Legal advice online in India
Whoever commits criminal breach of trust shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.
Whoever makes or mends, or performs any part of the process of making or mending, or buys, sells or disposes of, any die or instrument, for the purpose of being used, or knowing or having reason to believe that it is intended to be used, for the purpose of counterfeiting coin, shall be punished with imprisonment of either description for a term which may extended to three years, and shall also be liable to fine.
Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.
This Act may be called the Transfer of Property Act, 1882.
Commencement.—It shall come into force on the first day of July, 1882.
Extent.—1[It extends2 in the first instance to the whole of India except 3[the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of] Bombay, Punjab and Delhi.]
4[But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the 5[said territories] by the 6[State Government] concerned.]
7[And any 6[State Government] may 8[***] from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely:—
Section 54, paragraph 2 and sections 3, 59, 107 and 123.]
9[Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 10[1908], (16 of 1908), under the power conferred by the first section of that Act or otherwise.]
————————————-
1. Subs. by the A.O. 1950, for the original third paragraph.
2. The application of this Act was barred in the Naga Hills District, including the Mokokchang Sub-Division, the Dibrugarh Frontier Tract, the North Cachar Hills, the Garo Hills, the Khasea and Jaintia Hills and the Mikir Hills Tract, by notification under sec. 2 of the Assam Frontier Tracts Regulation, 1880 (2 of 1880).
The Act has been declared to be in force in Panth Piploda by the Panth Piploda Laws Regulation, 1929 (1 of 1929), sec. 2, and continued in force, with modifications, in the territory transferred to Delhi Province by the Delhi Laws Act, 1915 (7 of 1915), sec. 3 and Sch. III. It has also been partially extended to Berar by the Berar Laws Act, 1941 (4 of 1941).
The Act has been extended with effect from 1st January, 1893, to the whole of the territories, other than the Scheduled Districts, under the administration of the Govt. of Bombay. Sections 54, 107 and 123 have been extended from 6th May, 1925 to all Municipalities in the Punjab and to all notified areas declared and notified under sec. 241 of the Punjab Municipal Act, 1911 (Pun. Act 3 of 1911), see Punjab Gazette, Extra., 1925, p. 27.
These sections and section 129 have been extended to certain areas in Delhi Province, see Notifications No. 198/38-III, dated 30th May, 1939, Gazette of India, 1939, Pt. I, p. 918, and No. 61/40-Judl., dated 16th November, 1940, Gazette of India, 1940, Pt. I, p. 1639, respectively.
The Act has been extended to Manipur by the Union Territories (Laws) Amendment Act, 1956 (68 of 1956).
It has been rep. as to Government Grants by the Government Grants Act, 1895 (15 of 1895) and rep. or modified to the extent necessary to give effect to the provisions of the Madras City Tenants Protection Act, 1921 (Madras 3 of 1921) in the City of Madras; see sec. 13 of that Act.
It has been amended in Bombay by Bombay Act 14 of 1939, and in Uttar Pradesh by Uttar Pradesh Act 24 of 1954. It has been extended to Pondicherry by Act 26 of 1968, sec. 3, Sch., Part I.
3. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “Part B States”.
4. Subs. by the A.O. 1937, for the original paragraph.
5. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “said States”.
6. Subs. by A.O. 1950, for “Provincial Government”.
7. Subs. by Act 3 of 1885, sec. 1, for the original paragraph.
8. The words “with the previous sanction of the Governor General in Council” omitted by Act 38 of 1920, sec. 2 and Sch. I.
9. Added by Act 3 of 1885, sec. 2 (with retrospective effect). Section 54, paras 2 and 3 and sections 59, 107 and 123 extend to every cantonment—see section 287 of the Cantonment Act, 1924(2 of 1924).
10. Subs. by Act 20 of 1929, sec. 2, for “1877”.
Saving of certain enactments, incidents, rights, liabilities, etc.—In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect—
(a) the provisions of any enactment not hereby expressly repealed;
(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;
(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or
(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction,
and nothing in the second Chapter of this Act shall be deemed to affect any rule of 1[***] Muhammadan 2[***] law.
————–
1. Added by Act 3 of 1885, sec. 2 (with retrospective effect). Section 54, paras 2 and 3 and sections 59, 107 and 123 extend to every cantonment—see section 287 of the Cantonment Act, 1924(2 of 1924).
2. Subs. by Act 20 of 1929, sec. 2, for “1877”.
In this Act, unless there is something repugnant in the subject or context,—
“immoveable property” does not include standing timber, growing crops or grass;
‘‘instrument” means a non-testamentary instrument;
1[“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;]
“registered” means registered in 2[3[any part of the territories] to which this Act extends] under the law4 for the time being in force regulating the registration of documents;
“attached to the earth” means—
(a) rooted in the earth, as in the case of trees and shrubs;
(b) imbedded in the earth, as in the case of walls or buildings; or
(c) attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;
5[“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;]
6[“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.
Explanation I.—Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:]
Provided that—
(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,
(2) the instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and
(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.
Explanation II.—Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.
Explanation III.—A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:
Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.
————————-
1. Ins. by Act 27 of 1926, sec. 2 as amended by Act 10 of 1927, sec. 2 and Sch. I.
2. Subs. by Act 3 of 1951, sec. 3 and sch., for “a Part A State or a Part C State” (w.e.f. 1-4-1951).
3. Subs. by the Adaptation of Laws (No. 2) Order, 1956, for “any State”.
4. See the Indian Registration Act, 1908 (16 of 1908).
5. Ins. by Act 2 of 1900, sec. 2.
6. Subs. by Act 20 of 1929, sec. 4 as amended by Act 5 of 1930, sec. 2 for the original paragraph.
The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872
(9 of 1872).
1[And section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].]
————————-
1. Added by Act 3 of 1885, sec. 3.
2. Subs. by Act 20 of 1929, sec. 5, for “1877”.
In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, 1[or to himself] and one or more other living persons; and “to transfer property” is to perform such act.
1[In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.]
————————-
1. Ins. by Act 20 of 1929, sec. 6.
Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,—
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred;
(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby;
(c) An easement cannot be transferred apart from the dominant heritage;
(d) All interest in property restricted in its enjoyment to the owner personally cannot be transferred by him;
1[(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred;]
(e) A mere right to sue 2[***] cannot be transferred;
(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable;
(g) Stipends allowed to military 3[naval], 4[air-force] and civil pensioners of the 5[Government] and political pensions cannot be transferred;
(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) 6[for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee;
7[(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.]
————————-
1. Ins. by Act 20 of 1929, sec. 6.
2. The words “for compensation for a fraud or for harm illegally caused” omitted by Act 2 of 1900, sec. 3.
3. Ins. by Act 35 of 1934, sec. 2 and Sch.
4. Ins. by Act 10 of 1927, sec. 2 and Sch. I.
5. The word “Government” successively subs. by the A.O. 1937 and the A.O. 1950 to read as above.
6. Subs. by Act 2 of 1900, sec. 3, for “for an illegal purpose”.
7. Added by Act 3 of 1885, sec. 4.
Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.
A transfer of property may be made without writing in every case in which a writing is not expressly required by law.
Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.
Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
1[Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.]
———————
1. Subs. by Act 20 of 1929, sec. 8, for the original paragraph.
Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.
Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.
Illustration
A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.
No transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, 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 interest created is to belong.
If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails 1[in regard to those persons only and not in regard to the whole class].
————————-
1. Subs. by Act 20 of 1929, sec. 9, for “as regards the whole class”.
1[16. Transfer to take effect on failure of prior interest.—Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.
————————-
1. Subs. by Act 20 of 1929, sec. 10, for the original sections 16 to 18.
(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than—
(a) the life of the transferor, or
(b) a period of eighteen years from the date of transfer,
such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period 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.
(2) This section shall not affect any direction for accumulation for the purpose of—
(i) the payment of the debts of the transferor or any other person taking any interest under the transferor; or
(ii) the provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer; or
(iii) the preservation or maintenance of the property transferred,
and such direction may be made accordingly.
The restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind.]
Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.
Explanation.—An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.
Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.
Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.
Exception.—Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.
Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.
Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist.
Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.
Illustration
A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the life of B. D survives B. At B’s death the property passes to D.
An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.
Illustration
(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.
(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.
(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.
(d) A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer is void.
Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.
Illustration
(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.
(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.
Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.
Illustration
(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect.
(b) A transfers property to his wife; but, in case she should die in his life-time, transfer to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.
Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.
Illustration
(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect.
(b) A transfers property to his wife; but, in case she should die in his life-time, transfer to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.
An ulterior disposition of the kind contemplated by the last preceding section cannot, take effect unless the condition is strictly fulfilled.
Illustration
A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies as minor or marries without C’s consent, the Rs. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.
If the ulterior disposition is not valid, the prior disposition is not affected by it.
Illustration
A transfers a farm to B for her life, and, if she does not desert her husband to C. B is entitled to the farm during her life as if no condition had been inserted.
Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
Illustration
(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.
(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.
In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.
Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act.
Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the non-fulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.
Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of,
subject nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer,and in all cases where the transfer is for consideration,to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.
Illustrations
The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000.
In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.
The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own.
A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.
A person who in his one capacity takes a benefit under the transaction may in another dissent therefrom.
Exception to the last preceding four rules.—Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claims the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.
Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgment of a reasonable man in making an election, or if he waives enquiry into the circumstances.
Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.
Such knowledge or waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done.
Illustration
A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.
If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.
In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.
In the absence of a contract or local usage to the contrary, all rents annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.
When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract, to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose:
Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance.
Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.
Illustration
(a) A sells to B, C and D a house situated in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7.50 to C, and Rs. 7.50 to D and must deliver the sheep according to the joint direction of B, C and D.
(b) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A. B, C and D severally require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work in all, according to such directions as B, C and D may join in giving.
38. Transfer by person authorised only under certain circumstances to transfer.—
Where any person, authorised only under circumstances in their nature variable to dispose of immoveable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.
Illustration
A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.
Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, 1[***] the right may be enforced against the transferee, if he has notice 2[thereof] or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.
3[* * *]
———————–
1. The words “with the intention of defeating such right” omitted by Act 20 of 1929, sec. 11.
2. Subs. by Act 20 of 1929, sec. 11, for “of such intention”.
3. The illustration omitted by Act 20 of 1929, sec. 11.
0. Burden of obligation imposing restriction on use of land.—
Where, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment 1[in a particular manner of the latter property], or
Or of obligation annexed to ownership but not amounting to interest or easement.—Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon,
such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, not against such property in his hands.
Illustration
A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.
————————-
1. Subs. by Act 20 of 1929, sec. 12, for “of the latter property or to compel its enjoyment in a particular manner”.
Where, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.
Where a person transfers any immoveable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.
Illustration
A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.
Where a person 1[fraudulently or] erroneously represents that he is authorised to transfer certain immoveable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.
Illustration
A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.
————————-
1. Ins. by Act 20 of 1929, sec. 13.
Where one of two or more co-owners of immoveable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.
Where immoveable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.
Where immoveable property is transferred for consideration by persons having distinct interests therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.
Illustration
(a) A, owing a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza. There being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in the mauza.
(b) A, being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A’s life-interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money. B and C to receive Rs. 400.
Where several co-owners of immoveable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.
Illustration
A, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.
Where a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.
Where immoveable property is transferred for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require any money which the transferor actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.
No person shall be chargeable with any rents or profits of any immoveable property, which he has in good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits.
Illustration
A lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B is not chargeable with the rent so paid.
51. Improvements made by bona fide holders under defective titles.—
When the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.
When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.
During the 1[pendency] in any Court having authority 2[ 3[within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by 4[the Central Government] 5[* * *] of 6[any] suit or proceedings which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.
7[Explanation.—For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]
————————
1. Subs. by Act 20 of 1929, sec. 14, for “active prosecution”.
2. Subs. by the A.O. 1950, for “in the Provinces or established beyond the limits of the Provinces”.
3. Subs. by Act 3 of 1951, sec. 3 and Sch., for “within the limits of Part A States and Part C States” (w.e.f. 1-4-1951).
4. Subs. by the A.O.1937, for “the Governor General in Council”.
5. The words “or the Crown Representative” rep. by the A.O. 1948.
6. Subs. by Act 20 of 1929, sec. 14, for “a contentious”.
7. Ins. by Act 20 of 1929, sec. 14.
1[53. Fraudulent transfer.—(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.
Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.
A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.
(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.
For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.]
————————
1. Subs. by Act 20 of 1929, sec. 15, for the original section.
1[53A. Part performance.—Where any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract,
then, notwithstanding that 2[***] where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:
Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.]
1. Ins. by Act 20 of 1929, sec. 16.
2. The words “the contract, though required to be registered, has not been registered, or,” omitted by Act 48 of 2001, sec. 10 (w.e.f. 24-9-2001).
‘‘Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made.—3Such transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.
1In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.
Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.
Contract for sale.—A contract for the sale of immoveable property is a contract that a sale of such property shall take place on terms settled between the parties.
It does not, of itself, create any interest in or charge on such property.
————————
1. As to limitation to the territorial operation of paragraphs 2 and 3 of section 54, see section 1, supra. These paragraphs extend to every cantonment see section 287 of the CantonmentsAct, 1924 (2 of 1924).
In the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in ,the rules next following, or such of them as are applicable to the property sold:—
(1) The seller is bound—
(a) to disclose to the buyer any material defect in the property 1[or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;
(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;
(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;
(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;
(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;
(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;
(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.
(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:
Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.
The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power :
Provided that, (a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) where the whole of such property is sold to different buyers, the buye of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.
(4) The seller is entitled—
(a) to the rents and profits of the property till the ownership thereof passes to the buyer;
(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, 1[any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part 1[from the date on which possession has been delivered].
(5) The buyer is bound—
(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;
(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;
(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;
(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.
(6) The buyer is entitled—
(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;
(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, 2[* * *] to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.
An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.
————————
1. Ins. by Act 20 of 1929, sec. 17.
2. The words “with notice of the payment” omitted by Act 20 of 1929, sec. 17.
1[56. Marshalling by subsequent purchaser.—If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgaged-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.]
———————-
1. Subs. by Act 20 of 1929, sec. 18, for the original section.
(a) Where immoveable property subject to any encumbrances, whether immediately payable or not, is sold by the court or in execution of a decree, or out of court, the court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court,—
(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property—of such amount as, when invested in securities of the Central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and
(2) in any other case of a capital sum charged on the property—of the amount sufficient to meet the encumbrance and any interest due thereon.
But in either case there shall also be paid into court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investment, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a large additional amount.
(b) Thereupon the Court may, if it thinks fit, and after notice to the encumbrance, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the encumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.
(c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.
(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.
(e) In this section “Court” means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other Court which the State Government may, from time to time, by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.
(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.
(b) Simple mortgage.—Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.
(c) Mortgage by conditional sale.—Where, the mortgagor ostensibly sells the mortgaged property—
on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or
on condition that on such payment being made the sale shall become void, or
on condition that on such payment being made the buyer shall transfer the property to the seller,
the transaction is called mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:
1[Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.]
(d) Usufructuary mortgage.—Where the mortgagor delivers possession 1[or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property 2[or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest 3[or] partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.
(e) English mortgage.—Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.
4[(f) Mortgage by deposit of title-deeds.—Where a person in any of the following towns, namely, the towns of Calcutta, Madras, 5[and Bombay], 6[* * *] and in any other town7 which the 8[State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.
(g) Anomalous mortgage.—A mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.]
————————
1. Ins. by Act 20 of 1929, sec. 19.
2. Subs. by Act 20 of 1929, sec. 19, for “and to appropriate them”.
3. Subs. by Act 20 of 1929, sec. 19, for “and”.
4. Added by Act 20 of 1929, sec. 19.
5. Subs. by the A.O. 1948, for “Bombay and Karachi”. The word “and” had been ins. by the A.O. 1937.
6. The words “Rangoon, Moulmein, Bassein and Akyab” omitted by the A.O. 1937.
7. For notifications relating to the towns of—Ahmedabad, see Gazette of India, 1935, Pt. I, p. 936, Bandra, Kurla and Ghathkoper Kirol, see Gazette of India, 1924, Pt.I, p.1064, Cawnpore, Allahabad and Lucknow, see Gazette of India, 1938, Pt. I, p. 158. Coimbatore, Madura, Cocanada and Cochin, see Gazette of India, 1935, Pt. I, p. 526.
8. The words “Governor General in Council”, successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.
1[***]
———————-
1. The third paragraph was omitted by Act 20 of 1929, sec. 20.
1[59A. References to mortgagors and mortgagees to include persons deriving title from them.—Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.]
————————
1. Ins. by Act 20 of 1929, sec. 21.
————————
1. As to limitation to the territorial operation of section 59, see section 1, supra, section 59, extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).
2. Ins. by Act 20 of 1929, sec. 20.
3. Subs. by Act 6 of 1904, sec. 3, for “an instrument”.
4. The third paragraph omitted by Act 20 of 1929, sec. 20
At any time after the principal money has become 1[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver 2[to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
Provided that the right conferred by this section has not been extinguished by act of the parties or by 3[decree] of a Court.
The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.
Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.
———————-
1. Subs. by Act 20 of 1929, sec. 22, for “payable”.
2. Subs. by Act 20 of 1929, sec. 22, for “the mortgage-deed, if any to the mortgagor”.
3. Subs. by Act 20 of 1929, sec. 22, for “order”.
4. Ins. by Act 20 of 1929, sec. 22.
1[60A. Obligation to transfer to third party instead of re-transference to mortgagor.—(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly.
(2) The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrancers, the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer.
(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.
———————-
1. Sections 60A and 60B ins. by Act 20 of 1929, sec. 23.
A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.]
1[61. Right to redeem separately or simultaneously.—A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.]
———————-
1. Subs. by Act 20 of 1929, sec. 24, for the original section.
In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property 1[together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee],—
(a) where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property,—when such money is paid;
(b) where the mortgagee is authorised to pay himself from such rents and profits2[or any part thereof a part only of the mortgage-money],—when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee 3[the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided.
———————-
1. Ins. by Act 20 of 1929, sec. 25.
2. Subs. by Act 20 of 1929, sec. 25, for “the interest of the principal money”.
3. Subs. by Act 20 of 1929, sec. 25, for “the principal money”.
Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
Accession acquired in virtue of transferred ownership.—Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, 1[with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum].
In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.
Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.
———————-
1. Subs. by Act 20 of 1929, sec. 26, for “at the same rate of interest”.
1[63A. Improvements to mortgaged property.—(1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof.
(2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.]
