s registered trademark ‘PCI’ or any other deceptively similar trademark for its products. The Pest Control (India) Private limited proved that the Pest Control Innovative Private limited had copied their trademark and Copyright.

The Court granted a permanent injunction in favour of the Pest Control (India) Private Limited. The Pest Control Innovative Private limited was also directed to destroy all their goods and any other infringing material bearing the ‘PCI’ trademark or any other deceptively similar trademark. The Court awarded a sum of Rs. 15,00,000/- to the Pest Control (India) Private limited as damages. Hence, it was held that the use of an infringing trademark by the Pest Control Innovative Private limited had caused injury, loss and damage to the name, business goodwill and reputation of the Pest Control (India) Private Limited.

Conclusion

The cease and desist notice is considered to be one of the effective ways in which the matter can be settled amicably. Hence, before initiating any legal action, a cease and desist letter is issued so that the party does not continue to use the infringed trademark. If the infringer does not stop or discontinue to use the trademark of the owner, then the trademark owner initiates the legal proceedings against the infringer.If the trademark owners are of the opinion that their trademark has been infringed by any other person, then they can take legal action. If it is proved that the trademark has been infringed, then the Court can prevent the other party from using such trademark and can award monetary relief to the trademark owner. Hence, the cease and desist notice helps in preventing the infringer from continuing to violate the trademark of the trademark owner.

IT Department Notice

Income tax department notice is an intimation from the Income Tax department to an individual taxpayer. These notices arise when an individual/assessee, also known as the taxpayer files their income tax return and which is checked by the Income Tax Department. If there is any mistake/discrepancy/error is noticed by the department, then the taxpayer is sent a warning in the form of a notice.

 

Reasons for issuance of notice

  • When income tax returns are not filed for an assessment year.
  • A mismatch in TDS figures between the income tax returns filed by the taxpayer and what is available on the form 26AS records of the income tax department.
  • Any mistakes or errors in the income tax returns filed by the taxpayer.
  • If there is any financial transaction which is known by the income tax department, but the same is not reflected in the records of the filed documents.
  • Sometimes essential details and documents of an individual are missing, in such circumstances; notices are issued asking the individual to submit the same.
  • To carry out the scrutiny process under section 143(1) of the Income-tax Act.

 

Income Tax Department Notices

It is crucial to understand the types of Income Tax notices in order to file your reply as one cannot entirely depend upon a Tax consultant. Given below is a list of notices submitted under the Income Tax Department.

  • Notice under section 131(1A) of the Income Tax 1961

Section 131(1A) of the Income Tax 1961 states the provision relating to the Income that is concealed or likely to be concealed. The notice is sent by the Income Tax Department when the Assessing Officer believes that an individual is hiding his income or is likely to hide his income. The notice is an intimation that the Assessing Officer initiates an investigation/enquiry. After giving reasons, the Assessing Officer can impound the books of accounts or any other documents.

  • Notice under section 139(9) of the Income Tax 1961

Section 139(9) of the Income Tax 1961, lays down the provision relating to the Defective Income Tax Return. In the case of the Defective Income Tax Return, the Assessing Officer sends a notice to an individual/taxpayer, if the Income-tax return filed by the taxpayer is defective. Instances of defect mentioned under Section 139(9) are incomplete return filed, wrong Income Tax Return filed, and information is missing in the Income Tax Return, etc. A period of 15 days is given to the assessee to reply to the notice. If no reply has been filed in the prescribed time, then the return will be rejected by the Assessing Officer.

  • Notice under section 142(1) of the Income Tax 1961

The Assessing Officer issues a notice under section 142(1) if there is any delay in filing Income Tax Return. If the return is not filed on time, then an individual will get a notice of preliminary enquiry under section 142(1) of the Income Tax Act 1961. The Assessing Officer can also ask an individual to furnish the documents for the assessment purpose. There is a time limit for serving a notice mentioned under section 142(1). The notice must be served before the end of the relevant assessment year. However, there is no timeline if an individual does not file the return. To avoid such notices, one must file Income Tax Return before the deadline.

