Lawwatch : Legal Resources for Advocates

Lease and License: The Fundamental Difference

By K Rajasekharan 3 December 2021Property & Succession

There is marked distinctions between a lease and a licence though many would think both have no much differences. At one time it was thought that if a person was given exclusive possession of a premises, it would conclusively establish that he was a lessee. The exclusive possession considered to be an infallible test to decide whether it is a license or not, is no longer an infallible one. The key test now is the intention of the parties involved.

Substantial Question of Law & Second Appeal

By K Rajasekharan 3 December 2021Civil Cases & Proceedures, Constitutional law

A second appeal lies to the High Court (HC) from every decree passed in appeal by any subordinate court if the HC is satisfied that the case involves a substantial question of law. If satisfied the HC shall formulate that question. The Memorandum of Appeal shall state the substantial question of law proposed.

Legal Heirship Certificate not for Property Transfer

By K Rajasekharan 1 December 2021Property & Succession

An heirship certificate serves the purpose of identifying the relationship of the heirs to the deceased person. Legal Heirship Certificate is issued by the revenue officers of the executive government - in Kerala it is the Tahsildar - based on the enquiry made by his junior revenue official – the Village Officer. The certificate can be used for drawing an amount not exceeding Rs five lakh as of now. The Legal Heirship Certificate however has some sanctity in revealing the legal heirs of the deceased.

All about Succession Certificate

By K Rajasekharan 1 December 2021Property & Succession

The term succession refers to the process by which the legal heirs acquire the property of the deceased. A Succession Certificate (SC) however is the one that is granted exclusively in respect of “debts and securities” such as Provident Fund, Bank Deposit, Insurance, Shares etc to which the deceased was entitled to, as per Section 370 read with Section 214 of the Indian Succession Act. Therefore, one can apply for a SC only in respect of debts and securities.

Attestation Mandatorily Required Only in Three Legal Instruments

By K Rajasekharan 30 November 2021Civil Cases & Proceedures, Indian Evidence Act

Every instrument under the law in India does not require attestation. Even if it is attested the court may not be conducting the examination of them unless the document is required to be attested as per law. However, attestation of the instrument and consequent examination of the attesting witnesses as part of proving it are essential requirements in instrument such as a Will when law prescribes so.

Legal Validity of Plain Paper Agreements

By K Rajasekharan 26 November 2021Property & Succession

The essential conditions of a valid contract are informed consent, consideration and lawful object and such agreements are enforceable under the Indian Contract Act, 1872. Even oral agreements are valid in India, as per the act. The Contract Act does not make stamping of agreements compulsory. It does not make an unstamped agreement/contract thereby invalid or unenforceable. Therefore, an agreement does not require mandatory stamping to make it a legal and valid instrument.

Continuation of a Criminal Case when the Complainant dies

By K Rajasekharan 25 November 2021Criminal Laws & Procedures

When a complainant dies, the Magistrate cannot proceed with the case merely on the ground that the pleader, appointed by the deceased-complainant, is present in the court to continue the proceedings. In such a scenario, his pleader retains no authority and cannot, therefore, be allowed to continue to proceed with the complaint in the capacity of the pleader of the deceased-complainant. Therefore, he cannot be allowed to represent the complaint, under Section 256(2) of the Criminal Procedure Code (CrPC).

Recall of Witness u/s 311 CrPC & 165 IEA

By K Rajasekharan 24 November 2021Criminal Laws & Procedures, Indian Evidence Act

The Judge has unfettered authority to summon any material witness, or examine any person attending the court, though he is not summoned as a witness, or recall or re-examine any person already examined, if his evidence appears to be essential to the just decision of the case, under Section 311 of the Criminal Procedure Code (CrPC).

Phone Tapping in India: Its Legal Provisions

By K Rajasekharan 23 November 2021Criminal Laws & Procedures, Family, Marriage & Divorce

Telephone tapping or wiretapping is the monitoring of telephone and Internet-based conversations by a third party, often by covert or illegal means. Legal wiretapping by a government agency is called lawful interception. Lawful interception, which is being done by government agencies for security purposes, is strictly controlled to ensure privacy.

Law on Co-owner selling his Undivided Share

By K Rajasekharan 22 November 2021Civil Cases & Proceedures, Property & Succession

A co-owner in a joint property can sell his undivided share of property to anyone. But he cannot sell the specific piece of land with marked boundaries from the joint property. A selling of a share of property by co-owner in essence means the buyer steps into the shoes of his seller. The buyer is clothed with all the rights and liabilities of his transferor. So, the buyer becomes as much a co-owner as his transferor was before the property transfer.