———————-
1. Ins. by Act 20 of 1929, sec. 27.
Where the mortgaged property is a lease 1[***], and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.
———————-
1. The words “for a term of years” omitted by Act 20 of 1929, sec. 28.
In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee,—
(a) that the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same;
(b) that the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title thereto;
(c) that the mortgagor will, so long as the mortgagee is not in possession of the mortgaged property, pay all public charges accruing due in respect of the property;
(d) and, where the mortgaged property is a lease 1[***], that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against all the claims sustained by reason of the non-payment of the said rent or the non-performance or non-observance of the said conditions and contracts;
(e) and, where the mortgage is a second or subsequent encumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on each prior encumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior incumbrance.
2[***]
The benefit of the contracts mentioned in this section shall be annexed to and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
———————-
1. The words “for a term of years” omitted by Act 20 of 1929, sec. 29.
2. Certain words omitted by Act 20 of 1929, sec. 29.
1[65A. Mortgagor’s power to lease.—(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.
(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage,
(b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance,
(c) No such lease shall contain a covenant for renewal,
(d) Every such lease shall take effect from a date not later than six months from the date on which it is made,
(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid with a time therein specified.
(3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.]
———————-
1. Ins. by Act 20 of 1929, sec. 30.
A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.
Explanation.—A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.
In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become 1[due] to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court 2[a decree] that the mortgagor shall be absolutely debarred of his right to redeem the property, or 2[a decree] that the property be sold.
A suit to obtain 2[a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.
Nothing in this section shall be deemed—
3[(a) to authorise any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or]
(b) to authorise a mortgagor who holds the mortgagee’s rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or
(c) to authorise the mortgagee of a railway, canal, or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or
(d) to authorise a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.
———————-
1. Subs. by Act 20 of 1929, sec. 31, for “payable”.
2. Subs. by Act 20 of 1929, sec. 31, for “an order”.
3. Subs. by Act 20 of 1929, sec. 31, for the original clause.
1[67A. Mortgagee when bound to bring one suit on several mortgages.—A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.]
———————-
1. Ins. by Act 20 of 1929, sec. 32.
1[68. Right to sue for mortgage-money.—(1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely:—
(a) where the mortgagor binds himself to repay the same;
(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;
(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;
(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor :
Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.
(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.]
———————-
1. Subs. by Act 20 of 1929, sec. 33, for the original section.
69. Power of sale when valid.—1[(1)] 2[3[***] A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section have power to sell or concur in selling the mortgaged property or any part thereof, in default of payment of the mortgage-money, without the intervention of the court, in the following cases and in no others, namely:—]
(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist 4[or a member of any other race, sect, tribe or class from time to time specified in this behalf by 5[the State Government], in the Official Gazette];
(b) where 6[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgagee is 7[the Government];
(c) where 6[a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgaged property or any part thereof 8[was, on the date of the execution of the mortgage-deed], situate within the towns of Calcutta, Madras, Bombay, 9[***] 10[or in any other town11 or area which the State Government may, by notification in the Official Gazette, specify in this behalf.]
12[(2)] 13[***] No such power shall be exercised unless and until—
14[(a)] notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or
15[(b)] some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.
16[(3)] When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise or the power shall have his remedy in damages against the person exercising the power.
17[(4)] The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.
18[(5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.]
19[***]
———————-
1. Section 69 re-numbered as sub-section (1) of that section, by Act 20 of 1929, sec. 34.
2. Subs. by Act 20 of 1929, sec. 34, for certain words.
3. The words and figures “Notwithstanding anything contained in the Trustees’ and Mortgagees’ Powers Act, 1866″ omitted by Act 48 of 1952, sec. 3 and Sch. II.
4. Ins. by Act 3 of 1885, sec. 5.
5. The words “the L.G., with the previous sanction of the G.G. in C” successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
6. Ins. by Act 20 of 1929, sec. 34.
7. The words “the Secretary of State for India in Council” successively amended by the A.O. 1937 and the A.O. 1950 to read as above.
8. Subs. by Act 20 of 1929, sec. 34, for “is”.
9. The word “Karachi” omitted by the A.O. 1948.
10. The words “or Rangoon” have been successively amended by Acts 6 of 1904, 11 of 1915, 20 of 1929, the A.O. 1937 and the A.O. 1950 to read as above.
11. For notifications relating to the towns of— Ahmedabad, see Gazette of India 1935, Pt. I, p. 936. Bandra, Kurla and Ghatkoper-Kirol, see Gazette of India, 1924, Pt. I, p. 1964. Cawnpore, Allahabad and Lucknow, see Gazette of India, 1933, Pt. I, p. 158. Coimbatore, Mudura, Cocanada and Cochin, see Gazette of India, 1935, Pt. I, p. 526. Delhi (Contonment), see Gazette of India, 1963, Pt. II, Section 3, Sub-section (1), p. 1020.
12. Second paragraph re-numbered as sub-section (2) by Act 20 of 1929, sec. 34.
13. The word “But” omitted by Act 20 of 1929, sec. 34.
14. Clause (1) was lettered (a) by Act 20 of 1929, sec. 34.
15. Clause (2) was lettered (b) by Act 20 of 1929, sec. 34.
16. Third paragraph numbered as sub-section (3) by Act 20 of 1929, sec. 34.
17. Fourth paragraph numbered as sub-section (4) by Act 20 of 1929, sec. 34.
18. Subs. by Act 20 of 1929, sec. 34, for the original fifth paragraph.
19. Original last paragraph omitted by Act 20 of 1929, sec. 34.
1[69A. Appointment of receiver.—(1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof.
(2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee.
If no person has been so named, or if all persons named are unable or unwilling
to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the Court for the appointment of a receiver, and any person appointed by the Court shall be deemed to have been duly appointed by the mortgagee.
A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the court on application made by either party and on due cause shown.
A vacancy in the office of receiver may be filled in accordance with the provisions of this sub-section.
(3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s act or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee.
(4) The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose of, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee, in accordance with the provisions of this section.
(5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not.
(6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent, on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five per cent. on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose.
(7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature.
(8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely:—
(i) in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property;
(ii) in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver;
(iii) in payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee;
(iv) in payment of the interest falling due under the mortgage;
(v) in or towards discharge of the principal money, if so directed in writing by the mortgagee,
and shall pay the residue, of any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.
(9) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8) inclusive may be varied or extended by the mortgage-deed; and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said sub-sections.
(10) Application may be made, without the institution of a suit, to the court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court may think fit.
The costs of every application under this sub-section shall be in the discretion of the Court.
(11) In this section, “the Court” means the Court which would have jurisdiction in a suit to enforce the mortgage.]
———————-
1. Ins. by Act 20 of 1929, sec. 35.
If, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.
Illustrations
(a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase.
(b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security, B is entitled to the house as well as the plot.
When the mortgaged property is a lease 1[***] and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.
———————-
1. The words “for a term of years” omitted by Act 20 of 1929, sec. 36.
1[A mortgagee] may spend such money as is necessary—
2[***]
(b) for 3[the preservation of the mortgaged property] from destruction, forfeiture or sale;
(c) for supporting the mortgagor’s title to the property;
(d) for making his own title thereto good against the mortgagor; and
(e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease, and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and, where no such rate is fixed, at the rate of nine per cent. per annum:
4[Provided that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title.]
Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property, and the premiums paid for any such insurance shall be 5[added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent. per annum]. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured.
Nothing in this section shall be deemed to authorise the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorised to insure.
———————-
1. Subs. by Act 20 of 1929, sec. 37, for “When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, he”.
2. Clause (a) omitted by Act 20 of 1929, sec. 37.
3. Subs. by Act 20 of 1929, sec. 37, for “its preservation”.
4. Ins. by Act 20 of 1929, sec. 37.
5. Subs. by Act 20 of 1929, sec. 37, for certain original words.
1[73. Right to proceeds of revenue sale or compensation on acquisition.—(1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale-proceeds remaining after payment of the arrears and of all charges and deductions directed by law.
(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894); or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.
(3) Such claims shall prevail against all other claims except those of prior encumbrancers, and may be enforced notwithstanding that the principal money on the mortgage has not become due.]
———————-
1. Subs. by Act 20 of 1929, sec. 38, for the original section.
[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39.]
[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 39.]
When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property,—
(a) he must manage the property as a person of ordinary prudence would manage it if it were his own;
(b) he must use his best endeavours to collect the rents and profits thereof;
(c) he must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature 1[and all rent] accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold;
(d) he must in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money;
(e) he must not commit any act which is destructive or permanently injurious to the property;
(f) where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgage-money;
(g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported;
(h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses 1[properly incurred for the management of the property and the collection of rents and profits and the other expenses] mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest 2[***] and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor;
(i) when the mortgagor tenders, or deposits in the manner hereinafter provided, the amount for the time being due on the mortgage, the mortgagee must, notwithstanding the provisions in the other clauses of this section, account for his 3[***] receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of court, as the case may be 1[and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property].
Loss occasioned by his default.—If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure.
———————-
1. Ins. by Act 20 of 1929, sec. 40.
2. The words “on the mortgage-money” omitted by Act 20 of 1929, sec. 40.
3. The word “gross” omitted by Act 20 of 1929, sec. 40.
Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.
Where, through the fraud, misrepresentation or gross neglect of prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.
If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.
Illustration
A mortgages Sultanpur to his bankers, B & Co., to secure the balance of his account with them to the extent of Rs.10,000. A then mortgages Sultanpur to C, to secure Rs.10,000, C having notice of the mortgage to B & Co., and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs.10,000. B & Co. are entitled, to the extent of Rs.10,000, to priority over C.
[Rep. by the Transfer of Property (Amendment) Act, 1929 (20 of 1929), sec. 41.]
1[81. Marshalling, securities.—If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.]
———————-
1. Subs. by Act 20 of 1929, sec. 42, for the original section.
1[Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.]
Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid.
Nothing in this section applies to a property liable under section 81 to the claim of the 2[subsequent] mortgagee.
———————-
1. Subs. by Act 20 of 1929, sec. 43, for the original paragraph.
2. Subs. by Act 20 of 1929, sec. 43, for “second”.
83. Power to deposit in Court money due on mortgage.—
At any time after the principal money 1[payable in respect of any mortgage has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
Right to money deposited by mortgagor.—The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law2 for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed 3[and all documents in his possession or power relating to the mortgaged property], apply for and receive the money, and the mortgage-deed, 4[and all such other documents] so deposited shall be delivered to the mortgagor or such other person as aforesaid.
5[Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished.]
———————-
1. Subs. by Act 20 of 1929, sec. 44, for “has become payable”.
2. See the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order VI, rule 15.
3. Subs. by Act 20 of 1929, sec. 44, for “if then in his possession or power”.
4. Ins. by Act 20 of 1929, sec. 44. 5. Ins. by Act 20 of 1929, sec. 44.
When the mortgagor or such other person as aforesaid has tendered or deposited in Court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or 1[in the case of a deposit, where no previous tender of such amount has been made] as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court, 2[and the notice required by section 83 has been served on the mortgagee:
Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.]
Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to reasonable notice before payment or tender of the mortgage-money 3[and such notice has not been given before the making of the tender or deposit, as the case may be].
———————-
1. Ins. by Act 20 of 1929, sec. 45.
2. Subs. by Act 20 of 1929, sec. 45, for “as the case may be”.
3. Added by Act 20 of 1929, sec. 45.
[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]
1[91. Persons who may sue for redemption.—Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely:—
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;
(b) any surety for the payment of the mortgage-debt or any part thereof; or
(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.]
———————-
1. Subs. by Act 20 of 1929, sec. 46, for the original section.
1[92. Subrogation.—Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.
A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.
Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.]
———————-
1. Ins. by Act 20 of 1929, sec. 47. Original sections 92 were repealed by Act 5 of 1908, sec. 156 and Sch.V.
1[93. Prohibition of tacking.—No mortgagee paying off a prior mortgage,whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.]
———————-
1. Ins. by Act 20 of 1929, sec. 47. Original sections 93 were repealed by Act 5 of 1908, sec. 156 and Sch.V.
1[94. Rights of mesne mortgagee.—Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor.]
———————-
1. Ins. by Act 20 of 1929, sec. 47. Original sections 94 were repealed by Act 5 of 1908, sec. 156 and Sch.V.
1[95. Right of redeeming co-mortgagor to expenses.—Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.]
———————-
1. Subs. by Act 20 of 1929, sec. 48, for the original section 95. Original section 96 was repealed by Act 5 of 1908, sec. 156 and Sch.V.
1[96. Mortgage by deposit of title-deeds.—The provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.]
———————-
1. Subs. by Act 20 of 1929, sec. 48, for the original section 95. Original section 96 was repealed by Act 5 of 1908, sec. 156 and Sch.V.
1[97. Application of proceeds.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec. 156 and Sch. V.]
———————-
1. For the repealed provisions as re-enacted, see the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order XXXIV, rules 12 and 13.
98. Rights and liabilities of parties to anomalous mortgages.—In the case of 1[an anomalous mortgage] the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend, by local usage.
———————-
1. Subs. by Act 20 of 1929, sec. 49, for “a mortgage, not being a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage or an English mortgage or a combination of the first and third, or the second and third, of such forms”.
1[99. Attachment of mortgaged property.—[Rep. by the Code of Civil Procedure, 1908 (5 of 1908), sec.156 and Sch. V.]
———————-
1. For the repealed provisions as re-enacted, see the Code of Civil Procedure, 1908 (5 of 1908), Sch. I, Order XXXIV, rule 14.
Where immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore contained 1[which apply to a simple mortgage shall, so far as may be, apply to such charge].
Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, 2[and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge].
———————-
1. Subs. by Act 20 of 1929, sec. 50, for “as to a mortgagor shall, so far as may be, apply to the owner of such property, and the provisions of sections 81 and 82 shall, so far as may be, apply to the person having such charge”.
2. Added by Act 20 of 1929, sec. 50.
1[101. No merger in case of subsequent encumbrance.—Any mortgagee of, or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.]
———————-
1. Subs. by Act 20 of 1929, sec. 51, for the original section.
Where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from such person or otherwise duly authorised to accept such service or tender shall be deemed sufficient.
1[Where no person or agent on whom such notice should be served can be found or is known] to the person required to serve the notice, the latter person may apply to any court in which a suit might be brought for redemption of the mortgaged property, and such court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:
2[Provided that, in the case of a notice required by section 83, in the case of a deposit, the application shall be made to the court in which the deposit has been made.]
3[Where no person or agent to whom such tender should be made can be found or is known] to the person desiring to make the tender, the latter person may deposit 4[in any Court in which a suit might be brought for redemption of the mortgaged property] the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.
———————-
1. Subs. by Act 20 of 1929, sec. 52, for “Where the person or agent on whom such notice should be served cannot be found in the said district, or is unknown”.
2. Ins. by Act 20 of 1929, sec. 52.
3. Subs. by Act 20 of 1929, sec. 52, for “Where the person or agent to whom such tender should be made cannot be found within the said district or is unknown”.
4. Subs. by Act 20 of 1929, sec. 52, for “in such Court as last aforesaid”.
Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of court by, any person incompetent to contract, such notice may be served 1[on or by] or tender or deposit made, accepted or taken, by the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interest of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract2; and the provisions of 3[order XXXII in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)] shall, so far as may be, apply to such application and to parties thereto and to the guardian appointed thereunder.
———————-
1. Ins. by Act 20 of 1929, sec. 53.
2. As to persons competent to contract, see sections 11 and 12 of the Indian Contract Act, 1872 (9 of 1872).
3. Subs. by Act 20 of 1929, sec. 53, for “Chapter XXXI of the Code of Civil Procedure”.
The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.
A lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined.—The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.
1[106. Duration of certain leases in absence of written contract or local usage.—(1) In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice.
(2) Notwithstanding anything contained in any other law for the time being in force, the period mentioned in sub-section (1) shall commence from the date of receipt of notice.
(3) A notice under sub-section (1) shall not be deemed to be invalid merely because the period mentioned therein falls short of the period specified under that sub-section, where a suit or proceeding is filed after the expiry of the period mentioned in that sub-section.
(4) Every notice under sub-section (1) must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.]
———————-
1. Subs. by Act 3 of 2003, sec. 2, for section 106 (w.e.f. 31-12-2002).
Section 106, before substitution, stood as under: “106. Duration of certain leases in absence of written contract or local usage.—
In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property”.
1107. Leases how made.—A lease of immoveable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
2[All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.
3[Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:]
Provided that the State Government may4[***] from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.]
———————
1. As to limitation to the territorial operation of section 107, see section 1, supra, section 107 extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).
2. Subs. by Act 6 of 1904, sec. 5, for the original paragraph.
3. Ins. by Act 20 of 1929, sec. 55.
4. The words “with the previous sanction of the Governor General in Council” omitted by the A.O. 1937.
In the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:—
(A) Rights and Liabilities of the Lessor
(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;
(b) the lessor is bound on the lessee’s request to put him in possession of the property;
(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.
(B) Rights and Liabilities of the Lessee
(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;
(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:
Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision;
(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;
(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;
(h) the lessee may 1[even after the determination of the lease] remove, at any time 2[whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth; provided he leaves the property in the state in which he received it;
(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;
(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;
Nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;
(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest;
(l) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;
(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;
(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;
(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell 3[or sell] timber, pull down or damage buildings 3[belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;
(p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes;
(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.
———————-
1. Ins. by Act 20 of 1929, sec. 56.
2. Subs. by Act 20 of 1929, sec. 56, for “during the continuance of the lease”.
3. Ins. by Act 20 of 1929, sec. 56.
If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.
The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.
Where the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.
Duration of lease for a year.—Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.
Option to determine lease.—Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.
A lease of immoveable property determines—
(a) by efflux of the time limited thereby;
(b) where such time is limited conditionally on the happening of some
event—by the happening of such event;
(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event—by the happening of such event;
(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right;
(e) by express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them;
(f) by implied surrender;
(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter 1[* * *]; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; 2[or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in3[any of these cases] the lessor or his transferee4[gives notice in writing to the lessee of] his intention to determine the lease;
(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.
Illustration to clause (f)
A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.
———————-
1. The words “or the lease shall become void” omitted by Act 20 of 1929, sec. 57.
2. Ins. by Act 20 of 1929, sec. 57.
3. Subs. by Act 20 of 1929, sec. 57, for “either case”.
4. Subs. by Act 20 of 1929, sec. 57, for “does some act showing”.
A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:
Provided that the lessor is aware that the forfeiture has been incurred:
Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.
A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations
(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.