  • Notice under section 143(1) of the Income Tax 1961

The Assessing Officer issues a notice under section 143(1) if the TDS claimed is not matching with Form 26AS(Accounting Standard). To avoid such type of notice, one must check the TDS reported under Form 26AS and then proceed to file Income Tax Return. Hence, the TDS claimed under Form 26AS should match with the Income Tax Return.

  • Notice under section 143(2) of the Income Tax 1961

If an individual fails to provide the documents that have been asked by the Assessing Officer under section 142(1) or if the Assessing Officer is not satisfied with the reply under section 142(1) then a notice can be issued under section 143(2) of the Income-tax Act 1961. Such a notice is issued for detailed scrutiny of the income generated through the investments made in the name of the spouse. Failure to declare the investments that are made in the name of the spouse would be considered as tax evasion. Sometimes, the Income Tax Department also issues such notices to scrutinize the Income Tax Returns to enforce tax compliance randomly. If the taxpayer has done high-value transactions, the department can send a notification to seek information relating to the source of funds. A satisfactory reply must be filed by stating the valid reasons and mentioning the source of income.

  • Notice under section 148 of the Income Tax Act 1961

Even after the assessment, if the Assessing Officer believes that some of the income of an individual/taxpayer has been escaped from assessment, then a notice can be issued under section 148 of the Income Tax Act 1961. The Income Tax Department has the power to reassess previously filed Income Tax Returns in case if the Assessing Officer has a reason to believe that there was a tax evasion in the earlier years.

  • Notice under section 156 of the Income Tax Act 1961

The Income Tax notice is served under section 156, if there is any penalty, fine, tax, or any other amount that is due from an individual/taxpayer to the Income Tax department. It is usually served after the assessment of the Income Tax Return. There is no time limit for serving such a notice. The taxpayer must deposit the amount payable within 30 days from the date of such notice. 

  • Notice under section 245of the Income Tax Act 1961

The notice under section 245 is issued by the Assessing Officer when the tax refund for the assessment year is adjusted against the tax demand due from an individual/taxpayer. The year of tax demand and the assessment year of refund can be different. Hence, the notice is issued for setting off tax refunds against tax payable. The refunds are adjusted within 30 days from the date of the notice.

  • Misreporting Long Term Capital Gains from Equity

The notice will be issued, if an individual/taxpayer has misreported the Long Term Capital Gains from Equity. To avoid such notices, one must ensure that he has mentioned correct information and has done the right computation of Long Term Capital Gains.

 

Conclusion

One should never ignore a notice from the Income Tax Department. The reply must be filed within a stipulated period. In the case of scrutiny, one must provide with all the relevant documents and information on time to the Income Tax Department to verify the same. The fines imposed on a person who does not reply to the Income Tax notices are very high. Hence, it is essential for a taxpayer to know the reasons behind getting an Income Tax Department notice and to file the reply of the same notice in a prescribed period. Furthermore, it is always advisable to consult a professional before framing a reply notice to reduce the chances of legal consequences in the future.

Eviction of a Tenant

The landlord takes a massive risk by lending his property to a tenant who is a complete stranger and therefore for securing the tenant as well as the owner a rent agreement is signed by the landlord and the tenant. The Rent Agreement consists of the details that are related to the rented property, monthly amount of the rent, parties that are involved and the rent period. The landlord enjoys the right of charging the rent at not only the market price, but the owner can also increase the rent after a certain period. The landlord enjoys the right to a temporary recovery of the rented property’s possession for repairs, alteration or addition to such property. The landlord should include the courses of action in the rent agreement in case if the tenant does not pay his monthly rent on time.

The landlord must conduct police verification of the tenant before renting the property. It is also advisable to the landlords that they must discuss the information that is related to the rented property with the tenant (Information such as Advance amount, the date on which rent becomes due, etc.). The Rent Agreement must consist of the rights and duties of both the landlord and the tenant. The Rent Agreements, which exceeds 11 months, should be registered compulsorily under section 17 of the Indian Registration Act. However, in certain states, all Rent Agreements are to be registered compulsorily with the State registry after paying proper registration fees and stamp duty.