(b) A, the lessor, gives B, the lessee; notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.
Where a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
1[114A. Relief against forfeiture in certain other cases.—Where a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing—
(a) specifying the particular breach complained of; and
(b) if the breach is capable of remedy, requiring the lessee to remedy the breach, and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.
Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.]
———————-
1. Ins. by Act 20 of 1929, sec. 58.
The surrender, express or implied, of a lease of immoveable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under section 114.
If a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
Illustrations
(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C’s lease is renewed from month to month.
(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A’s assent. B’s lease is renewed from year to year
None of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government 1[***] may by notification published in the Official Gazette declare all or any of such provisions to be so applicable 2[in the case of all or any of such leases], together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.
———————-
1. The words “with the previous sanction of the Governor General in Council” omitted by Act 38 of 1920, sec. 2 and Sch. I. 2. Ins. by Act 6 of 1904, sec. 6.
When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.
1[119. Right of party deprived of thing received in exchange.—If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.]
———————-
1. Subs. by Act 20 of 1929, sec. 59, for the original section.
Save as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.
On an exchange of money, each party thereby warrants the genuineness of the money given by him.
“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the donee, and accepted by or on behalf of the donee.
Acceptance when to be made.—Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.
If the donee dies before acceptance, the gift is void.
1123. Transfer how effected.—For the purpose of making a gift of immoveable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of moveable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.
Such delivery may be made in the same way as goods sold may be delivered.
———————-
1. As to limitation to the territorial operation of section 123, see section 1, supra, section 123 extends to every cantonment—see section 287 of the Cantonments Act, 1924 (2 of 1924).
A gift comprising both existing and future property is void as to the latter.
A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.
Save as aforesaid, a gift cannot be revoked.
Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.
Illustrations
(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.
(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.
Where a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the doneee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.
Onerous gift to disqualified person.—A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.
Illustrations
(a) A shares in X, prosperous joint stock company, and also shares in Y, a joint stock company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.
(b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.
Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by 1[and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.
———————-
1. Ins. by Act 20 of 1929, sec. 60.
129. Saving of donations mortis causa and Muhammadan Law.—Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law 1[***].
———————-
1. The words and figures “or, save as provided by section 123, any rule of Hindu or Buddhist law” omitted by Act 20 of 1929, sec. 61.
(1) The transfer of an actionable claim 1[whether with or without consideration] shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, 2[***] shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:
Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.
(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceeding and without making him a party thereto.
Exception.—Nothing in this section applies to the transfer of a marine or fire policy of insurance 3[or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938)].
Illustrations
(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.
(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to provisions of section 132.
———————-
1. Ins. by Act 20 of 1929, sec. 62.
2. The words and figures “and notwithstanding anything contained in section 123” ins. by Act 38 of 1925, sec. 2 and omitted by Act 20 of 1929, sec. 62.
3. Added by Act 4 of 1938, sec. 121 (w.e.f. 1-7-1939).
1[130A. Transfer of policy of marine insurance.—[Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec. 92 (w.e.f. 1-8-1963)].]
———————-
1. Ins. by Act 6 of 1944, sec. 2.
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.
The transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer.
Illustrations
(i) A transfers to C a debt due to him by B, A being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.
(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.
Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.
Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer; and the residue, if any, belongs to the transferor or other person entitled to receive the same.
1[135. Assignment of rights under policy of insurance against fire.—Every assignee by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.]
———————-
1. Subs. by Act 6 of 1944, sec. 3, for the original section.
135A. Assignment of rights under policy of marine insurance.—
1[135A. Assignment of rights under policy of marine insurance.—[Rep. by the Marine Insurance Act, 1963 (11 of 1963), sec.92, (w.e.f. 1-8-1963)].]
———————-
1. Section 135A ins. by Act 6 of 1944, sec. 4.
No judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.
Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods.
Explanation.—The expression “mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.
(A) STATUTES
|
|
||
|
Year and Chapter |
Subject |
Extent of repeal |
|
|
||
|
27 Hen. VIII c. 10 |
Uses |
The Whole. |
|
13 Eliz., c. 5 |
Fraudulent conveyances |
The Whole. |
|
27 Eliz., c. 4 |
Fraudulent conveyances |
The Whole. |
|
4 Wm and marry, c. 16 |
Clandestine mortgages |
The Whole. |
|
|
||
(B) ACT OF THE GOVERNOR GENERAL IN COUNCIL
|
|
||
|
Number and Year |
Subject |
Extent of repeal |
|
|
||
|
X of 1842 |
Lease and re-lease |
The Whole |
|
XXXI of 1854 |
Modes of conveying land |
Section117 |
|
XI of 1855 |
Mesne profit and improvement |
Section 1; in the title, the word “to mesne profits and”, and in the preamble “to limit the liability for mesne profits and” |
|
XXVII of 1866 |
Indian Trustee Act |
Section 31. |
|
V of 1872 |
Punjab Laws Act |
So fas as it related to Bengal Regulations 1 of 1798 and XVII of 1806 |
|
XX of 1875 |
Central Provinvces Laws Act |
So fas as it related to Bengal Regulations 1 of 1798 and XVII of 1806 |
|
XVIII of 1876 |
Oudh Laws Act |
So fas as it related to Bengal Regulations XVII of 1806 |
|
1 of 1877 |
Specific Relief |
In section 35 and 36, the word “in writing”. |
|
|
||
(C) REGULATIONS
|
Number and years |
Subject |
Extent of repeal |
|
|
||
|
Bengal Regulation 1 of 1798 |
Conditional Sale |
The Whole Regulation |
|
|
||
|
Bengal Regulation XVII of 1806 |
Redemption |
The Whole Regulation |
|
Bombay Regulation V of 1827 |
Acknowledgement of debts; interest; |
|
|
Mortgagees in possession |
Section 15 |
|
ACT NO. 42 OF 1999
[29th December, 1999.]
An Act to consolidate and amend the law relating to foreign exchange with the objective of facilitating external trade and payments and for promoting the orderly development and maintenance of foreign exchange market in India. BE it enacted by Parliament in the Fiftieth Year of the Republic of India as follows:-
1. This Act may be called the Foreign Exchange Management Act, 1999.
2. It extends to the whole of India.
3. It shall also apply to all branches, offices and agencies outside India owned or controlled by a person resident in India and also to any contravention there under committed outside India by any person to whom this Act applies.
4. It shall come into force on such date1as the Central Government may, by notification in the Official Gazette, appoint:
Provided that different dates may be appointed for different provisions of this Act and any reference in any such provision to the commencement of this Act shall be construed as a reference to the coming into force of that provision.
————————–
1. Came into force on 1-6-2000, vide G.S.R. 371(E), dated 1st May, 2000.
In this Act, unless the context otherwise requires,-
(a) “Adjudicating Authority” means an officer authorised under subsection
(1) of section 16;
(b) “Appellate Tribunal” means the Appellate Tribunal for Foreign
Exchange established under section 18;
(c) “Authorised person” means an authorised dealer, money changer, off-shore banking unit or any other person for the time being authorised under sub-section (1) of section 10 to deal in foreign exchange or foreign securities;
(d) “Bench” means a Bench of the Appellate Tribunal;
(e) “Capital account transaction” means a transaction which alters the assets or liabilities, including contingent liabilities, outside India of persons resident in India or assets or liabilities in India of persons resident outside India, and includes transactions referred to in subsection (3) of section 6;
(f) “Chairperson” means the Chairperson of the Appellate Tribunal;
(g) “Chartered accountant” shall have the meaning assigned to it in clause
(b) of sub-section (1) of section 2 of the Chartered Accountants Act, 1949 (38 of 1949);
(h) “Currency” includes all currency notes, postal notes, postal orders, money orders, cheques, drafts, travelers cheques, letters of credit, bills of exchange and promissory notes, credit cards or such other similar instruments, as may be notified by the Reserve Bank;
(i) “Currency notes” means and includes cash in the form of coins and bank notes;
(j) “Current account transaction” means a transaction other than a capital account transaction and without prejudice to the generality of the foregoing such transaction includes,-
(i) Payments due in connection with foreign trade, other current business, services, and short-term banking and credit facilities in the ordinary course of business,
(ii) Payments due as interest on loans and as net income from investments,
(iii) Remittances for living expenses of parents, spouse and children residing abroad, and
(iv) Expenses in connection with foreign travel, education and medical care of parents, spouse and children;
(k) “Director of Enforcement” means the Director of Enforcement appointed under sub-section (1) of section 36;
(l) “Export”, with its grammatical variations and cognate expressions, means,-
(i) The taking out of India to a place outside India any goods, (ii) Provision of services from India to any person outside India;
(m) “Foreign currency” means any currency other than Indian currency;
(n) “Foreign exchange” means foreign currency and includes,-
(i) Deposits, credits and balances payable in any foreign currency,
(ii) Drafts, travelers cheques, letters of credit or bills of exchange, expressed or drawn in Indian currency but payable in any foreign currency,
(iii) Drafts, travelers cheques, letters of credit or bills of exchange drawn by banks, institutions or persons outside India, but payable in Indian currency;
(o) “Foreign security” means any security, in the form of shares, stocks, bonds, debentures or any other instrument denominated or expressed in foreign currency and includes securities expressed in foreign currency, but where redemption or any form of return such as interest or dividends is payable in Indian currency;
(p) “Import”, with its grammatical variations and cognate expressions, means bringing into India any goods or services;
(q) “Indian currency” means currency which is expressed or drawn in Indian rupees but does not include special bank notes and special one rupee notes issued under section 28A of the Reserve Bank of India Act, 1934 (2 of 1934);
(r) “Legal practitioner” shall have the meaning assigned to it in clause (i) of sub-section (1) of section 2 of the Advocates Act, 1961 (25 of 1961);
(s) “Member” means a Member of the Appellate Tribunal and includes the Chairperson thereof;
(t) “Notify” means to notify in the Official Gazette and the expression notification” shall be construed accordingly;
(u) “Person” includes-
An individual, A Hindu undivided family,
(i) A company,
(ii) A firm,
(iii) An association of persons or a body of individuals, whether incorporated or not,
(iv) Every artificial juridical person, not falling within any of the preceding sub-clauses, and
(v) Any agency, office or branch owned or controlled by such person;
(v) “Person resident in India” means-
(v) A person residing in India for more than one hundred and eighty-two days during the course of the preceding financial year but does not include;-
(A) A person who has gone out of India or who stays outside India, in either case-
(a) For or on taking up employment outside India, or
(b) For carrying on outside India a business or vocation outside India, or
(c) For any other purpose, in such circumstances as would indicate his intention to stay outside India for an uncertain period;
(B) A person who has come to or stays in India, in either case, otherwise than-
(a) For or on taking up employment in India, or
(b) For carrying on in India a business or vocation India, or
(c) For any other purpose, in such circumstances as would indicate his intention to stay in India for an uncertain period;
(i) Any person or body corporate registered or incorporated in India,
(ii) An office, branch or agency in India owned or controlled by a person resident outside India,
(iii) An office, branch or agency outside India owned or controlled by a person resident in India;
(w) “Person resident outside India” means a person who is not resident in India;
(x) “Prescribed” means prescribed by rules made under this Act;
(y) “Repatriate to India” means bringing into India the realised foreign exchange and-
(i) The selling of such foreign exchange to an authorised person in India in exchange for rupees; or (ii) The holding of realised amount in an account with anauthorised person in India to the extent notified by the Reserve Bank, and includes use of the realised amount for discharge of a debt or liability denominated in foreign exchange and the expression “repatriation” shall be construed accordingly;
(z) “Reserve Bank” means the Reserve Bank of India constituted under sub-section (1) of section 3 of the Reserve Bank of India Act, 1934 (2 of 1934);
(za) “Security” means shares, stocks, bonds and debentures, Government securities as defined in the Public Debt Act, 1944 (18 of 1944), savings certificates to which the Government Savings Certificates Act, 1959 (46 of 1959) applies, deposit receipts in respect of deposits of securities and units of the Unit Trust of India established under sub-section (1) of section 3 of the Unit Trust of India Act, 1963 (52 of 1963) or of any mutual fund and includes certificates of title to securities, but does not include bills of exchange or promissory notes other than Government promissory notes or any other instruments which may be notified by the Reserve Bank as security for the purposes of this Act;
(zb) “Service” means service of any description which is made available to potential users and includes the provision of facilities in connection with banking, financing, insurance, medical assistance, legal assistance, chit fund, real estate, transport, processing, supply of electrical or other energy, boarding or lodging or both, entertainment, amusement or the purveying of news or other information, but does not include the rendering of any service free of charge or under a contract of personal service;
(zc) “Special Director (Appeals)” means an officer appointed under section 1 8;
(zd) “Specify” means to specify by regulations made under this Act and the expression “specified” shall be construed accordingly;
(ze) “Transfer” includes sale, purchase, exchange, mortgage, pledge, gift, loan or any other form of transfer of right, title, possession or lien.
Save as otherwise provided in this Act, rules or regulations made thereunder, or with the general or special permission of the Reserve Bank, no person shall-
(a) Deal in or transfer any foreign exchange or foreign security to any person not being an authorised person; (b) Make any payment to or for the credit of any person resident outside India in any manner;
(c) Receive otherwise through an authorised person, any payment by order or on behalf of any person resident outside India in any manner;
Explanation.- For the purpose of this clause, where any person in, or resident in, India receives any payment by order or on behalf of any person resident outside India through any other person (including an authorised person) without a corresponding inward remittance from any place outside India, then, such person shall be deemed to have received such payment otherwise than through an authorised person;
(d) Enter into any financial transaction in India as consideration for. or in association with acquisition or creation or transfer of a right to acquire, any asset outside India by any person.
Explanation. – For the purpose of this clause, “financial transaction” means making any payment to, or for the credit of any person, or receiving any payment for, by order or on behalf of any person, or drawing, issuing or negotiating any bill of exchange or promissory note, or transferring any security or acknowledging any debt.
Save as otherwise provided in this Act, no person resident in India shall acquire, hold, own, possess or transfer any foreign exchange, foreign security or any immovable property situated outside India
Any person may sell or draw foreign exchange to or from an authorised person if such sale or drawal is a current account transaction:
Provided that the Central Government may, in public interest and in consultation with the Reserve Bank, impose such reasonable restrictions for current account transactions as may be prescribed
(1) Subject to the provisions of sub-section (2), any person may sell or draw foreign exchange to or from an authorised person for a capital account transaction.
(2) The Reserve Bank may, in consultation with the Central Government, specify-
(a) Any class or classes of capital account transactions which are permissible;
(b) The limit up to which foreign exchange shall be admissible for such transactions:
Provided that the Reserve Bank shall not impose any restriction on the drawal of foreign exchange for payments due on account of amortization of loans or for depreciation of direct investments in the ordinary course of business.
(3) Without prejudice to the generality of the provisions of sub-section (2), the Reserve Bank may, by regulations prohibit, restrict or regulate the following,-
(a) Transfer or issue of any foreign security by a person resident in India;
(b) Transfer or issue of any security by a person resident outside India;
(c) Transfer or issue of any security or foreign security by any branch, office or agency in India of a person resident outside India;
(d) Any borrowing or lending in foreign exchange in whatever form or by whatever name called;
(e) Any borrowing or lending in rupees in whatever form or by whatever name called between a person resident in India and a person resident outside India;
(f) Deposits between persons resident in India and persons resident outside India;
(g) Export, import or holding of currency or currency notes;
(h) Transfer of immovable property outside India, other than a lease not exceeding five years, by a person resident in India;
(i) Acquisition or transfer of immovable property in India, other than a lease not exceeding five years, by a person resident outside India;
(j) Giving of a guarantee or surety in respect of any debt, obligation or other liability incurred,-
(i) By a person resident in India and owed to a person resident outside India; or
(ii) By a person resident outside India.
(4) A person resident in India may hold, own, transfer or invest in foreign currency, foreign security or any immovable property situated outside India if such currency, security or property was acquired, held or owned by such person when he was resident outside India or inherited from a person who was resident outside India.
(5) A person resident outside India may hold, own, transfer or invest in Indian currency, security or any immovable property situated in India if such currency, security or property was acquired, held or owned by such person when he was resident in India or inherited from a person who was resident in India.
(6) Without prejudice to the provisions of this section, the Reserve Bank may by regulation prohibit, restrict, or regulate establishment in India of a branch, office or other place of business by a person resident outside India, for carrying on any activity relating to such branch, office or other place of business.
(1) Every exporter of goods shall; -
(a) Furnish to the Reserve Bank or to such other authority a declaration in such form and in such manner as may be specified, containing true and correct material particulars, including the amount representing the full export value or, if the full export value of the goods is not ascertainable at the time of export, the value which the exporter, having regard to the prevailing market conditions, expects to receive on the sale of the goods in a market outside India;
(b) Furnish to the Reserve Bank such other information as may be required by the Reserve Bank for the purpose of ensuring the realisation of the export proceeds by such exporter.
(2) The Reserve Bank may, for the purpose of ensuring that the full export value of the goods or such reduced value of the goods as the Reserve Bank determines, having regard to the prevailing market conditions, is received without any delay, direct any exporter to comply with such requirements as it deems fit.
(3) Every exporter of services shall furnish to the Reserve Bank or to such other authorities a declaration in such form and in such manner as may be specified, containing the true and correct material particulars in relation to payment for such services.
Save as otherwise provided in this Act, where any amount of foreign exchange is due or has accrued to any person resident in India such person shall take all reasonable steps to realise and repatriate to India such foreign exchange within such period and in such manner as may be specified by the Reserve Bank.
The provisions of sections 4 and 8 shall not apply to the following, namely:-
(a) Possession of foreign currency or foreign coins by any person up to such limit as the Reserve Bank may specify;
(b) Foreign currency account held or operated by such person or class of persons and the limit up to which the Reserve Bank may specify;
(c) Foreign exchange acquired or received before the 8th day of July, 1947 or any income arising or accruing thereon which is held outside India by any person in pursuance of a general or special permission granted by the Reserve Bank;
(d) Foreign exchange held by a person resident in India up to such limit as the Reserve Bank may specify, if such foreign exchange was acquired by way of gift or inheritance from a person referred to in clause (c), including any income arising there from;
(e) Foreign exchange acquired from employment, business, trade, vocation, services, honorarium, gifts, inheritance or any other legitimate means up to such limit as the Reserve Bank may specify; and
(f) Such other receipts in foreign exchange as the Reserve Bank may specify.
(1) The Reserve Bank may, on an application made to it in this behalf, authorise any person to be known as authorised person to deal in foreign exchange or in foreign securities, as an authorised dealer, money changer or off-shore banking unit or in any other manner as it deems fit.
(2) An authorisation under this section shall be in writing and shall be subject to the conditions laid down therein.
(3) An authorisation granted under sub-section (1) may be revoked by the Reserve Bank at any time if the Reserve Bank is satisfied that-
(a) It is in public interest so to do; or (b) The authorised person has failed to comply with the condition subject to which the authorisation was granted or has contravened any of the provisions of the Act or any rule, regulation, notification, direction or order made there under:
Provided that no such authorisation shall be revoked on any ground referred to in clause (b) unless the authorised person has been given a reasonable opportunity of making a representation in the matter.
(4) An authorised person shall, in all his dealings in foreign exchange or foreign security comply with such general or special directions or orders as the Reserve Bank may, from time to time, think fit to give, and, except with the previous permission of the Reserve Bank, an authorised person shall not engage in any transaction involving any foreign exchange or foreign security which is not in conformity with the terms of his authorisation under this section.
(5) An authorised person shall, before under-taking any transaction in foreign exchange on behalf of any person, require that person to make such declaration and to give such information as will reasonably satisfy him that the transaction will not involve, and is not designed for the purpose of any contravention or evasion of the provisions of this Act or of any rule, regulation, notification, direction or order made thereunder, and where the said person refuses to comply with any such requirement or makes only unsatisfactory compliance therewith, the authorised person shall refuse in writing to undertake the transaction and shall, if he has reason to believe that any such contravention or evasion as aforesaid is contemplated by the person, report the matter to the Reserve Bank.
(6) Any person, other than an authorised person, who has acquired or purchased foreign exchange for any purpose mentioned in the declaration made by him to authorised person under sub-section (5) does not use it for such purpose or does not surrender it to authorised person within the specified period or uses the foreign exchange so acquired or purchased for any other purpose for which purchase or acquisition of foreign exchange is not permissible under the provisions of the Act or the rules or regulations or direction or order made there under shall be deemed to have committed contravention of the provisions of the Act for the purpose of this section.
(1) The Reserve Bank may, for the purpose of securing compliance with the provisions of this Act and of any rules, regulations, notifications or directions made there under, give to the authorised persons any direction in regard to making of payment or the doing or desist from doing any act relating to foreign exchange or foreign security.
(2) The Reserve Bank may, for the purpose of ensuring the compliance with the provisions of this Act or of any rule, regulation, notification, direction, or order made there under, direct any authorised person to furnish such information, in such manner, as it deems fit.
(3) Where any authorised person contravenes any direction given by the Reserve Bank under this Act or fails to file any return as directed by the Reserve Bank, the Reserve Bank may, after giving reasonable opportunity of being heard, impose on the authorised person a penalty which may extend to ten thousand rupees and in the case of continuing contravention with an additional penalty which may extend to two thousand rupees for every day during which such contravention continues.
(1) The Reserve Bank may, at any time, cause an inspection to be made, by any officer of the Reserve Bank specially authorised in writing by the Reserve Bank in this behalf, of the business of any authorised person as may appear to it to be necessary or expedient for the purpose of-
(a) Verifying the correctness of any statement, information or particulars furnished to the Reserve Bank;
(b) Obtaining any information or particulars which such authorised person has failed to furnish on being called upon to do so;
(c) Securing compliance with the provisions of this Act or of any rules, regulations, directions or orders made thereunder.
(2) It shall be the duty of every authorised person, and where such person is a company or a firm, every director, partner or other officer of such company or firm, as the case may be, to produce to any officer making an inspection under sub-section (1), such books, accounts and other documents in his custody or power and to furnish any statement or information relating to the affairs of such person, company or firm as the said officer may require within such time and in such manner as the said officer may direct.
(1) If any person contravenes any provision of this Act, or contravenes any rule, regulation, notification, direction or order issued in exercise of the powers under this Act, or contravenes any condition subject to which an authorisation is issued by the Reserve Bank, he shall, upon adjudication, be liable to a penalty up to thrice the sum involved in such contravention where such amount is quantifiable, or up to two lakh rupees where the amount is not quantifiable, and where such contravention is a continuing one, further penalty which may extend to five thousand rupees for every day after the first day during which the contravention continues.
(2) Any Adjudicating Authority adjudging any contravention under sub-section (1), may, if he thinks fit in addition to any penalty which he may impose for such contravention direct that any currency, security or any other money or property in respect of which the contravention has taken place shall be confiscated to the Central Government and further direct that the foreign exchange holdings, if any of the persons committing the contraventions or any part thereof, shall be brought back into India or shall be retained outside India in accordance with the directions made in this behalf.
Explanation.- For the purposes of this sub-section, “property” in respect of which contravention has taken place, shall include ;-
(a) Deposits in a bank, where the said property is converted into such deposits;
(b) Indian currency, where the said property is converted into that currency; and (c) Any other property which has resulted out of the conversion of that property
(1) Subject to the provisions of sub-section (2) of section 19, if any person fails to make full payment of the penalty imposed on him under section 13 within a period of ninety days from the date on which the notice for payment of such penalty is served on him, he shall be liable to civil imprisonment under this section.
(2) No order for the arrest and detention in civil prison of a defaulter shall be made unless the Adjudicating Authority has issued and served a notice upon the defaulter calling upon him to appear before him on the date specified in the notice and to show cause why he should not be committed to the civil prison, and unless the Adjudicating Authority, for reasons in writing, is satisfied
(a) That the defaulter, with the object or effect of obstructing the recovery of penalty, has after the issue of notice by the Adjudicating Authority, dishonestly transferred, concealed, or removed any part of his property, or
(b) That the defaulter has, or has had since the issuing of notice by the Adjudicating Authority, the means to pay the arrears or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same.
(3) Notwithstanding anything contained in sub-section (1), a warrant for the arrest of the defaulter may be issued by the Adjudicating Authority if the Adjudicating Authority is satisfied, by affidavit or otherwise, that with the object or effect of delaying the execution of the certificate the defaulter is likely to abscond or leave the local limits of the jurisdiction of the Adjudicating Authority.
(4) Where appearance is not made pursuant to a notice issued and served under sub-section (1), the Adjudicating Authority may issue a warrant for the arrest of the defaulter.
(5) A warrant of arrest issued by the Adjudicating Authority under sub-section (3) or sub-section (4) may also be executed by any other Adjudicating Authority within whose jurisdiction the defaulter may for the time being be found.
(6) Every person arrested in pursuance of a warrant of arrest under this section shall be brought before the Adjudicating Authority issuing the warrant as soon as practicable and in any event within twenty-four hours of his arrest (exclusive of the time required for the journey):
Provided that, if the defaulter pays the amount entered in the warrant of arrest as due and the costs of the arrest to the officer arresting him such officer shall at once release him.
Explanation. – For the purpose of this sub-section, where the defaulter is a Hindu undivided family, the karta thereof shall be deemed to be the defaulter.
(7) When a defaulter appears before the Adjudicating Authority pursuant to a notice to show cause or is brought before the Adjudicating Authority under this section, the Adjudicating Authority shall give the defaulter an opportunity showing cause why he should not be committed to the civil prison.
(8) Pending the conclusion of the inquiry, the Adjudicating Authority may, in his discretion, order the defaulter to be detained in the custody of such officer as the Adjudicating Authority may think fit or release him on his furnishing the security to the satisfaction of the Adjudicating Authority for his appearance as and when required.
(9) Upon the conclusion of the inquiry, the Adjudicating Authority may make an order for the detention of the defaulter in the civil prison band shall in that event cause him to be arrested if he is not already under arrest:
Provided that in order to give a defaulter an opportunity of satisfying the arrears, the Adjudicating Authority may, before making the order of detention, leave the defaulter in the custody of the officer arresting him or of any other officer for a specified period not exceeding fifteen days, or release him on his furnishing security to the satisfaction of the Adjudicating Authority for his appearance at the expiration of the specified period if the arrears are not satisfied.
(10) When the Adjudicating Authority does not make an order of detention under sub-section (9), he shall, if the defaulter is under arrest, direct his release.
(11) Every person detained in the civil prison in execution of the certificate may be so detained ;-
(a) Where the certificate is for a demand of an amount exceeding rupees one crore – up to three years, and
(b) In any other case – up to six months:
Provided that he shall be released from such detention on the amount mentioned in the warrant for his detention being paid to the officer-in-charge of the civil prison.
(12) A defaulter released from detention under this section shall not, merely by reason of his release, be discharged from his liability for the arrears but he shall not be liable to be arrested under the certificate in execution of which he was detained in the civil prison.
(13) A detention order may be executed at any place in India in the manner provided for the execution of warrant of arrest under the Code of Criminal Procedure. 1973 (2 of 1974).
(1) Any contravention under section 13 may, on an application made by the person committing such contravention, be compounded within one hundred and eighty days from the date of receipt of application by the Director of Enforcement or such other officers of the Directorate of Enforcement and officers of the Reserve Bank as may be authorised in this behalf by the Central Government in such manner as may be prescribed.
(2) Where a contravention has been compounded under sub-section (1), no proceeding or further proceeding, as the case may be, shall be initiated or continued, as the case may be, against the person committing such contravention under that section, in respect of the contravention so compounded.
(1) For the purpose of adjudication under section 13, the Central Government may, by an order published in the Official Gazette, appoint as many officers of the Central Government as it may think fit, as the Adjudicating Authorities for holding an inquiry in the manner prescribed after giving the person alleged to have committed contravention under section 13, against whom a complaint has been made under sub-section
(2) (hereinafter in this section referred to as the said person) a reasonable opportunity of being heard for the purpose of imposing any penalty:
Provided that where the Adjudicating Authority is of opinion that the said person is likely to abscond or is likely to evade in any manner, the payment of penalty, if levied, it may direct the said person to furnish a bond or guarantee for such amount and subject to such conditions as it may deem fit.
(2) The Central Government shall, while appointing the Adjudicating Authorities under sub-section (1), also specify in the order published in the Official Gazette their respective jurisdiction.
(3) No Adjudicating Authority shall hold an enquiry under sub-section (1) except upon a complaint in writing made by any officer authorised by a general or special order by the Central Government.
(4) The said person may appear either in person or take the assistance of a legal practitioner or a chartered accountant of his choice for presenting his case before the Adjudicating Authority
(5) Every Adjudicating Authority shall have the same powers of a civil court which are conferred on the Appellate Tribunal under sub-section (2) of section 28 and;-
(a) All proceedings before it shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1860); (b) Shall be deemed to be a civil court for the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
(6) Every Adjudicating Authority shall deal with the compliant under sub-section (2) as expeditiously as possible and endeavor shall be made to dispose off the complaint finally within one year from the date of receipt of the complaint:
Provided that where the complaint cannot be disposed off within the said period, the Adjudicating Authority shall record periodically the reasons in writing for not disposing off the complaint within the said period.
(1) The Central Government shall, by notification, appoint one or more Special Directors (Appeals) to hear appeals against the orders of the Adjudicating Authorities under this section and shall also specify in the said notification the matter and places in relation to which the Special Director (Appeals) may exercise jurisdiction.
(2) Any person aggrieved by an order made by the Adjudicating Authority, being an Assistant Director of Enforcement or a Deputy Director of Enforcement, may prefer an appeal to the Special Director (Appeals)
(3) Every appeal under sub-section (1) shall be filed within forty-five days from the date on which the copy of the order made by the Adjudicating Authority is received by the aggrieved person and it shall be in such form, verified in such manner and be accompanied by such fee as may be prescribed:
Provided that the Special Director (Appeals) may entertain an appeal after the expiry of the said period of forty-five days, if he is satisfied that there was sufficient cause for not filing it within that period.
(4) On receipt of an appeal under sub-section (1), the Special Director (Appeals) may after giving the parties to the appeal an opportunity of being heard, pass such order thereon as he thinks fit confirming, modifying or setting aside the order appealed against.
(5) The Special Director (Appeals) shall send a copy of every order made by him to the parties to appeal and to the concerned Adjudicating Authority.
(6) The Special Director (Appeals) shall have the same powers of a civil court which are conferred on the Appellate Tribu
The Central Government shall, by notification, establish an Appellate Tribunal to be known as the Appellate Tribunal for Foreign Exchange to hear appeals against the orders of the Adjudicating Authorities and the Special Director (Appeals) under this Act.
(1) Save as provided in sub-section (2), the Central Government or any person aggrieved by an order made by an Adjudicating Authority other than those referred to sub-section (1) of section 17, or the Special Director (Appeals), may prefer an appeal to the Appellate Tribunal:
Provided that any person appealing against the order of the Adjudicating Authority or the Special Director (Appeals) levying any penalty, shall while filing the appeal, deposit the amount of such penalty with such authority as may be notified by the Central Government:
Provided further that where in any particular case, the Appellate Tribunal is of the opinion that the deposit of such penalty would cause undue hardship to such person, the Appellate Tribunal may dispense with such deposit subject to such conditions as it may deem fit to impose so as to safeguard the realisation of penalty.
(2) Every appeal under sub-section (1) shall be filed within a period of forty-five days from the date on which a copy of the order made by the Adjudicating Authority or the Special Director (Appeals) is received by the aggrieved person or by the Central Government and it shall be in such form verified in such manner and be accompanied by such fee as may be prescribed:
Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of forty-five days if it is satisfied that there was sufficient cause for not filing it within that period.
(3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the order appealed against.
(4) The Appellate Tribunal shall send a copy of every order made by it to the par-ties to the appeal and to the concerned Adjudicating Authority (or the Special Director (Appeals) as the case may be.
(5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal finally within one hundred and eighty days from the date of receipt of the appeal:
Provided that where any appeal could not be disposed off within the said period of one hundred and eighty days, the Appellate Tribunal shall record its reasons in writing for not disposing off the appeal within the said period.
(6) The Appellate Tribunal may, for the purpose of examining the legality, propriety or correctness of any order made by the Adjudicating Authority under section 16 in relation to any proceeding, on its own motion or other-wise, call for the records of such proceedings and make such order in the case as it think fit.
(1) The Appellate Tribunal shall consist of a Chairperson and such number of Members as the Central Government may deem fit.
(2) Subject to the provisions of this Act,-
(a) The jurisdiction of the Appellate Tribunal may be exercised by Benches thereof;
(b) A Bench may be constituted by the Chairperson with one or more Members as the Chairperson may deem fit;
(c) The Benches of the Appellate Tribunal shall ordinarily sit at New Delhi and at such other places as the Central Government may, in consultation with the Chairperson, notify;
(d) The Central Government shall notify the areas in relation to which each Bench of the Appellate Tribunal may exercise jurisdiction.
(3) Notwithstanding anything contained in sub-section (2), the Chairperson may transfer a member from one Bench to another Bench.
(4) If at any stage of the hearing of any case or matter it appears to the Chairperson or a Member that the case or matter is of such a nature that it ought to be heard by a Bench consisting of two Members, the case or matter may be transferred by the Chairperson or, as the case may be, referred to him for transfer, to such Bench as the Chairperson may deem fit.
(1) A person shall not be qualified for appointment as the Chairperson or a Member unless he;-
(a) In the case of Chairperson, is or has been, or is qualified to be, a Judge of a High Court; and
(b) In the case of a Member, is or has been, or is qualified to be, a District Judge.
(2) A person shall not be qualified for appointment as a Special Director (Appeals) unless he;-
(a) Has been a member of the Indian Legal Service and has held a post in Grade 1 of that Service; or
(b) Has been a member of the Indian Revenue Service and has held a post equivalent to a Joint Secretary to the Government of India
The Chairperson and every other Member shall hold office as such for a term of five years from the date on which he enters upon his office:
Provided that no Chairperson or other Member shall hold office as such after he has attained,-
(a) In the case of the Chairperson, the age of sixty-five years;
(b) In the case of any other Member, the age of sixty-two years.
The salary and allowances payable to and the other terms and conditions of service of the Chairperson, other Members and the Special Director (Appeals) shall be such as may be prescribed:
Provided that neither the salary and allowances nor the other terms and conditions of service of the Chairperson or a Member shall be varied to his disadvantage after appointment.
If, for reason other than temporary absence, any vacancy occurs in the office of the Chairperson or a Member, the Central Government shall appoint another person in accordance with the provisions of this Act to fill the vacancy and the proceedings may be continued before the Appellate Tribunal from the stage at which the vacancy is filled.
(1) The Chairperson or a Member may, by notice in writing under his hand addressed to the Central Government, resign his office:
Provided that the Chairperson or a Member shall, unless he is permitted by the Central Government to relinquish his office sooner, continue to hold office until the expiry of three months from the date of receipt of such notice or until a person duly appointed as his successor enters upon his office or until the expiry of term of office, whichever is the earliest.
(2) The Chairperson or a Member shall not be removed from his office except by an order by the Central Government on the ground of proved misbehavior or incapacity after an inquiry made by such person as the President may appoint for this purpose in which the Chairperson or a Member concerned has been informed of the charges against him and given a reasonable opportunity of being heard in respect of such charges.
(1) In the event of the occurrence of any vacancy in the office of the Chairperson by reason of his death, resignation or otherwise, the senior-most member, shall act as the Chairperson until the date on which a new Chairperson, appointed in accordance with the provisions of this Act to fill such vacancy, enters upon his office.
(2) When the Chairperson is unable to discharge his functions owing to absence, illness or any other cause, the senior-most member, shall discharge the functions of the Chairperson until the date on which the Chairperson resumes his duties.
(1) The Central Government shall provide the Appellate Tribunal and the Special Director (Appeals) with such officers and employees as it may deem fit.
(2) The officers and employees of the Appellate Tribunal and office of the Special Director (Appeals) shall discharge their functions under the general superintendence of the Chairperson and the Special Director (Appeals), as the case may be.
(3) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal and Office of the Special Director (Appeals) shall be such as may be prescribed.
(1) The Appellate Tribunal and the Special Director (Appeals) shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act, the Appellate Tribunal and the Special Director (Appeals) shall have powers to regulate its own procedure.
(2) The Appellate Tribunal and the Special Director (Appeals) shall have, for the purposes of discharging its functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908) while trying a suit, in respect of the following matters, namely:-
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring the discovery and production of documents; (c) Receiving evidence on affidavits;
(d) Subject to the provisions of sections 123 and 124 of the Indian Evidence Act, 1872 (1 of 1872), requisitioning any public record or documents or copy of such record or document from any office;
(e) Issuing commissions for the examination of witnesses or documents;
(f) Reviewing its decisions;
(g) Dismissing a representation of default or deciding it ex-parte;
(h) Setting aside any order of dismissal of any representation for default or any order passed by it ex-parte; and
(i) Any other matter which may be prescribed by the Central Government.