Tenant Eviction Notice

It is tremendous stress for a landlord to evict his tenant, in case if he is not paying the rent on time or not vacating the property of the landlord. In India, tenancy laws are tougher for the landlords, and therefore in such circumstances, the first legal action an owner can take against the tenant is by sending him/her a legal tenant eviction notice. This legal notice will contain details like the reason for eviction, notice period given for the eviction and all the other relevant details. The reasons for eviction, they have to be valid in the eyes of the law.

Following are the valid grounds based on which a tenant can be evicted by the landlord:

  • If the tenant has used the rented property for an unlawful purpose.
  • If the tenant has not paid the rent amount within the prescribed period mentioned under the Rent Agreement and more than 15 days have been elapsed.
  • When tenant’s actions had resulted in loss/damage to the rented property or its utility.
  • If the tenant has sublet the rented property to any other person without taking the approval of the landlord.
  • In cases where the landlord has received a complaint against the tenant by the neighbourhood or the society.
  • If the landlord requires his property for his occupation or his relatives or any repairs and renovation.
  • When the tenant has used the rented property for any other purposes, which is not mentioned in the Rent Agreement.
  • In situations, where the lease period has been expired or the landlord had terminated the lease period with proper notice to the tenant.

Procedure for Tenant Eviction

Following is the procedure that is needed to be followed by the landlord to evict the tenant from his property:

  • The first step is to send a notice of tenant eviction. The landlord must send a legal eviction notice to the tenant. By sending this notice, the landlord ensures that the tenant is properly informed about the consequences of such notice. It is entirely depended upon the tenant that whether he wants to reply the notice or not. The eviction notice must include the information relating to the Rent Agreement, the reason behind sending such notice, the time which is provided to the tenant to evict the rented property and what will be the consequences if the tenant does not vacate the rented property within the prescribed time as specified in the notice, etc. In a case where his property was being used for an illegal or unlawful purpose, there is no need for an Eviction notice, and the landlord can directly file a criminal complaint.
  • After the notice, if the tenant does not vacate the landlord’s property, then the landlord must file a case against the tenant under the proper jurisdiction of the Small Causes Court. The Court shall conduct the proceedings as a Civil Suit. After hearing the landlord and the tenant, the Court may pass an order of eviction. It is mandatory for the tenant to vacate the landlord’s property, once the order of eviction is passed by the Court.

Conclusion

Eviction of a tenant is a legal process. It is a process through which a landlord can regain possession of his rented property. Many a time, it is observed that the landlord intimidates or coerce the tenant to force him to leave the rented property. It is considered as one of the illegal ways that have been adopted by the landlord for evicting his tenant. There is a requirement of giving proper notice to the tenant, before filing for an eviction. A landlord may face difficulty in evicting the tenant if he has not given the eviction notice to the tenant. Moreover, when a notice is filed, it is essential that it is formulated in such a way that it completes the legal requirement of the notices, as well as the work of eviction, is done. Therefore, it is advisable to hire a professional before drafting a legal notice.

Consumer Complaint Legal Notice

In order to promote consumer’s safety, the government of India had come up with a law known as the Consumer Protection Act 2019, which replaced the 1986 Act. The consumer is defined as any person who buys goods or hires/avails any services for some consideration. It includes any user of such goods or beneficiary of such services other than the owner of such goods or services but has taken the approval of the owner. However, it does not include the person who has obtained such goods for the purpose of resale/commercial purpose or has availed the services for any commercial purpose. The consumer has a right to file a complaint against the seller or service provider if there is any defect in goods or deficiency in services.  The consumer can serve a legal notice to the seller or service provider and ask him to rectify his mistakes within an appropriate period of time. Sending a legal notice is non-complicated and less time consuming, and hence, it is advisable to send a notice before filing a complaint in the Consumer Court.

 

Consumer Notice

A consumer notice is sent by the consumer to the seller or service provider of the goods or services in case if there is any defect in goods or deficiency in services that have been provided by them. The consumer must send this notice by registered post. The consumer notice must include the information relating to the name, description and address of the seller or service provider, detailed description of the defective goods, deficiency in service and non-providing of services. The notice must specify the date of the issue and the detailed facts and grievances. The notice must specify the legal course of action that the consumer might take in future if there is non-compliance of such notice. In case if there is any previous communication made relating to the same grievances, then that information should be mentioned in the notice. The consumer notice must give an appropriate time period to the seller or the service provider to settle the matter and remove the defects in goods. The notice must also specify the effects of seller’s irresponsibility in providing quality goods or services.