(3) An order made by the Appellate Tribunal or the Special Director (Appeals) under this Act shall be executable by the Appellate Tribunal or the Special Director (Appeals) as a decree of civil court and, for this purpose, the Appellate Tribunal and the Special Director (Appeals) shall have all the powers of a civil court.
(4) Notwithstanding anything contained in sub-section (3), the Appellate Tribunal or the Special Director (Appeals) may transmit any order made by it to a civil court having local jurisdiction and such civil court shall execute the order as if it were a decree made by that court.
(5) All proceedings before the Appellate Tribunal and the Special Director (Appeals) shall be deemed to be judicial proceedings within the meaning of sections 193 and 228 of the Indian Penal Code, 1860 (45 of e 1860) and the Appellate Tribunal shall be deemed to be a civil court the purposes of sections 345 and 346 of the Code of Criminal Procedure, 1973 (2 of 1974).
Where Benches are constituted, the Chairperson may, from time to time, by notification, make provisions as to the distribution of the business of the Appellate Tribunal amongst the Benches and also provide for the matters which may be dealt with by each Bench.
On the application of any of the parties and after notice to the parties, and after hearing such of them as he may desire to be heard, or on his own motion without such notice, the Chairperson may transfer any case pending before one Bench, for disposal, to any other Bench.
If the Members of a Bench consisting of two Members differ in opinion on any point, they shall state the point or points on which they differ, and make a reference to the Chairperson who shall either hear the point or points himself or refer the case for hearing on such point or points by one or more of the other Members of the Appellate Tribunal and such point or points shall be decided according to the opinion of the majority of the Members of the Appellate Tribunal who have heard the case, including those who first heard it.
(1) A person preferring an appeal to the Appellate Tribunal under this Act may either appear in person or take the assistance of a legal practitioner or a Chartered Accountant of his choice to present his case before the Appellate Tribunal or the Special Director (Appeals), as the case may be.
(2) The Central Government may authorise one or more legal practitioners or a Chartered Accountants or any of its officers to act as presenting officers and every person so authorised may present the case with respect to any appeal before the Appellate Tribunal or the Special Director (Appeals), as may be.
The Chairperson, Members and other officers and employees of the Appellate Tribunal the Special Director (Appeals) and the Adjudicating Authority shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code, 1860 (45 of 1860).
No civil court shall have jurisdiction to entertain any suit or proceeding in respect of any matter which an Adjudicating Authority or the Appellate Tribunal or the Special Director (Appeals) is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act.
Any person aggrieved by any decision or order of the Appellate Tribunal or the Special Director (Appeals) may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Appellate Tribunal or the Special Director (Appeals) to him on any question of law arising out of such order:
Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.
Explanation.-In this section High Court means;-
(a) The High Court within the jurisdiction of which the aggrieved party ordinarily resides or carries on business or personally works for gain; and
(b) Where the Central Government is the aggrieved party, the High Court within the jurisdiction of which the respondent, or in a case where there are more than one respondent, any of the respondents, ordinarily resides or carries on business or personally works for gain.
(1) The Central Government shall establish a Directorate of Enforcement with a Director and such other officers or class of officers as it thinks fit, who shall be called officers of Enforcement, for the purposes of this Act.
(2) Without prejudice to provisions of sub-section (1), the Central Government may authorise the Director of Enforcement or an Additional Director of Enforcement or a Special Director of Enforcement or a Deputy Director of Enforcement to appoint officers of Enforcement below the rank of an Assistant Director of Enforcement.
(3) Subject to such conditions and limitations as the Central Government may impose, an officer of Enforcement may exercise the powers and discharge the duties conferred or imposed on him under this Act.
(1) The Director of Enforcement and other officers of Enforcement not below the rank of an Assistant Director shall take up for investigation the contravention referred to in section 13.
(2) Without prejudice to the provisions of sub-section (1), the Central Government may also, by notification, authorise any officer or class of officers in the Central Government, State Government or the Reserve Bank, not below the rank of an Under Secretary to the Government of India to investigate any contravention referred to in section 13.
(3) The officers referred to in sub-section (1) shall exercise the like powers which are confer-red on income-tax authorities under the Income-tax Act, 1961 (43 of 1961) and shall exercise such powers, subject to such limitations laid down under that Act.
(1) The Central Government may, by order and subject to such conditions and limitations as it thinks fit to impose, authorise any officer of customs or any central excise officer or any police officer or any other officer of the Central Government or a State Government to exercise such of, the powers and discharge such of the duties of the Director of Enforcement or any other officer of Enforcement under this Act as may be stated in the order.
(2) The officers referred to in sub-section (1) shall exercise the like powers which are conferred on the income-tax authorities under the Income-tax Act, 1961 (43 of 1961), subject to such conditions and limitations as the Central Government may impose
Where any document-
(i) Is produced or furnished by any person or has been seized from the custody or control. of any person, in either case, under this Act or under any other law; or
(ii) Has been received from any place outside India (duly authenticated by such authority or person and in such manner as may be prescribed) in the course of investigation of any contravention under this Act alleged to have been committed by any person, and such document is tendered in any proceeding under this Act in evidence against him, or against him and any other person who is proceeded against jointly with him. the court or the adjudicating authority, as the case may be, shall-
(a) Presume, unless the contrary is proved, that the signature and every other part of such document which purports to be in the handwriting of any particular person or which the court may reasonably assume to have been signed by, or to be in the handwriting of, any particular person, is in that person’s handwriting and in the case of a document executed or attested, that it was executed or attested by the person by whom it purports to have been so executed or attested;
(b) Admit the document in evidence notwithstanding that it is not duly stamped, if such document is otherwise admissible in evidence;
(c) In a case falling under clause (i), also presume, unless the contrary is proved, the truth of the contents of such document
(1) If the Central Government is satisfied that circumstances have arisen rendering it necessary that any permission granted or restriction imposed by this Act should cease to be granted or imposed, or if it considers necessary or expedient so to do in public interest, the Central Government may, by notification, suspend or relax to such extent either indefinitely or for such period as may be notified, the operation of all or any of the provisions of this Act.
(2) Where the operation of any provision of this Act has under sub-section (1) been suspended or relaxed indefinitely, such suspension or relaxation may, at any time while this Act remains in force, be removed by the Central Government by notification.
(3) Every notification issued under this section shall be laid, as soon as may be after it is issued, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the notification or both Houses agree that the notification should not be issued, the notification shall thereafter have effect only in such modified form or be of no effect, 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 notification.
For the purposes of this Act, the Central Government may, from time to time, give to the Reserve Bank such general or special directions as it thinks fit and the Reserve Bank shall, in the discharge of its functions under this Act, comply with any such directions.
(1) Where a person committing a contravention of any of the provisions of this Act or of any rule, direction or order made there under is a company, every person who, at the time the contravention was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company as well as the company, shall be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly:
Provided that nothing contained in this sub-section shall render any such person liable to punishment if he proves that the contravention took place without his knowledge or that he exercised due diligence to prevent such contravention.
(2) Notwithstanding anything contained in sub-section (1), where a contravention of any of the provisions of this Act or of any rule, direction or order made there under has been committed by a company and it is proved that the contravention has taken place with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contravention and shall be liable to be proceeded against and punished accordingly.
Explanation.- For the purposes of this section-
(i) “Company” means any body corporate and includes a firm or other association of individuals; and (ii) “Director”, in relation to a firm, means a partner in the firm.
Any right, obligation, liability, proceedings or appeal arising in relation to the provisions of section 13 shall not abate by reason of death or insolvency of the person liable under that section and upon such death or insolvency such rights and obligations shall devolve on the legal representative of such person or the official receiver or the official assignee, as the case may be:
Provided that a legal representative of the deceased shall be liable only to the extent of the inheritance or estate of the deceased.
No suit, prosecution or other legal proceedings shall lie against the Central Government or the Reserve Bank or any officer of that Government or of the Reserve Bank or any other person exercising any power or discharging any functions or performing any duties under this Act, for anything in good faith done or intended to be done under this Act or any rule, regulation, notification, direction or order made there under.
(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order, do anything not inconsistent with the provisions of this Act for the purpose of removing the difficulty:
Provided that no such order shall be made under this section after the expiry of two years from the commencement of this Act.
(2) Every order made under this section shall be laid, as soon as may be after it is made, before each House of Parliament.
(1) The Central Government may, by notification, make rules to carry out the provisions of this Act.
(2) Without prejudice to the generality of the foregoing power, such rules may provide for,-
(a) The imposition of reasonable restrictions on current account transactions under section 5;
(b) The manner in which the contravention may be compounded under sub-section (1) of section 15;
(c) The manner of holding an inquiry by the Adjudicating Authorities under sub-section (1) of section 16;
(d) The form of appeal and fee for filing such appeal under sections 17 and 19;
(e) The salary and allowances payable to and the other terms and conditions of service of the Chairperson and other Members of the Appellate Tribunal and the Special Director (Appeals) under section 23;
(f) The salaries and allowances and other conditions of service of the officers and employees of the Appellate Tribunal and the Office of the Special Director (Appeals) under sub-section (3) of section 27;
(g) The additional matters in respect of which the Appellate Tribunal and the Special Director (Appeals) may exercise the powers of a civil court under clause (i) of sub-section (2) of section 28;
(h) The authority or person and the manner in which any documents may be authenticated under clause (ii) of section 39; and
(i) Any other matter which is required to be, or may be prescribed
(1) Reserve Bank may, by notification, make regulations, to carry out the provisions of this Act and the rules made there under :
(2) Without prejudice to the generality of the foregoing power, such regulations may provide for,-
(a) The permissible classes of capital account transactions, the limits of admissibility of foreign exchange for such transactions, and the prohibition, restriction or regulation of certain capital account transactions under section 6;
(b) The manner and the form in which the declaration is to be furnished under clause (a) of sub-section (1) of section 7;
(c) The period within which and the manner of repatriation of foreign exchange under section 8;
(d) The limit up to which any person may possess foreign currency or foreign coins under clause (a) of section 9;
(e) The class of persons and the limit up to which foreign currency account may be held or operated under clause (b) of section 9;
(f) The limit up to which foreign exchange acquired may be exempted under clause (d) of section 9;
(g) The limit up to which foreign exchange acquired may be retained under clause (e) of section 9;
(h) Any other matter which is required to be, or may be, specified.
Every rule and regulation made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or regulation or both Houses agree that the rule or regulation should not be made, the rule or regulation shall thereafter have effect only in such modified form or be of no effect, 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 or regulation.
(1) The Foreign Exchange Regulation Act, 1973 (46 of 1973) is hereby repealed and the Appellate Board constituted under sub-section (1) of section 52 of the said Act (hereinafter referred to as the repealed Act) shall stand dissolved.
(2) On the dissolution of the said Appellate Board, the person appointed as Chairman of the Appellate Board and every other person appointed as Member and holding office as such immediately before such date shall vacate their respective offices and no such Chairman or other person shall be entitled to claim any compensation for the premature termination of the term of his office or of any contract of service.
(3) Notwithstanding anything contained in any other law for the time being in force, no court shall take cognizance of an offence under the repealed Act and no adjudicating officer shall take notice of any contravention under section 5 1 of the repealed Act after the expiry of a period of two years from the date of the commencement of this Act.
(4) Subject to the provisions of sub-section (3) all offences committed under the repealed Act shall continue to be governed by the provisions of the repealed Act as if that Act had not been repealed.
(5) Notwithstanding such repeal,-
(a) Anything done or any action taken or purported to have been done or taken including any rule, notification, inspection, order or notice made or issued or any appointment, confirmation or declaration made or any licence, permission, authorization or exemption granted or any document or instrument executed or any direction given under the Act hereby repealed shall, in so far as it is not inconsistent with the provisions of this Act, be deemed to have been done or taken under the corresponding provisions of this Act;
(b) Any appeal preferred to the Appellate Board under sub-section (2) of section 52 of the repealed Act but not disposed of before the commencement of this Act shall stand transferred to and shall be disposed of by the Appellate Tribunal constituted under this Act;
(c) Every appeal from any decision or order of the Appellate Board under sub-section (3) or sub-section (4) of section 52 of the repealed Act shall, if not filed before the commencement of this Act, be filed before the High Court within a period of sixty days of such commencement:
Provided that the High Court may entertain such appeal after the expiry of the said period of sixty days if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period.
(6) Save as otherwise provided in sub-section (3), the mention of particular matters in sub-sections (2), (4) and (5) shall not be held to prejudice or affect the general application of section 6 of the General Clauses Act, 1897 (10 of 1897) with regard to the effect of repeal.
There are many ventures in the world which a person or group of persons would like to undertake but which usually according to their families or friends are not worth pursuing. Sometimes these ventures benefit the society too but due to lack of funds, external pressures etc. the groups break up and the dream of doing something is lost in the mist. It is with this view to promote such social welfare activities the Societies Registration Act was brought into effect in 1860 so that people could form a society, have a well defined purpose, have enough resources, funds etc. and are also immune from external pressures, tensions etc. so that their purposes are fulfilled.
Act 21 of 1860
The societies Registration Act, 1860 (21 of 1860) came into force on 21st May, 1860.
Preamble:-
(21 of 1860)
[21st May, 1860]
An Act for the Registration of Literary, Scientific and Charitable Societies
Whereas it is expedient the provision should be made for improving the legal condition of societies established for the promotion of literature, science, or the fine arts, or for the diffusion of useful knowledge, the diffusion of political education or for charitable purposes; it is enacted as follows:
any seven or more persons associated for any literary, scientific, or charitable purpose, or for any such purpose as is described in section 20 of this Act, may, by subscribing their names to a memorandum of association, and filing the same with Registrar of Joint-stock Companies from themselves into a society under this Act.
The memorandum of association shall contain the following things, that is to say,- the name of society; the object of the society; the names, addresses, and occupations of the governors, council, directors, committee, or other governing body to whom, by the rules of the society, the management of its affairs is entrusted.
A copy of the rules and regulations of the society, certified to be a correct copy by not less than three of the members of the governing body, shall be filed with the memorandum of association.
Upon such memorandum and certified copy being filed, the Registrar shall certify under his hand that the society is registered under this Act. There shall be paid to the Registrar for every such registration a fee of fifty rupees, or such smaller fees as the state Government may, from time to time, direct; and all fees so paid shall be accounted for to the state Government.
Once in every year, on or before the fourteenth day succeeding the day on which, according to the rules of the society, the annual general meeting of the society is held, or, if the rules do not provide for an annual general meeting, in the month of January, a list shall be filed with the Registrar of Joint-stock Companies, of the names, addresses and occupations of the governors, council, directors, committee, or other governing body then entrusted with the management of the affairs of the society.
The property, movable and immovable, belonging to a society registered under this Act, if no vested in trustees, shall be deemed to be vested, for the time being, in the governing body of such society, and in all proceedings, civil and criminal, may be described as the property of the governing body of such society for their proper title.
Every society registered under this Act may sue or be sued in the name of President, Chairman, or Principal Secretary, or trustees, as shall be determined by the rules and regulations of the society and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion:
Provided that it shall be competent for any person having a claim, or demand against the society, to sue the President, Chairman, or Principal Secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant.
No suit or proceeding in any Civil Court shall abate or discontinue by reason of the person, by or against whom such suit or proceedings shall have been brought or continued, dying or ceasing to fill the character in the name whereof he shall have sued or been sued, but the same suit proceeding shall be continued in the name of or against the successor or such person.
If a judgment shall be recovered against the person or officer named on behalf of the society, such judgment shall not be put in force against the property, movable or immovable, or against the body of such person or officer, but against the property of the society.
The application for execution shall set forth the judgment, the fact of the party against whom it shall have been recovered having sued or having been sued, as the case may be, on behalf of the society only, and shall require to have the judgment enforced against the property of the society.
Whenever by any bye-law duly made in accordance with the rules and regulations of the society, or, if the rules do not provide for the making of bye-laws, by any bye0law made at a general meeting of the members of the society convened for the purpose for the making of which the concurrent votes of three-fifths of the members present at such meeting shall be necessary any pecuniary penalty is imposed for the breach of any rule or bye-law of the society, such penalty, when accrued, may be recoverable in any court having jurisdiction where the defendant shall reside, or the society shall be situate, as the governing body thereof shall deem expedient.
Any member who may be in arrear of a subscription which according to the rules of the society he is bound to pay, or who shall possess himself of or detain any property of the society in a manner or for a time contrary to such rules, or shall injure or destroy any property of the society, may be sued for such arrear or for the damage accruing from such detention, injury, or destruction of the property in the manner hereinbefore provided.
Recovery by successful defendant of costs adjudged.- But if the defendant shall be successful in any suit or other proceedings brought against him at the instance of the society, and shall be adjudged to recover his costs, he may elect to proceed to recover the same from the officer in whose name the suit shall be brought, or from the society, and in the latter case shall have process against the property of the said society in the manner above described.
Any member of the society who shall steal, purloin, or embezzle any money or other property, or willfully and maliciously destroy or injure any property of such society, or shall forge and deed, bond, security for money, receipt, or other instrument, whereby the funds of the society may be exposed to loss, shall be subject to the same prosecution, and, if convicted, shall be liable to be punished in like manner, as any person not a member would be subject and liable to in respect of the like offence.
Whenever it shall appear to the governing body of any society registered under this Act, which has been established for any particular purpose or purposes, that it is advisable to alter, extend, or abridge such purpose to or for other purposes within in the meaning of this Act, or to amalgamate such society either wholly or partially with any other society, such governing body may submit the proposition to the members of the society in a written or printed report, any may convene a special meeting for the consideration thereof according to the regulations of the society; but no such proposition shall be carried into effect unless such report shall have been delivered or sent by post to every member of the society ten days previous to the special meeting converted by the governing body for the consideration thereof, no unless such proposition shall have been agreed to by the votes of three-fifths of the members delivered in person or by proxy, and confirmed by the votes of three-fifths of the members present at a second special meeting convened by the governing body at an interval of one month after the former meeting.
Any number not less than three-fifths of the members of any society may determine that it shall be dissolved, and thereupon it shall be dissolved forthwith, or at the time then agreed upon, and all necessary steps shall be taken for the disposal and settlement of the property of the society, its claims and liabilities, according to the rules of the said society applicable thereto, if any, and if not, then as the governing body shall find expedient provided that, in the event of any dispute arising among the said governing body or the members of the society, the adjustment of its affairs shall be referred to the principal Court of original civil jurisdiction of the district in which the chief building of the society is situated; and the Court shall make such order in the matter as it shall deem requisite.
Assent required.- Provided that no society shall be dissolved unless three-fifths of the members shall have expressed a wish for dissolution by their votes delivered in person by their votes delivered in person, or by proxy, at a general meeting convened for the purpose:
Government consent.- Provided that whenever any government is a member of, or a contributor to, or otherwise interested in any society registered under this Act, such society shall not be dissolved without the consent of the Government of the State or registration.
If upon the dissolution of any society registered under this Act there shall remain, after the satisfaction of all its debts and liabilities, any property whatsoever, the same shall not be paid to or distributed among the members of the said society or any of them, but shall be given to some other society, to be determined by the votes of not less than three-fifths of the members present personally or by proxy at the time of the dissolution, or, in default thereof, by such court as aforesaid:
Clause not to apply to Joint-stock companies.- Provided, however, that this clause shall not apply to any society which has been founded or established by the contributions of share-holders in the nature of a Joint-stock Company.
For the purposes of this Act a member of a society shall be a person who, having been admitted therein according to the rules and regulations thereof, shall have paid a subscription, or shall have signed the roll or list of members thereof, and shall not have resigned in accordance with such rules and regulations;
Disqualified members.- but in all proceedings under this Act no person shall be entitled to vote or be counted as a member whose subscription at the time shall have been in arrears for a period exceeding three months.
The governing body of the society shall be the governors, council, directors, committee, trustees or other body to whom by the rules and regulations of the society the management of its affairs is entrusted.
Any company or society established for a literary, scientific or charitable purpose, and registered under Act 43 of 1850, or any such society established and constituted previously to the passing of this Act but not registered under this said Act 43 of 1850, may at any time hereafter be registered as a society under this Act;
Assent required.- subject to the proviso that no such company or society shall be registered under this Act unless an assent to its being so registered has been given by three-fifths of the members present personally, or by proxy, at some general meeting convened for that purpose by the governing body. In the case of a company or society registered under this Act 43 of 1850, the directors shall be deemed to be such governing body. In the case of a society not so registered, if so such body shall have been constituted on the establishment of the society, it shall be competent for the members thereof, upon due notice, to create for itself a governing body to act for the society thenceforth.
In order to any such society as is mentioned in the last preceding section obtaining registry under this Act, it shall be sufficient that the governing body file with the Registrar of Joint-stock Companies a memorandum showing the name of the society, the objects of the society, and the names, address and occupations of the governing body, together with a copy of the rules and regulations of the society certified as provided in section 2, and a copy of the report of the proceedings of the general meeting at which the registration was resolved on.
Any person may inspect all documents filed with the Registrar under this Act on payment of a fee of one rupee for each inspection; and any person may require a copy or extract of any document or any part of any document, to be certified by the registrar, on payment of two annas for every hundred words of such copy or extract; and such certified copy shall be prima facie evidence of the matter therein contained in all legal proceedings whatever.
The following societies may be registered under this Act:-
Charitable societies, the military orphans funds or societies established at the several presidencies of India, societies established for the promotion of science, literature, or the fine arts for instruction, the diffusion of useful knowledge, the diffusion of political education the foundation or maintenance of libraries or reading-rooms for general use among the members or open to the public or public museums and galleries or paintings and other works of art, collections of natural history, mechanical and philosophical inventions, instruments, or designs.
1[(1)] In this Act, unless there shall be something repugnant in the subject or context, -
“Book” includes every volume, part or division of a volume, and pamphlet, in any language, and every sheet of music, map, chart or plan separately printed 2[* * *]
3[* * *]
4[“Editor” means the person who controls the selection of the matter that is published in a newspaper;]
5[* * *]
“Magistrate” means any person exercising the full powers of a 6Magistrate, and includes a 7Magistrate of police 8[* * *];
9[“Newspaper” means any printed periodical work containing public news or comments on public news;]
10[* * *]
11[“Paper” means any document, including a newspaper, other than a book;
“Prescribed” means prescribed by rules made by the Central Government under section 20A;
“Press Registrar” means the Registrar of newspapers for India appointed by the Central Government under section 19A and includes any other person appointed by the Central Government to perform all or any of the functions of the Press Registrar;
“Printing” includes cyclostyling and printing by lithography;
“Register” means the Register of newspapers maintained under section 19B.]
12[(2) Any reference in this Act to any law which is not in force in the State of Jammu and Kashmir shall, in relation to that State, be construed as a reference to the corresponding law in force in that State.]
——————–
1. Section 1 re-numbered as sub-section (1) thereof by Act 16 of 1965, sec. 2 (w.e.f 1-1 1-1965).
2. The words “or lithographed” omitted by Act 55 of 1955, sec. 4 (w.e.f 1-7-1956).
3. Definition of “British India” rep. by the A.0. 1937 see now the definition in sec. 3 (5) of the General Clauses Act, 1897 (10 of 1897).
4. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.
5. Definition of ‘India” omitted by Act 16 of 1965, sec. 2 (w.e.f. 1-1 1-1965).
6. Now Magistrate of the first class, see the Code of Criminal Procedure, 1973 (2 of 1974).
7. Now Presidency Magistrate, see Code of Criminal Procedure, 1973 (2 of 1974).
8. The words “and a Justice of the Peace” rep. by Act IO of 1890, sec.2.
9. Ins. by Act 14 of 1922, sec.3 and Sch, 1.
10. Paragraphs relating to the definitions of “Number” and “Gender” rep. by Act 10 of 1914, sec.3 and Sch. 11; definition of “Local Government” rep. by the A.0. 1937 and the definition of “States” ins. by the A.0. 1950 was rep. by Act 3 of 195 1, sec.3 and Sch.
11. Ins. by Act 55 of 1955, sec. 4 (w.e.f. 1-7-1956).
12. Ins. by Act 16 1965, sec.2 (w.e.f 1-1 1-1965).
[Rep. by the Repealing Act, 1870 (14 of 1870), sec. 1 and Sch., Pt. II.]
Every book or paper printed within 1[India] shall have printed legibly on it the name of the printer and the place of printing, and (if the book or paper be published) 2[the name] of the publisher, and the place of publication.
——————–
1. Subs. by Act 3 of 1951, sec.3 and Sch., for “the States”.
2. Ins. by Act 12 of 1891, sec.2 and Sch. 11, Pt. I.
1[(1)] No person shall within 2[India], keep in his possession any press for the printing of books or papers, who shall not have made and subscribed the following declaration before 3[the District, Presidency or Sub divisional Magistrate] within whose local jurisdiction such press may be:
“I, A.B., declare that I have a press for printing at. -
And this last blank shall be filled up with a true and precise description of the place where such press may be situate.
4[(2)] As often as the place where a press is kept is changed, a new declaration shall be necessary:
Provided that where the change is for a period not exceeding sixty days and the place where the press is kept after the change is within the local jurisdiction of the Magistrate referred to in sub-section (1), no new declaration shall be necessary if-
(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and
(b) The keeper of the press continues to be the same.]
——————–
1. Section 4 re-numbered as sub-section (1) of that section by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).
2. Subs. by Act 3 of 1951, sec.3 and Sch., for “the States”.
3. Subs. by Act 56 of 195 1, sec.36, for “the Magistrate” (w.e.f. 1-2-1952).
4. Ins. by Act 55 of 1955, sec.5 (w.e.f. 1-7-1956).
No 1[newspaper] shall be published in 2[India], except in conformity with the rules hereinafter laid down:
3[(1) Without prejudice to the provisions of section 3, every copy of every such newspaper shall contain the names of the owner and editor thereof printed clearly on such copy and also the date of its publication.]
4[(2)] The printer and the publisher of every such 5[newspaper] shall appear 6[in person or by agent authorised in this behalf in accordance with rules made under section 20, before a District, Presidency or Sub-divisional Magistrate within whose local jurisdiction such newspaper shall be printed or published and shall make and subscribe, in duplicate, the following declaration:
“I A.B., declare that I am the printer (or publisher, or printer and publisher) of the 5[newspaper] entitled – 7[and to be printed or published, or to be printed and published], as the case may be at-”.
And the last blank in this form of declaration shall be filled up with a true and precise account of the premises where the printing or publication is conducted.
8[(2A) Every declaration under rule (2) shall specify the title of the newspaper, the language in which it is to be published and the periodicity of its publication and shall contain such other particulars as may be prescribed.]
9[(2B) Where the printer or publisher of a newspaper making a declaration under rule (2) is not the owner thereof, the declaration shall specify the name of the owner and shall also be accompained by an authority in writing from the owner authorising such person to make and subscribe such declaration.
(2C) A declaration in respect of a newspaper made under rule (2) and authenticated under section 6 shall be necessary before the newspaper can be published.
(2D) Where the title of any newspaper or its language or the periodicity of its publication is changed, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.
(2E) As often as the ownership of a newspaper is changed, a new declaration shall be necessary.]
10[(3)] As often as the place of printing or publication is changed; a new declaration shall be necessary:
11[Provided that where the change is for a period not exceeding thirty days and the place of printing or publication after the change is within the local jurisdiction of the Magistrate referred to in rule (2), no new declaration shall be necessary if-
(a) A statement relating to the change is furnished to the said Magistrate within twenty four hours thereof, and
(b) The printer or publisher or the printer and publisher of the newspaper continues to be the same.]
12[(4)] As often as the printer or the publisher who shall have made such declaration as is aforesaid shall leave India for a period exceeding ninety days or where such printer or publisher is by infinity or otherwise rendered incapable of carrying out his duties for a period exceeding ninety days in circumstances not involving the vacation of his appointment, a new declaration shall be necessary.]
11[(5) Every declaration made in respect of a newspaper shall be void, where the newspaper does not commence publication-
(a) Within six weeks 13[of the authentication of the declaration under section 6], in the case of a newspaper to be published once a week or oftener; and
(b) Within three months 13[of the authentication of the declaration under section 6], in the case of any other newspaper,
And in every such case, a new declaration shall be necessary before the newspaper can be published.
(6) Where, in any period of three months, any daily, tri-weekly, bi-weekly, weekly or fortnightly newspaper publishes issues the number of which is less than half of what should have been published in accordance with the declaration made in respect thereof, the declaration shall cease to have effect and a new declaration shall be necessary before the publication of the newspaper can be continued.
(7) Where any other newspaper has ceased publication for a period, exceeding twelve months, every declaration made in respect thereof shall cease to have effect, and a new declaration shall be necessary before the newspaper can be re-published.
(8) Every existing declaration in respect of a newspaper shall be cancelled by the Magistrate before whom a new declaration is made and subscribed in respect of the same:]
14[Provided that no person 15[who does not ordinarily reside in India, or] who has not attained majority in accordance with the provisions of the Indian Majority Act, 1875 (9 of 1875), or of the law to which he is subject in respect of the attainment of majority, shall be permitted to make the declaration prescribed by this section, nor shall any such person edit a newspaper.]
——————–
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for certain words.
2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.
3. Subs. by Act 26 of 1960, sec. 2, for rule (1) (w.e.f 1-10-1960) which was ins. by Act 14 of 1922, sec. 3 and Sch. 1.
4. Rule (1) re-numbered as rule (2) by Act 14 of 1922, sec. 3 and Sch. 1.
5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.
6. The words “, or such printer or publisher resides,” omitted by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).
7. Subs. by Act 55 of 1955, sec. 6, for certain words (w.e.f. 1-7-1956).
8. Ins. by Act 55 of 1955, sec. 6 (w.e.f. 1-7-1956).
9. Ins. by Act 26 of 1960, sec. 2 (w.e.f. 1-10-1960).
10. Rule (2) re-numbered as rule (3) by Act 14 of 1922, sec. 3 and Sch, 1.
11. Ins. by Act 55 of 1955, sec. 6 (w.e.f 1-7-1956).
12. Subs. by Act 26 of l960, sec.2 for rule (4) (w.e.f 1-10-1960), which had been re-numbered for the original rule (3) by Act 14 of 1922, see. 3 and Sch. 1.
13. Subs. by Act 26 of 1960, sec. 2, for “of the declaration” (w.e.f. 1-10- 1960).
14. Ins. by Act 14 of 1922, sec. 3 and Sch. 1
15. Ins. by Act 26 of 1960, sec. 2 (w.e.f I- I 0- 1 960).
1[Keepers of printing presses and printers and publishers of newspapers in Jammu and Kashmir to make and subscribe fresh declarations within specified period. (1) No person who has made and subscribed a declaration in respect of any press under section 4 of the Jammu and Kashmir State Press and Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall keep the press in his possession for the printing of books or papers 2[after the 31st day of December 1968, unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that press under section 4 of this Act.
(2) Every person who has subscribed to any declaration in respect of a newspaper under section 5 of the Jammu and Kashmir State Press Publications Act, S. 1989 (Jammu and Kashmir Act, No. I of S. 1989) shall cease to be the editor, printer or publisher of the newspaper mentioned in such declaration 2[after the 31st day of December, 1968 unless before the expiry of that date] he makes and subscribes a fresh declaration in respect of that newspaper under rule (2) of the rules laid down in section 5 of this Act.]
——————–
1. Ins. by Act 16 of 1965, sec. 3 (w.e.f. 1-1 1-1965).
2. Subs. by Act 30 of 1968, sec. 2, for certain words (retrospectively).
Each of the two originals of every declaration so made and subscribed as is aforesaid, shall be authenticated by the signature and official sea of the Magistrate before whom the said declaration shall have been made:
1[Provided that where any declaration is made and subscribed under section 5 in respect of a newspaper, the declaration shall not, save in the case of newspapers owned by the same person, be so authenticated unless the Magistrate 2[is, on inquiry from the Press Registrar, satisfied] that the newspaper proposed to be published does not bear a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State.]
Deposit. -One of the said originals shall be deposited among the records of the office of the Magistrate, and the other shall be deposited among the records of the High Court of Judicature, or 3[other principal Civil Court of original jurisdiction for the place where] the said declaration shall have been made.
Inspection and supply of copies. -The Officer-in -charge of each original shall allow any person to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said declaration, attested by the seal of the Court which has the custody of the original, on payment of a fee of two rupees.
4[A copy of the declaration attested by the official seal of the Magistrate, or a copy of the order refusing to authenticate the declaration, shall be forwarded as soon as possible to the person making and subscribing the declaration and also to the Press Registrar.]
——————–
1. Ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).
2. Subs. by Act 26 of 1960, sec. 3, for certain words (w.e.f. 1-10-1960).
3. Subs. by Act 10 of 1890, sec. 3, for certain words.
4. Subs. by Act 26 of 1960, see. 3, for the fourth paragraph (w.e.f 1-1 0-1960), which was ins. by Act 55 of 1955, sec. 7 (w.e.f. 1-7-1956).
In any legal proceeding whatever, as well civil as criminal, the production of a copy of such declaration as is aforesaid, attested by the seal of some Court empowered by this Act to have the custody of such declarations, 1[or, in the case of the editor, a copy of the newspaper containing his name printed on it as that of the editor] shall be held (unless the contrary be proved) to be sufficient evidence, as against the person whose name shall be subscribed to such declaration, 1[or printed on such newspaper, as the case may be] that the said person was printer or publisher, or printer and publisher (according as the words of the said declaration may be) of every portion of every 2[newspaper] whereof the title shall correspond with the title of the 2[newspaper] mentioned in the declaration, 1[for the editor of every portion of that issue of the newspaper of which a copy is produced].
——————–
1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.
2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.
3[If any person has subscribed to any, declaration in respect of a newspaper under section 5 and the declaration has been authenticated by a Magistrate under section 6 and subsequently that person ceases to bertha printer or publisher of the newspaper mentioned in such declaration, he shall appear before any District, Presidency or Sub-divisional Magistrate, and make and subscribe in duplicate the following declaration: -
“I, A.B., declare that I have ceased to be the printer or publisher or printer and publisher of the newspaper entitled.–]
Authentication and filing. -Each original of the latter declaration shall be authenticated by the signature and seal of the Magistrate before whom the said latter declaration shall have been made, and one original of the said latter declaration shall be filed along with each original of the former declaration.
Inspection and supply of copies. -The Officer-in-charge of each original of the latter declaration shall allow any person applying to inspect that original on payment of a fee of one rupee, and shall give to any person applying a copy of the said latter declaration, attested by the seal of the Court having custody of the original, on payment of a fee of two rupees.
Putting copy in evidence. -In all trials in which a copy, attested as is aforesaid, of the former declaration shall have been put in evidence, it shall be lawful to put in evidence a copy, attested as is aforesaid, of the latter declaration, and the former declaration shall not be taken to be evidence that the declarant was, at any period subsequent to the date of the latter declaration, printer or publisher of the 1[newspaper] therein mentioned.
2[A copy of the] after declaration attested by the official seal of the Magistrate shall be forwarded to the Press Registrar.]
——————
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.
2. Ins. by Act 55 of 1955, sec. 8 (w.e.f. 1-7-1956).
3. Subs. by Act 55 of 1955, sec. 8, for the first paragraph (w.e.f. 1-7-1956).
1[Person whose name has been incorrectly published as editor may make a declaration before a Magistrate. If any person, whose name has appeared as editor on a copy of a newspaper, claims that he was not the editor of the issue on which his name has so appeared, he may, within two weeks of his becoming aware that his name has been so published, appear before a District, Presidency or Sub-Divisional Magistrate and make a declaration that his name was incorrectly published in that issue as that of the editor thereof, and if the Magistrate after making such inquiry or causing such inquiry to be made as he may consider necessary is satisfied that such declaration is true, he shall certify accordingly, and on that certificate being given the provisions of section 7 shall not apply to that person in respect of that issue of the newspaper.
The Magistrate may extend the period allowed by this section in any case where he is satisfied that such person was prevented by sufficient cause from appearing and making the declaration within that period.]
——————–
1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.
1[Cancellation of declaration. If, on an application made to him by the Press Registrar or any other person or otherwise, the Magistrate empowered to authenticate a declaration under this Act, is of opinion that any declaration made in respect of a newspaper should be cancelled, he may, after giving the person concerned an opportunity of showing cause against the action proposed to be taken, hold an inquiry into the matter and if, after considering the cause, if any, shown by such person and after giving him an opportunity of being heard, he is satisfied that-
(i) The newspaper, in respect of which the declaration has been made is being published in contravention of the provisions of this Act or rules made thereunder; or
(ii) The newspaper mentioned in the declaration bears a title which is the same as, or similar to, that of any other newspaper published either in the same language or in the same State; or
(iii) The printer or publisher has ceased to be the printer or publisher of the newspaper mentioned in such declaration; or
(iv) The declaration was made on false representation or on the concealment of any material fact or in respect of a periodical work, which is not a newspaper;
The Magistrate may, by order, cancel the declaration and shall forward as soon as possible a copy of the order to the person making or subscribing the declaration and a] so to the Press Registrar.