The consumer should also register the complaint if the service provider has any website for registering the complaint or a redressal portal. Non-compliance of consumer notice results into a legal proceeding against the unfair trade practices and deficiency in services of the seller or service provider. Hence, the consumer notice is considered as a last and final communication of the consumer complaint before initiating the legal proceedings in the Consumer Court. If the seller or the service provider does not comply with the notice, then the complaint must be filed by the consumer within two years from the cause of action, and if there is any delay in filing the complaint, then the reason of delay must be stated in the complaint.

 

Reasons for sending a Consumer Notice

The reasons for sending a consumer notice are as follows:

  • If the goods or services of the seller or service provider are unable to fulfil the responsibility of supplying or providing quality goods or services.
  • Non-satisfaction of the consumer is also an element. If the consumer is not satisfied with the goods or services that have been provided by the seller or service provider.
  • In the situation, where the consumer is deprived of the quality of goods or services provided by the seller or the service provider.
  • In case the consumer has not received the goods or services concerning his monetary value.

 

Conclusion

A consumer notice is considered as a piece of good evidence for showing that the consumer has taken a primary step before filing a consumer complaint. It also gives an opportunity to the seller or the service provider to rectify the mistakes or error made by them. It is not mandatory to issue consumer notice before filing a complaint in Consumer Court; however, it is always advisable to first issue a legal notice. Hence, in case if the company takes action on the consumer notice, then the issue is resolved without initiating legal proceedings. It saves time, money and energy for filing a complaint in Consumer Court.

Medical Adherence to Environmental Laws

Environmental law is the collection of regulations, ordinances, common law and agreements that govern how individuals interact with their environment. The main objective of environmental law is to protect the environment and generate rules for how an individual can use natural resources. The environmental law not only protects the environment but also determines who can use the natural resources.  Law also regulates forest protection, pollution, the use of natural resources, mineral harvesting and fish populations and animals.

 

Environmental issues in India

In India, there are many environmental issues such as Air pollution, water pollution, pollution of the natural environment and garbage are all challenges for India. The condition was worse between 1947 through 1995. India has a long way to go to arrive at an environmental standard same to those enjoyed in countries with evolved economics. The growing pollution remains a primary challenge for India. Several have cited economic development as the reason concerning the environment problems. The medical fraternity is one of the most significant contributors to this challenge.

Hospitals are responsible for the environmental issues arising due to the waste they generate and due to the number of resources they use. The healthcare sector has just begun to understand the impact that environmental problems such as climate change will have on the healthcare industry.

“A green and healthy hospital” is one that encourages public health by continuously minimizing its environmental impact and indirectly evicting its assistance to the burden of disease. A green and healthy hospital overseas the link between human health and the environment and determines the understanding through its strategies, operations and governance. It joins local needs with environmental action and practices primary prevention by engaging in efforts to foster health equity, community ecological health and a green economy.     

 

Environment Impact Assessment

Environment Impact Assessment (EIA)are procedures which make sure that all environmental issues are taken into account during the preparation process itself. In 1994, it was made obligatory under the Environmental Protection Act of 1986. The Ministry of Environment and Forests (MoEF) uses EIA as a leading tool for reducing the adverse impact of rapid industrialization on the environment and for reversing those trends which may lead to climate change in the long run. EIA is an essential tool in assuring that plans and projects will not provide an adverse impact on the environment. The EIA procedure thus could not merely prevent expenditures owing to environmental aspects but also prevent possible public views and protests against a plant.

When in hospitals, the wastes like used bottles or pieces of cotton is discharged, the EIA tool makes sure that the waste dumped is not harming the environment. The assessment is done in such a way that it checks all the ways through which a particular hospital is dumping or discharging its waste to regulate the environmental conditions near the hospital. Further EIA also helps when a hospital demands to construct a special place for dumping such material, as it overviews the impacts and all the pro’s and con’s related to it.

 

Sustainable Development

Sustainable development means an event that meets the needs of the present without compromising the ability of future generations to meet their own needs. The sustainable development includes Solar energy, Wind energy etc. Sustainable development has three pillars such as Economic growth, Environment protection and Social development. 