——————–
1. Ins. by Act 26 of 1960, sec. 4 (w.e.f. 1-10-1960).
(1) Any person aggrieved by an order of a Magistrate refusing to authenticate a declaration under section 6 or cancelling a declaration under section 8B may, within sixty days from the date on which such order is communicated to him, prefer an appeal to the Appellate Board to be called the Press and Registration Appellate Board 1[consisting of a Chairman and another member to be nominated by the Press Council of India, established under section 4 of the Press Council Act, 1978 (37 of 1978), from among its members]:
Provided that the Appellate Board may entertain an appeal after the expiry of the said period, if it is satisfied that the appellant was prevented by sufficient cause from preferring the appeal in time.
(2) On receipt of an appeal under this section, the Appellate Board may, after calling for the records from the Magistrate and after making such further inquiries as it thinks fit, confirm, modify or set aside the order appealed against.
(3) Subject to the provisions contained in sub-section (2), the Appellate Board may, by order, regulate its practice and procedure.
(4) The decision of the Appellate Board shall be final.]
——————–
1. Subs. by Act 37 of 1978, scc. 27, for certain words.
1[PART III
DELIVERY OF BOOKS
——————–
1. Subs. by Act 10 of 1890, sec. 4, for the original Part III.
Printed 1[* * *] copies of the whole of every book which shall be printed 1[* * *] in 2[India] after this Act shall come into force, together with all maps, prints or other engravings belonging thereto, finished and coloured in the same manner as the best copies of the same, shall, notwithstanding any agreement (if the book be published) between the printer and publisher thereof, be delivered by the printer at such place and to such officer as the State Government shall, by notification in the Official Gazette, from time to time direct, and free of expense to the Government, as follows, that is to say:-
(a) In any case, within one calendar month after the day on which any such book shall first be delivered out of the press, one such copy, and,
(b) If within one calendar year from such day the State Government shall require the printer to deliver other such copies not exceeding two in number, then within one calendar month after the day on which any such requisition shall be made by the State Government on the printer, another such copy, or two other such copies, as the State Government may direct.
The copies so delivered being bound, sewed or stitched together and upon the best paper on which any copies of the book shall be printed 3[* * *].
The publisher or other person employing the printer shall, at a reasonable time before the expiration of the said month, supply him with all maps, prints and engravings finished and coloured as aforesaid, which may be necessary to enable him to comply with the requirements aforesaid.
Nothing in the former part of this section shall apply to-
(i) Any second or subsequent edition of a book in which edition no additions or alterations either in the letter-press or in the maps, prints or other engravings belonging to the book have been made, and a copy of the first or some preceding edition of which book has been delivered under this Act, or
(ii) Any 4[newspaper] published in conformity with the rules laid down in section 5 of this Act.
——————–
1. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f. 1-7-1956).
2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.
3. The words “or lithographed” omitted by Act 55 of 1955, sec. 9 (w.e.f 1-7-1956).
4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “periodical work”.
The officer to whom a copy of a book is delivered under the last foregoing section shall give to the printer a receipt in writing there for.
The copy delivered pursuant to clause (a) of the first paragraph of section 9 of this Act shall be disposed of as the State Government shall from time to time determine.
Any copy or copies delivered pursuant to clause (b) of the said paragraph shall be 1[transmitted to the Central Government].
——————–
1. Subs. by the A.0. 1948, for certain words.
1[Copies of newspapers printed in India to be delivered gratis to Government. The printer of every newspaper in 2[India] shall deliver at such place and to such officer as the State Government may, by notification in the Official Gazette, direct, and free of expense to the Government, two copies of each issue of such newspaper as soon as it is published.]
——————–
1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.
2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.
1[Copies of newspapers to be delivered to Press Registrar. Subject to any rules that may be made under this Act, the publisher of every newspaper in India shall deliver free of expense to the Press Registrar one copy of each issue of such newspaper as soon as it is published.]
——————–
1. Ins. by Act 55 of 1955, sec. 10 (w.e.f. 1-7-1956).
Whoever shall print or publish any book or paper otherwise than in conformity with the rule contained in section 3 of this Act, shall, on conviction before a Magistrate, be punished by fine not exceeding 1[two thousand] rupees, or by simple imprisonment for a term not exceeding 2[six months], or by both.
——————–
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.
2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.
Whoever shall keep in his possession any such press as aforesaid, 3[In contravention of any of the provisions contained in section 4 of this Act], shall, on conviction before a Magistrate, be punished by fine not exceeding 1[two thousand] rupees, or by simple imprisonment for a term not exceeding 2[six months] or by both.
——————–
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.
2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.
3. Subs. by act 55 of 1955, sec. 11, for “without making such a declaration as is required by section 4 of this Act” (w.e.f. 1-7-1956).
Any person who shall, in making 3[any declaration or other statement) under the authority of this Act, make a statement which is false, and which he either knows or believes to be false, or does not believe to be true, shall, on conviction before a Magistrate, be punished by fine not exceeding 1[two thousand] rupees, and imprisonment for a term not exceeding 2[six months].
——————–
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.
2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.
3. Subs. by Act 55 of 1955, sec. 12, for “any declaration” (w.e.f 1-7-1956).
3[(1)] Whoever shall 2[edit], print or publish any 4[newspaper], without conforming to the rules hereinbefore laid down, or whoever shall 2[edit], print or publish, or shall cause to be 2[edited], printed or published, any 5[newspaper], knowing that the said rules have not been observed with respect to 6[that newspaper], shall, on conviction before a Magistrate, be punished with fine not exceeding 1[two thousand] rupees, or imprisonment for a term not exceeding 2[Six months] or both.
7[(2) Where an offence is committed in relation to a newspaper under sub-section (1), the Magistrate may, in addition to the punishment imposed under the said sub-section, also cancel the declaration in respect of the newspaper.]
——————–
1. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “five thousand”.
2. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “two years”.
3. Section 15 re-numbered as sub-section (1) of that section by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).
4. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work as is hereinbefore described”.
5. Subs. by Act 14 of 1922, sec. 3 and Sch. 1, for “such periodical work”.
6. Subs. by Act I 4 of 1922, sec. 3 and Sch. 1, for “that work”.
7. Ins. by Act 26 of 1960, sec. 5 (w.e.f. 1-10-1960).
1[Penalty for failure to make a declaration under section 8. If any person who has ceased to be a printer or publisher of any newspaper fails or neglects to make a declaration in compliance with section 8, he shall, on conviction before a Magistrate, be punishable by fine not exceeding two hundred rupees.]
——————–
1. Ins. by Act 55 of 1955, sec. 13 (w.e.f. 1-7-1956).
1[Penalty for not delivering books or not supplying printer with maps. If any printer of any such book as is referred to in section 9 of this Act shall neglect to deliver copies of the same pursuant to that section, he shall for every such default forfeit to the Government such sum not exceeding fifty rupees as a Magistrate having jurisdiction in the place where the book was printed may, on the application of the officer to whom the copies should have been delivered or of any person authorised by that officer in this behalf, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the copies which the printer ought to have delivered.
If any publisher or other person employing any such printer shall neglect to supply him, in the matter prescribed in the second paragraph of section 9 of this Act with the maps, prints or engravings which may be necessary to enable him to comply with the provisions of that section, such publisher or other person shall for every such default forfeit to the Government such sum not exceeding fifty rupees as such a Magistrate as aforesaid may, on such an application as aforesaid, determine to be in the circumstances a reasonable penalty for the default, and, in addition to such sum, such further sum as the Magistrate may determine to be the value of the maps, prints or engravings which such publisher or other person ought to have supplied.]
——————–
1. Subs. by Act IO of 1890, sec. 5, for the former secs. 16 and 17.
1[Penalty for failure to supply copies of newspapers gratis to Government. If any printer of any newspaper published in 2[India] neglects to deliver copies of the same in compliance with section 11A, he shall, on the complaint of the officer to whom copies should have been delivered or of any person authorised by that officer in this behalf, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, with fine which may extend to fifty rupees for every default.]
——————–
1. Ins. by Act 14 of 1922, sec. 3 and Sch. 1.
2. Subs. by Act 3 of 195 1, sec. 3 and Sch., for “the States”.
1[Penalty for failure to supply copies of newspapers to Press Registrar. If any publisher of any newspaper published in India neglects to deliver copies of the same in compliance with section 11B, he shall, on the complaint of the Press Registrar, be punishable, on conviction by a Magistrate having jurisdiction in the place where the newspaper was printed, by fine which may extend to fifty rupees for every default.]
——————–
1. Ins. by Act 55 of 1955, sec. 14 (w.e.f 1-7-1956).
Any sum forfeited to the Government under 1[section 16] maybe recovered, under the warrant of the Magistrate determining the sum, or of his successor in office, in the manner authorised by the 2[Code of Criminal Procedure (10 of 1882) for the time being in force, and within the period prescribed by the Indian Penal Code (45 of 1860), for the levy of a fine.
3[* * *]
——————–
1. Subs. by Act 11 of 1923, sec. 2 and Sch. 1, for “the last foregoing section”.
2. See Now the Code of Criminal Procedure, 1973 (2 of 1974).
3. The second paragraph rep. by the A.0. 1937.
There shall be kept at such office, and by such officer as the State Government shall appoint in this behalf, a book to be called a Catalogue of Books printed in 1[India], wherein shall be registered a memorandum of every book which shall have been delivered 2[pursuant to clause (a) of the first paragraph of section 9] of this Act. Such memorandum shall (so far as may be practicable) contain the following particulars (that is to say): -
(1) The title of the book and the contents of the title page, with a translation into English of such title and contents, when the same are not in the English language;
(2) The language in which the book in written;
(3) The name of the author, translator, or editor of the book or any part thereof,
(4) The subject;
(5) The place of printing and the place of publication;
(6) The name or firm of the printer and the name or firm of the publisher;
(7) The date of issue from the press or of the publication;
(8) The number of sheet leaves or pages;
(9) The size;
(10) The first, second or other number of the edition;
(11) The number of copies of which the edition consists;
(12) Whether the book is printed, 3[cyclostyled or lithographed];
(13) The price at which the book is sold to the public; and
(14) The name and residence of the proprietor of the copyright or of any portion of such copyright.
Such memorandum shall be made and registered in the case of each book as soon as practicable after the delivery of the 4[copy there of pursuant to clause (a) of the first paragraph of section 91 5[* * *]
——————–
1. Subs. by Act 3 of 1951, sec. 3 and Sch., for “the States”.
2. Subs. by Act IO of 1890, sec. 6, for “pursuant to section 9”.
3. Subs. by Act 55 of 1955, sec. 15, for “or lithographed” (w.e.f. 1-7-1956).
4. Subs. by Act IO of 1890, sec. 6, for “copies thereof in manner aforesaid”.
5. Last sentence of sec. 18 rep. by Act 3 of 1914, sec. 15 and Sch. 11.
The memoranda registered during each quarter in the said Catalogue shall be published in the Official Gazette, as soon as may be after the end of such quarter, and a copy of the memoranda so published shall be sent 1[* * *] to the Central Government 2[* * *].
——————–
1. The words “to the said Secretary of State, and” rep. by the A.0. 1948.
2. The word “respectively” omitted by the A.0. 1948.
1[PART VA
REGISTRATION OF NEWSPAPERS
——————–
1. Part VA containing sections 19A to 19L ins, by Act 55 of 1955, sec. 16 (w.e.f. 1-7-1956).
The Central Government may appoint a Registrar of newspapers for India and such other officers under the general superintendence and control of the Press Registrar as may be necessary for the purpose of performing the functions assigned to them by or under this Act, and may, by general or special order, provide for the distribution or allocation of functions to be performed by them under this Act.
(1) The Press Registrar shall maintain in the prescribed manner a Register of newspapers.
(2) The Register shall, as far as may be practicable, contain the following particulars about every newspaper published in India, namely: -
(a) The title of the newspaper;
(b) The language in which the newspaper is published;
(c) Periodicity of the publication of the newspaper;
(d) The name of the editor, printer and publisher of the newspaper;
(e) The place of printing and publication;
(f) The average number of pages per week;
(g) The number of days of publication in the year;
(h) The average number of copies printed, the average number of copies sold to the public and the average number of copies distributed free to the public, the average being calculated with reference to such period as may be prescribed;
(i) Retail selling price per copy;
(j) The names and addresses of the owners of the newspaper and such other particulars relating to ownership as may be prescribed;
(k) Any other particulars, which may be prescribed.
(3) On receiving information from time to time about the aforesaid particulars, the Press Registrar shall cause relevant entries to be made in the Register and may make such necessary alterations or corrections therein as may be required for keeping the Register up-to-date.
On receiving from the Magistrate under section 6 a copy of the declaration in respect of a newspaper 1[and on the publication of such newspaper, the Press Registrar shall], as soon as practicable thereafter, issue a certificate of registration in respect of that newspaper to the publisher thereof.
——————-
1. Subs. by Act 26 of 1960, sec. 6, for certain words (w.e.f. 1-10-1960).
It shall be the duty of the publisher of every newspaper-
(a) To furnish to the Press Registrar an annual statement in respect of the newspaper at such time and containing such of the particulars referred to in sub-section (2) of section 19B as may be prescribed;
(b) To publish in the newspaper at such times and such of the particulars relating to the newspaper referred to in sub section 19 B as may be specified in this behalf by the Press Registrar.
The publisher of every newspaper shall furnish to the Press Registrar such returns, statistics and other information with respect to any of the particulars referred to in sub-section (2) of section 19B as the Press Registrar may from time to time require.
The press Registrar or any gazetted officer authorised by him in writing in this behalf shall, for the purpose of the collection of any information relating to a newspaper under this Act, have access to any relevant record or document relating to the newspaper in the possession of the publisher thereof, and may enter at any reasonable time any premises where he believes such records or document to be and may inspect or take copies of the relevant records or documents or ask any question necessary for obtaining any information required to be furnished under this Act.
The press registrar shall prepare, in such form and at such time each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.
On the application of nay each year as may be prescribed, an annual report containing a summary of the information obtained by him during the previous year in respect of the newspapers in India and giving an account of the working of such newspapers, and copies thereof shall be forwarded to the Central Government.
Subject to the provisions of this Act and regulations made thereunder, the Press Registrar may delegate all or any of his powers under this Act to any officer subordinate to him.
The Press Registrar and all officers appointed under this Act shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
If the publisher of any newspaper –
(a) Refuses or neglects to comply with the provisions of section 19D or section 19E; or 1[* * *]
(b) Publishers in the newspaper in pursuance of clause (b) of section 19D any particulars relating to the newspaper which he has reason to believe to be false, he shall be punishable with fine may extend to five hundred rupees.
——————–
1. Clause (b) omitted by Act 26 of 1960, sec 7 (w.e.f. 1-10-1960).
If any person engaged in connection with the collection of information under this Act wilfully discloses any information or the contents of any return given or furnished under this Act otherwise than in the execution of his duties under this Act of for the purposes of the prosecution of an offence under this Act or under the Indian Penal Code (45 of 1860), he shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to one thousand rupees, or with both.]
1[Power of State Government to make rules. (1) The State Government may, be notification in the Official Gazette, make such rules (not inconsistent with the rules made by the Central Government under section 20A) as may be necessary or desirable for carrying out the objects of this Act.
(2) Every rule made by the State Government under this section shall be laid, as soon as may be after it is made, before the State Legislature.]
——————–
1. Subs by act 20 of 1983, sec 2 and Sch., for section 20 (w.e.f. 15-3-1984).
1[Power of Central Government to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules. -
(a) Prescribing the particulars which a declaration made and subscribed under section 5 may contain; 2[and the form and manner in which the names of the printer, publisher, owner and editor of a newspaper and the place of its printing and publication may be printed on every copy of such newspaper];
3[(b) Prescribing the manner in which copies of any declaration attested by the official seal of a Magistrate or copies of any order refusing to authenticate any declaration and to the Press Registrar;]
(c) Prescribing the manner in which copies of any newspaper may be sent to the Press Registrar under section 11B.
(d) Prescribing the manner in which a Register may be maintained under section 19B and the particulars, which it may contain;
(e) Prescribing the particulars in which an annual statement to be furnished by the publisher of a newspaper to the Press Registrar may contain;
(f) Prescribing the form and manner in which an annual statement under clause (a) of section 19D, or any returns, statistics or other information under section 19E, may be furnished to the Press Registrar;
(g) Prescribing the fees for furnishing copies of extracts from the Registrar and the manner in which such copies may be furnished;
(h) Prescribing the manner in which a certificate of registration may be issued in respect of a newspaper;
(i) Prescribing the form in which, and the time within which, annual reports may be prepared by the Press Registrar and forwarded to the Central Government.
4[(2) Every rule made under this section shall be laid as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or 5in two or more successive sessions and if, before the expiry of the session immediately following the session or the successive sessions aforesaid] both houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, 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.]
——————–
1. Ins. by Act 55 of 1955, sec 18 (w.e.f. 1-7-1956).
2. Ins. by Act 26 of 1960, sec 08 (w.e.f. 1-10-1960).
3. Subs. by Act 26 of 1960, sec 08, for clause (b) (w.e.f. 1-10-1960).
4. Subs. by Act 26 of 1960, sec. 8, for sub-section (2) (w.e.f 1-10-1960).
5. Subs. by Act 20 of 1983, sec. 2 and Sch., for certain words (w.e.f 15-3-1984).
1[Rules made under this Act may provide that contravention thereof shall be punishable. Any rule made under any provision of this Act may provide that any contravention thereof shall be punishable with fine, which may extend to one hundred rupees.]
——————–
1. Ins. by Act 26 of 1960, sec. 9 (w.e.f 1-10-1960).
1[The State Government may, by notification in the Official Gazette], exclude any class of books 2[or papers] from the operation of the whole or any part or parts of this Act:
3[Provided that no such notification in respect of any class of newspapers shall be issued without consulting the Central Government.]