India is one of the extremely bio-diverse countries of the world. Its main aim is to bring together development and environment into a single set of targets. The concept of sustainable development can be interpreted in many different manners, but at its core is an approach to development that looks to balance dissimilar and often completing, requires against a consciousness of the social, economic and environmental limitations we face as a society.

Care systems and the hospitals slowly are looking for ways to reduce overall costs and improve efficiency while also improving the patient’s overall experience. Aggressively pursuing goals and making an active commitment to sustainability provides various strategic benefits that can help the hospitals and care systems thrive. They can accomplish sustainable initiatives reap benefits in multiple areas. Efforts of hospitals and care systems contribute to a healthier environment, can help the local communities, and improve the organization’s public perception. One of the ways through which sustainability can improve population health is by contributing to healthier communities, minimizing the use of community resources such as water and energy and also by reducing pollution.

 

Environmental Laws Regulations

The requirements for the protection and conservation of the environment and sustainable use of natural resources are reflected in the constitutional framework of India. Legislation has passed many acts for environmental protection.

Following are the laws passed by the legislation for environmental protection.

1. The Air (Prevention and Control of Pollution) Act, 1981

The Air (Prevention and Control of Pollution) Act, 1981 is an act to give for prevention, abatement and control of air pollution and the organization of Boards at the Central and state levels with a view performing the aforesaid reasons. To confer the boards, the authorities to execute the provision of the act and assign to the Boards functions connecting to pollution.

One of the major reasons through which air pollution is caused is by the emittance of smoke from the hospitals. This harmful smoke is a result of the pharma industries where the medicines are manufactured for the hospitals. Toxic smoke into the environment leads to air pollution.

2. The Water (Prevention and Control of Pollution) Act, 1974

The water act has been enacted to provide for Prevention and Control of Pollution and also to carry on or reinstate wholesomeness of water in the country. Further, it is provided for the organization of Boards for prevention and control of water pollution to perform the aforesaid purposes. This act forbids the discharge of pollutants into water bodies beyond the provided standard and lays down punishments for non-compliance.

Apart from the chemical industries, even the hospitals are responsible for water pollution. The waste which is generated by the hospitals is sometimes dumped inappropriately in nearby lakes and rivers, giving rise to water pollution, which is a major shortcoming for the environment. Water pollution further harms aquatic life. Hence, this vicious circle never ends, and therefore, hospitals must be responsible enough to dump the waste appropriately.

3. The Environment Protection Act, 1986

The Environment Act provides for the improvement and protection of the environment. This act establishes the framework for studying, planning, and implementing long-term needs of environment safety and laying down a system of speedy and sufficient reply to situations menacing the environment.

Talking about the health industry, it is essential that hospitals take care of the environment. There are duties and responsibilities of every citizen to take care of the environment. A hospital can ensure environment safety by providing a peaceful environment to its patients and as well as to the general public.

4. Hazardous Waste Management Regulations

Hazardous waste includes any waste which, by cause of any of its reactive, physical, explosive or corrosive, characteristics, chemical, toxic, flammable, cause hazard or is likely to cause a danger to health or environment, whether alone or when in contact with other wastes.

Mostly, the waste discharged by the healthcare sector is hazardous as it contains chemicals and toxic items. This substance, when released into the environment, causes adverse effects on the environment. Therefore, it is necessary and important for the healthcare sector to dump all its waste in adherence to the Hazardous Waste Management Regulations so that in future, no such cases arise.

5. The National Green Tribunal Act, 2010

The National Green Tribunal act has been enacted with the purposes to provide for the establishment of an NGT for the effective and expeditious disposal of matters relating to environment protection and other natural resources such as the enforcement of any legal right relating to environment and compensation for injures to persons and property and for cases connected therewith or incidental thereto.

The NGT comes into picture when any legal case arises. This type of situation may occur when a hospital fails to dispose of its waste or commits any activity which harms or hinders the environment. A case against the hospital may be brought by the NGT and not an individual. In such circumstances, the hospital is answerable to the National Green Tribunal, which might impose fines or penalties on the hospital.

 

Conclusion

Environmental pollution is the main problem in different parts of the world, which needs policymakers to employ several mitigation strategies. Many reasons affect the environment; increasing population, economic development, urbanization and industrialization etc. In India, economic development and population growth are contributing to too many grave environmental calamities.

Sustainable development is about finding better ways of doing things for the present and future. We might require changing the way we work and live now, but this doesn’t mean our standard of life will reduce. With all of these, India is witnessing a high amount of environmental pollution due to the healthcare sector.  As per reports, 5 per cent of the country’s GDP is spent on the Healthcare sector. It is the responsibility of the healthcare sector that this spending is used most appropriately. The hospitals can construct areas where the waste can be dumped off easily. A hospital can also utilize its resources and production in such a way that waste is minimized with effective and low-cost production.

Basic Elements of Transfer of Property Act, 1882

The term property is interpreted in numerous ways. Everything that revolves around an individual can be considered as property. However, in law, the definition of property broadly differs. According to law, the term Property includes the following:

  • Only an individual’s proprietary rights and not his personal rights.
  • All the legal rights in relation to his property i.e. complete ownership of material as well as incorporeal things.
  • According to the Apex Court of India, the term property includes both “corporal materials” such as land, machinery and also the “incorporeal things” such as the trademarks and patents.  This definition of property was given under the case of “RC Cooper vs. Union of India 1970.”

 

Types of Properties

The term “property” can be divided into two:

  1. Corporal Property
  • A corporal property is tangible in nature, which means such property is physical and can be seen and touched by an individual.
  • It involves the right of ownership in material things.
  • For example: Land, machinery, ornaments are considered to be corporal properties.

Further Corporal Properties are categorized into Movableproperty and Immovable property.

 

  1. Incorporeal Property
  • Incorporeal property is intangible in nature, which means there is no physical existence of such property.
  • The owner of an incorporeal property has the right of ownership in “rem”.
  • For example: Right of easement and Copyrights.

 

The transfer of Property Act, 1882, was enacted on 17th February 1882 and came into force on 1st July 1882. This act deals with the regulation of transfer of property in India. Basic Principles related to the transfer of Property Act are listed through this article.

 

Concept of Property

A proprietor who has the exclusive rights on the things that are owned by him when he is free to claim, dispose, and use them as he pleases. The proprietor also has the right to exchange the property or to gift it. The proprietor enjoys the advantage to rent, sell, mortgage, transfer, exchange, consume or even destroy them.

Following are the basic principles of Property Rights:

  • Right to exclude any other person from the property.
  • The right to sell or transfer the property to any other person.
  • Exclusive rights over the property enjoyed by the owner or the proprietor.
  • Free to derive any benefit from the property.

 

Conditions restricting Transfer

Section 10-18 of the Transfer Property Act, 1882, lays down the various kinds of restrictions that are imposed on the transfer of a property.  “Condition Restraining Alienation” is said to exist when the transferee’s (the person to whom the property is transferred) power to dispose or transfer the property is restricted.

Section 10 of the Transfer Property Act, 1882 states that when a transferee is restricted through limitation or “absolute” restriction from alienating the property, then such contracts are void and invalid in the eyes of the law.

Exceptions to the rule:

There are two exceptions to this law. They are:

  • When the property is transferred for the benefit to a woman who is (not a Hindu, Muslim, or Buddhist), put under a condition that she is not allowed to transfer or create any encumbrance in the sale of property transferred to her.
  • In the cases when the agreements are of a lease, as in such agreements, the restraint is for the benefit of the lesser or the estate leased out.

 

Absolute Restriction

Constraints are put on the alienation of the property. As per section 10 of the Transfer Property Act, 1882, “absolute restriction” is void and invalid in the eyes of the law.

Partial Restriction

As the name suggests, these restrictions are partial. They don’t put restrictions on the total alienation of the property and, thus, such restrictions are valid.

 

Case Law

  • Renand vs Tourangeaon

In this case, the property was transferred with the condition that the transferee further should not sell it for the next 20 years. However, the Court held that such conditions are not partial but absolute in nature, and therefore, this transfer is void. Section 10 of the Act declares any such agreements void and null.

For instance, if this period had not been of 20 years and was of 2 or 3 years, then such condition would have considered as partial restriction and then it would be not void.

 

  • Rosher vs Rosher

Mr J B Rosher made a will to gift his son a piece of his property. In the will, he also included that in future his son would be only allowed to sell this property to his mother Mrs. Rosher, at the one-fifth rate and no one else. The court, in this case, held that by putting up the condition of selling it only to a single person leads to absolute restriction, therefore making it null and void.

 

Definition of Transfer of Property

As per section 5 of the Transfer of Property Act, 1882, transfer of property means “an act through which a living person transfer his property, in present or future, to one or more other living persons or himself.” A living person can be an individual or an association or a company or body of individuals, importance of the fact, that it’s incorporated or not. The word “Transfer” has a wider scope, and it covers the transfer of a single property or more than one property.

Requirements of a Valid Transfer:

  • The property which is being transferred should be lawful.
  • Section 5 of the Act specifies that transfer should be done between two or more living persons.
  • As per section 6 of the Act, the property shall be transferable or non-transferable.
  • Section 7 of the Act deals with the individuals who are competent for the transfer.
  • Section 9 asks the individuals to do the transfer of property as mentioned under the Act.

 

Features of Transfer of Property, as mentioned under section 5 of the act are: 

  • The transfer of property can take place in future, but the transferor should be a living person.
  • The transfer of Property can be expressed or implied.
  • A transfer can happen only from living person to another living person.
  • Other laws that govern transfer are not affected by the Transfer of Property Act.
  • A living person also includes associations and companies.

Types of Transfer:

  • Sale: It is a type of transfer, which is done in exchange for money.
  • Exchange: It is under the influence of the Barter System. The property is transferred; however, the consideration is not money but something else.
  • Lease: The holders of immovable property are given rights for a limited period of time.
  • Mortgage: It is a limited transfer of an interest in the property.
  • Gift: As the name suggests, it is given for free, under the influence of love, affection, care. It does not involve any consideration.

Person Competent to Transfer:

  • The person should have attained the age of 18. In cases where there is a guardian, the age barrier becomes 21.
  • The person should be of sound mind.
  • A property can be disposed of under the power of attorney.

 

Case Law

 

Mallikarjuna vs Mareppa

In this case, the property was brought under the name of a minor child by their guardian. After a few years, the property was sold off, when the son was still a minor. The court declared the sale null and void as the guardian failed to take the permission under section 8 of the Hindu Minority and Guardianship Act, 1956, which is mandatory.

 

Transferrable and Non- Transferrable Property

Section 6 of the Transfer of Property Act, 1882, lays down the properties that may or may not be transferred. Property is generally transferable, however; the properties mentioned under this section are not applicable for transfer from one party to another.

Clause (a)

The term “Spessuccessionis” means when a piece of property has the chances that it may get transferred in the future through:

  • Chances when a property is transferred because of hierarchy/Legacy.
  • Chance of an heir-apparent succeeding an estate.

Clause (b)

This section is regarding the right of Re-entry. The general transferability states that a mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected. Such types of clauses are usually helpful in a lease agreement, where the lesser wants to protect or safeguard his property.

Clause (c)

It covers the topic of an easement. It is basically a right which is connected to the property and has no existence independently. Therefore, the transfer of such properties is not possible and is restricted under clause (c) of section 6.

Clause (d)

It says that an interest in property restricted in its enjoyment to the owner personally cannot be transferred. For example, if a person is staying on rent, he/she is not entitled to transfer that property. It is also known as the clause of restricted interest.

Clause (dd)

When a property is applicable for future maintenance, the right to future maintenance is solely for the personal benefit of the person to whom it has been granted and therefore, this very right cannot be transferred further.

Clause (e)

A mere right to sue cannot be transferred from one party to another. If the right to sue is for indefinite amount, it cannot be transferred, and if the amount is definite, it may get transferred.

Clause (f)

It covers the concept of Public office. The salary of a public officer is non-transferrable.

Clause (g)

The clause mentions that Pensions given to the politicians and government officials can not be transferred. It also involves the stipends provided to the naval, air-force, and the military officials. A will cannot be executed in this case, as it can be only made in respect of an estate.

Clause (h)

No transfer can be made insofar as it is opposed to the nature of the interest affected thereby. Thus, the things which are dedicated to public or religion uses or service cannot be transferred.

Clause (i)

This section makes it clear that a tenant having a un-transferable right of occupancy cannot in any way transfer his interest.

 

Transfer to an unborn child and Rule of Perpetuity

According to section 13 of the Transfer of Property Act, 1882, a property can be transferred from a living person to an unborn person. Section 13-16 is the general exception to the rule which states that a property can be transferred from one living person to another.

Certain provisions need to be followed when a person wants to transfer property to an unborn child. These particular sections of regulations have been adopted from England is also termed as “The rule of Double Possibilities”. The provisions required are as follows:

Existence Matters

The unborn should have come into existence before the death of the last property holder. Existence means, the unborn should have been present in the mother’s womb. If there is no pregnancy, then the property on the assumption that a future child will be born, a person cannot transfer the property.

No direct Transfers

Direct transfers cannot be made to an unborn person. As per section 13, when a transfer is to be made to an unborn person, the transfer first needs to transfer it to a living person. A living person can be trusted with the transfer unless the unborn is born or a trust can be created.

The basic principle laid down in Section 13 is that the person who is transferring the property shall not bind the free disposition of the said property for more than one generation. A person can enjoy the interest in the property, till the unborn comes into existence.

Instant Transfer of Rights

The transfer of rights should take place in a minimal amount of time. As soon as the child is born, all the transfer rights have to be vested in him/her. A transfer can be made to an unborn person, but not to the next generation of the unborn.

 

Rule against perpetuity

Section 14 of the Act, governs the rules against perpetuity.

The main objective of the rule against perpetuity is that there are people who have an interest in keeping the property in the family, from generation to generation. Such a situation leads to a significant loss for society. This activity deprives people of the benefits that arise through this property. The rule against perpetuity makes sure that there is free circulation of property, and not only do people enjoy the benefits, but also for the betterment of the property.

Under section 14, the following conditions need to be followed:

  • A transfer of property is a must.
  • The ultimate beneficiary should be in the benefit of the unborn child.
  • The unborn person must be in existence, at the expiration of the interest of the living person.
  • The vesting of an interest in favour of the unborn must be preceded by limited interest or the life of a living person.

There are certain exceptions, to the rule against Perpetuity. They are:

  • Rule against Perpetuity does not bound personal agreements
  • Pre-emption
  • When a property is transferred for public benefit.
  • Transfers which are covenants of redemption
  • Certain agreements which are for perpetual lease.

 

Vested and Contingent Interest

 

Vested Interest

 

Contingent Interest

As per section 19, if during the transfer of property, an interest is created without any terms and conditions, then it is said to be a vested interest.

 

According to section 21 of the Act, contingent interest is created when it is specified that certain event should take place for the interest to be created or when it is mentioned that an event should not take place.

There is an immediate or present right even though the enjoyment is postponed.

In this case, only a promise exists to give a right.

If the transferee dies, the interest is not influenced.

In the situation where a transferee dies, the contingent right is affected.

Vested interest is heritable as well as transferrable. Therefore, when a transferee dies without the possession, the right gets transferred to its heirs.

Contingent interest is transferrable. However, its heritability depends upon the nature of the condition. It does not automatically pass to the heir of the transferee.

 

 

Conclusion

The Transfer Property Act, 1882, one but many elements which need to be complied with appropriately to transfer a particular property from one person to another. Therefore, it becomes essential that a lawyer is hired when someone wants to transfer a property. It becomes an easy task for an experienced lawyer to engage in such contracts. Further, all the hidden expenses can be reduced.

Flat Rate Service

Tenant Eviction Notice

Starting from 5000

Leave and Licence Agreement

Starting from 4500

Drafting Memorandum Of Understanding

Starting from 15000

Preparing Affidavit

Starting from 300

Anticipatory Bail

Starting from 12000

Cheque Bounce Notice

Starting from 2500

Drafting & Filing Mutual Divorce

Starting from 15000

Marriage Registration

Starting from 5000

Trademark Registration

Starting from 6500

Happy Clients

Let us assist you in taking care of all your legal worries and immune you from legal risks.