——————–
1. Subs. by the A.0. 1937, for certain words.
2. Ins. by Act 11 of 1915, see.2 and Sch. 1.
3. Ins. by Act 26 of 1960, sec. 10 (w.e.f. 1-10-1960).
1[Extent. This Act extends to the whole of India 2[* * *]. ]
——————–
1. Ins. by Act 55 of 1955, sec. 19, original section 22 was rep. by Act 10 of 1890, sec. 7 (w.e.f 1-7-1956).
2. The words “except the State of Jammu and Kashmir” omitted by Act 16 of 1965, sec. 4 (w.e.f 1-1 1-1965).
[Rep. by the Repealing Act, 1870 (14 ofl870), sec. Sch., Pt and I. II.]
2(1) This Act may be called the Advocates Act, 1961.
2[(2) It extends to the whole of India]
(3) It 3[shall, in relation to the territories other than those referred to in sub-section (4) come into force] on such date 4 as the Central Government may, by notification in the Official Gazette, appoint, and different dates3 may be appointed for different provisions of this Act.
5[(4) This Act shall, in relation to the State of Jammu and Kashmir6 and the Union territory of Goa, Daman and Diu, come into force on such date7 as the Central Government may, by notification in the Official Gazette, appoint in this behalf, and different dates may be appointed for different provisions of this Act.
1. Subs, by Act 60 of 1973, sec. 2, for sub-section (2) (w.e.f. 31-1-1974).
2. The Act has been extended to The Union territory of Dadra & Nagar Haveli by Regulation 8 of 1963. The Union territory of Pondicherry by Act 26 of 1968, sec. 3 and Sch.
3. Subs, by Act 60 of 1973, sec. 2 (w.e.f. 31-1-1974).
4. The following are the Notifications by which different dates have been appointed for different provisions of this Act:-
| Notification | Date | Provisions |
| S.O. 1870, dated 7th August, 1961 | 16-08-61 | Chapters I, II and VII. |
| S.O. 2790, dated 24th November, 1961 | 01-12-61 | Chapter III and sub-section (2) of section 50. |
| S.O. 2919, dated 13th December, 1961 | 15-12-61 | Sub-section (1) of section 50. |
| S.O. 297, dated 24th January, 1962 | 24-01-62 | Section 51 and 52. |
| S.O. 958, dated 29th March, 1962 | 29-03-62 | Section 46, |
| S.O. 50, dated 4th January, 1963 | 04-01-63 | Section 32 and Chapter VI [except section 46, sub-section (1) and (2) of section 50, section 51 and 52.] |
| S.O. 2509, dated 31st August, 1963 | 01-09-63 | Chapter V |
| S.O. 63, dated 7th June 1968 in the Union territory of Pondicherry | 10-06-68 | Chapters I, II and III, section 32, Chapters IV, V, VI, VII and VIII. |
| S.O. 1500, dated 5th April, 1969 | 01-06-69 | Sections 29, 31, 33 and 34 of Chapter IV . |
| G.S.R. 84(E), dated 21st February, 1979 | 01-06-69 | in the Union territory of Goa, Daman and Diu Except section 30. |
5. Sub-section (4) ins. By Act 60 of 1973, sec, 2.
6. 1-8-1986 vide G.S.R. 1946(E), dated 15-7-1986 (except section 30) the Act is enforced in the State of Jammu and Kashmir.
7. 1-6-1979, vide G.S.R. 84(E)/1979, (except section 30) the Act is enforced in Goa, Daman and Diu.
1[(1)] In this Act, unless the context otherwise requires,
(a) “advocate” means an advocate entered in any roll under the provisions of this Act;
(b) “appointed day”, in relation to any provision of this Act, means the day on which that provision comes into force;
(c) 2[***]
(d) “Bar Council” means a Bar Council constituted under this Act;
(e) “Bar Council of India” means the Bar Council constituted under section 4 for the territories to which this Act extends;
(f) 3[***]
(g) “High Court”, except in sub-section (1) 4[and sub-section (1A)] of section 34 and in sections 42 and 43, does not include a court of the Judicial Commissioner, and, in relation to a State Bar Council, means,
(i) in the case of a Bar Council constituted for a State or for a State and one or more Union Territories, the High Court for the State;
(ii) in the case of the Bar Council constituted for Delhi, 5[the High Court of Delhi];
(h) “law graduate” means a person who has obtained a bachelor’s degree in law from any university established by law in India;
(i) “legal practitioner” means an advocate 6[or vakil] of any High Court, a pleader mukhtar or revenue agent;
(j) “prescribed” means prescribed by rules made under this Act;
(k) “roll” means a roll of advocates prepared and maintained under this Act;
(l) “State” does not include a Union Territory;
(m) “State Bar Council” means a Bar Council constituted under section 3;
(n) “State roll” means a roll of advocates prepared and maintained by a State Bar Council under section 17.
7[(2) Any reference in this Act to a law which is not in force in the State of Jammu and Kashmir or in the Union Territory of Goa, Daman and Diu, shall, in relation to that State or that territory, be construed as a reference to the corresponding law, if any, in force in that State or that Territory, as the case may be.]
1. Section 2 renumbered as sub-section (1) thereof by Act 60 of 1973, sec. 2 (w.e.f. 31-1-1974).
2. Clause (c) omitted by Act 107 of 1976, sec. 2 (w.e.f. 15-10-1976).
3. Clause (f) omitted by Act 60 of 1973 sec 3 (w.e.f. 31-01-1974.)
4. Ins. by Act 60 of 1973 sec. 3 (w.e.f. 31-1-1974.)
5. Subs. by Act 60 of 1973 sec. 3 for the High Court of Punjab (w.e.f. 31-1-1974.)
6. Subs. by Act 107 of 1976 sec. 2 for vakil or attorney (w.e.f. 15-10-1976).
7. Ins. by Act 60 of 1973 sec. 3 for vakil or attorney (w.e.f.15-10-1976.)
* Goa is now a state, see Goa, Daman and Diu Reorganisation Act, 1987 (18 of 1987),
sec. 3 (w.e.f. 30-5-1987).
| Chapter II | Bar Councils |
(1) There shall be a Bar Council—
(a) for each of States of Andhra Pradesh, Bihar, Gujarat, 1[Jammu and Kashmir], 2[Jharkhand] 3[Madhya Pradesh, Chhattisgarh], 4[***], 5[***], 6[Karnataka], Orissa, Rajasthan 7[Uttar Pradesh and Uttaranchal], to be known as the Bar Council of that State;
8[(b) for the States of Arunachal Pradesh, Assam, Manipur, Meghalaya, Mizoram, Nagaland and Tripura to be known as the Bar Council of Assam, Nagaland, Meghalaya, Manipur, Tripura, Mizoram and Arunachal Pradesh;]
(c) for the State of Kerala and 9[the Union territory of Lakshadweep], to be known as the Bar Council of Kerala;
10[(cc) for the 11[State of Tamil Nadu] and the Union territory of Pondicherry to be known as the Bar Council of Madras*;]
12[(ccc) for the States of Maharashtra and Goa, and the Union territories of Dadra and Nagar Haveli and Daman and Diu, to be known as the Bar Council of Maharashtra and Goa;]
13[(d) for the States of Punjab and Haryana, and the Union territory of Chandigarh, to be known as the Bar Council of Punjab and Haryana;
(dd) for the State of Himachal Pradesh, to be known as the Bar Council of Himachal Pradesh;]
(e) for the State of West Bengal and the 14[Union territory of Andaman and Nicobar Islands], to be known as the Bar Council of West Bengal; and
(f) for the Union territory of Delhi, to be known as the Bar Council of Delhi.
(2) A State Bar Council shall consist of the following members, namely:—
(a) in the case of the State Bar Council of Delhi, the Additional Solicitor General of India ex officio 15[in the case of the State Bar Council of Assam, Nagaland, Meghalaya, Manipur and Tripura, the Advocate General of each of the State of Assam, Manipur, Meghalaya, Nagaland and Tripura, ex officio; in the case of the State Bar Council of Punjab and Haryana, the Advocate-General of each of the State of Punjab and Haryana, ex officio;] and in the case of any other State Bar Council, the Advocate-General of the State, ex officio;
16[(b) in the case of a State Bar Council with an electorate not exceeding five thousand, fifteen members, in the case of a State Bar Council with an electorate exceeding five thousand but not exceeding ten thousand, twenty members, and in the case of the State Bar Council with an electorate exceeding ten thousand, twenty-five members, elected in accordance with the system of proportional representation by means of the single transferable vote from amongst advocates on the electoral roll of the State Bar Council:]
17[Provided that as nearly as possible one-half of such elected members shall subject to any rules that may be made in this behalf by the Bar Council of India, be persons who have for at least ten years been advocates on a State roll, and in computing the said period of ten years in relation to any such person, there shall be included any period during which the person has been an advocate enrolled under the Indian Bar Councils Act, 1926 (38 of 1926).]
18[(3) There shall be a Chairman and a Vice-Chairman of each State Bar Council elected by the Council in such manner as may be prescribed.
(3A) Every person holding office as Chairman or as Vice-Chairman of any State Bar Council immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977) shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be:
Provided that every such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of each State Bar Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.]
19[(4) An Advocate shall be disqualified from voting at an election under sub-section (2) or for being chosen as, and for being, a member of State Bar Council, unless he possesses such qualifications or satisfies such conditions as may be prescribed in this behalf by the Bar Council of India, and subject to any such rules that may be made, an electoral roll shall be prepared and revised from time to time by each State Bar Council.
(5) Nothing in the proviso to sub-section (2) shall affect the term of office of any member elected before the commencement of the Advocates (Amendment) Act, 1964 (21 of 1964), but every election after such commencement shall be held in accordance with the provisions of the rules made by the Bar Council of India to give effect to the said proviso.]
20[(6) Nothing in clause (b) of sub-section (2) shall affect the representation of elected members in any State Bar Council as constituted immediately before the commencement of the Advocates (Amendment) Act, 1973 (60 of 1973), until that State Bar Council is reconstituted in accordance with the provision of this Act.]
—————
1. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).
2. Ins. by Act 30 of 2000, sec. 28 (w.e.f. 15-11-2000).
3. Subs. by Act 28 of 2000, sec. 24, for “and Madhya Pradesh” (w.e.f. 1-11-2000).
4. The word “Madras” omitted by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 24-5-1968).
5. The word “Maharashtra” omitted by the Dadra and Nagar Haveli (Civil Courts and Miscellaneous Provisions) Regulations, 1963 (8 of 1963), sec. 12 (w.e.f. 1-7-1965).
6. Subs. by the Mysore State (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1974, for “Mysore” (w.e.f. 1-11-1973).
7. Subs. by Act 29 of 2000, sec. 29, for “and Uttar Pradesh” (w.e.f. 9-11-2000).
8. Subs. by Act 69 of 1986, sec. 19, for clause (b) (w.e.f. 24-12-1986). Earlier clause (b) was substituted by Act 81 of 1971, sec. 34(3) and by Act 34 of 1986, sec. 16.
9. Subs. by Act 34 of 1973, sec. 5, for “the Union territory of the Laccadive, Minicoy and Amindivi Islands” (w.e.f. 1-11-1973).
10. Ins. by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 26-5-1968).
11. Subs. by the Madras State (Alteration of Name) (Adaptation of Laws on Union Subjects) Order, 1970, for “State of Madras” (w.e.f. 14-1-1969). * Now Tamil Nadu.
12. Subs. by Act 18 of 1987, sec. 21, for clause (ccc) (w.e.f. 30-5-1987). Earlier clause (cc) was inserted by the Dadra and Nagar Haveli (Civil Courts and Miscellaneous Provisions) Regulations, 1963 (8 of 1963), regulation 12 and was re-lettered as clause (ccc) by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 26-5-1968) and it was amended by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).
13. Subs. by Act 53 of 1970, sec. 24, for clause (d) (w.e.f. 25-1-1971).
14. Subs. by Act 81 of 1971, sec. 34, for “Union Territories of Tripura and the Andaman and Nicobar Islands” (w.e.f. 21-1-1972).
15. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).
16. Subs. by Act 60 of 1973, sec. 4, for clause (b) (w.e.f. 31-1-1974).
17. Ins. by Act 21 of 1964, sec. 2 (w.e.f. 16-5-1964).
18. Subs. by Act 38 of 1977, sec. 2, for sub-section (3). Earlier sub-section (3) was substituted by Act 107 of 1976, sec. 3 (w.e.f. 13-9-1976).
19. Ins. by Act 21 of 1964, sec. 2 (w.e.f. 16-5-1964).
20. Ins. by Act 60 of 1973, sec. 4 (w.e.f. 31-1-1974).
(1) There shall be a Bar Council for the territories to which this Act extends to be known as the Bar Council of India which shall consist of the following members, namely:
(a) the Attorney-General of India, ex officio;
(b) the Solicitor-General of India, ex officio;
1[***]
(c) one member elected by each State Bar Council from amongst its members.
2[(1 A) No person shall be eligible for being elected as a member of the Bar Council of India unless he possesses the qualifications specified in the proviso to sub-section (2) of section 3.]
3[(2) There shall be a Chairman and a Vice-Chairman of the Bar Council of India elected by the Council in such manner as may be prescribed.
(2A) A person holding office as Chairman or as Vice-Chairman of the Bar Council of India immediately before the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), shall, on such commencement, cease to hold office as Chairman or Vice-Chairman, as the case may be :
PROVIDED that such person shall continue to carry on the duties of his office until the Chairman or the Vice-Chairman, as the case may be, of the Council, elected after the commencement of the Advocates (Amendment) Act, 1977 (38 of 1977), assumes charge of the office.]
4[(3) The term of office of a member of the Bar Council of India elected by the State Bar Council shall
(i) in the case of a member of a State Bar Council who holds office ex officio, be two years from the date of his election[or till he ceases to be a member of the State Bar Council, whichever is earlier;] and
(ii) in any other case, be for the period for which he holds office as a member of the State Bar Council:
PROVIDED that every such member shall continue to hold as a member of the Bar Council of India until his successor is elected.]
1. Clause (bb) omitted by Act 38 of 1977 sec. 3 (w.e.f. 31-10-1977).
2. Inserted by Act 60 of 1973 sec 5 (w.e.f. 31-1-1974)..
3. Substituted by Act 38 of 1977 sec 3 for sub-section (2) (w.e.f. 31-10-1979).
4. Inserted by Act 21 of 1964 sec.3
Every Bar Council shall be a body corporate having perpetual succession and a common seal, with power to acquire and hold property, both movable and immovable, and to contract, and may by the name by which it is known sue and be sued.
(1) The functions of a State Bar Council shall be
(a) to admit persons as advocates on its roll;
(b) to prepare and maintain such roll;
(c) to entertain and determine cases of misconduct against advocates on its roll;
(d) to safeguard the rights, privileges and interests of advocates on its roll;
1[(dd) to promote the growth of Bar Associations for the purposes of effective implementation of the welfare schemes referred to in clause (a) of sub-section (2) of this section and clause (a) of sub-section (2) of section 7;]
(e) to promote and support law reform;
2[(ee) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(eee) to organise legal aid to the poor in the prescribed manner;]
(f) to manage and invest the funds of the Bar Council;
(g) to provide for the election of its members;
3[(gg) to visit and inspect universities in accordance with the directions given under clause (i) of sub-section (1) of section 7;]
(h) to perform all other functions conferred on it by or under this Act; (i) to do all other things necessary for discharging the aforesaid functions.
4[(2) A State Bar Council may constitute one or more funds in the prescribed manner for the purpose of
(a) giving financial assistance to organise welfare schemes for the indigent, disabled or other advocates;
(b) giving legal aid or advice in accordance with the rules made in this behalf;
5[(c) establishing law libraries.]
6(3) A State Bar Council may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section.]
1 Inserted by Act 70 of 1993, sec. 2(i)(a).
2. Inserted by Act 60 of 1973 sec. 6 (w.e.f. 31-1-1974).
3. Substituted by Act 70 of 1993 sec. 2(i) (b).
4. Sub-section (2) and (3) subs. by Act 60 of 1973 sec.6 for sub -section (2).
5. Ins by Act 70 of 1993 sec. 2(ii)
6. Sub-sections (2) and (3) subs. by Act 60 of 1973, sec. 6, for sub-section (2) (w.e.f. 31-1-1974).
1[(1)] The functions of the Bar Council of India shall be
2[***]
(b) to lay down standards of professional conduct and etiquette for advocates;
(c) to lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State Bar Council;
(d) to safeguard the rights, privileges and interests of advocates;
(e) to promote and support law reform;
(f) to deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council;
(g) to exercise general supervision and control over State Bar Councils;
(h) to promote legal education and to lay down standards of such education in consultation with the universities in India imparting such education and the State Bar Councils;
(i) to recognise universities whose degree in law shall be a qualification for enrolment as an advocate and for that purpose to visit and inspect universities; 3[or cause the State Bar Councils to visit and inspect universities in accordance with such directions as it may give in this behalf;]
4[(ia) to conduct seminars and organise talks on legal topics by eminent jurists and publish journals and papers of legal interest;
(ib) To organise legal aid to the poor in the prescribed manner;
(ic) To recognise on a reciprocal basis foreign qualifications in law obtained outside Indian for the purpose of admission as advocate under this Act;]
(j) To manage and invest the funds of the Bar Council;
(k) To provide for the election of its members;
(l) To perform all other functions conferred on it by or under this Act;
(m) To do all other things necessary for discharging the aforesaid functions;
5[(2) The Bar Council of India may constitute one or more funds in the prescribed manner for the purpose of
(a) Giving financial assistance to organise welfare schemes for indigent, disabled or other advocates;
(b) Giving legal aid or advice in accordance with the rules made in this behalf;]
6[( c) Establishing law libraries.]
5(3) The Bar Council of India may receive any grants, donations, gifts or benefactions for all or any of the purposes specified in sub-section (2) which shall be credited to the appropriate fund or funds constituted under that sub-section].
1. Renumbered as sub-s. (1) by Act 60 of 1973
2. Inserted by Act 70 of 1993.
3. Inserted by Act 60 of 1973.
1[7A.- Membership in international bodies
The Bar Council of India may become a member of international legal bodies such as the International Bar Association or the International Legal Aid Association, contribute such sums as it thinks fit to such bodies by way of subscription or otherwise and authorise expenditure on the participation of its representatives in any international legal conference or seminar.]
1. Ins. by Act 60 of 1973 sec. 8 (w.e.f. 31-1-1974).
1[8. The term of office of an elected member of a State Bar Council.
The than an elected member thereof referred to in Section 54) shall be five years from the date of publication of the result of his election:
Provided that where a State Bar Council fails to provide for the election of its members before the expiry of the said term, the Bar Council of India may, by order for reasons to be recorded in writing, extend the said term, the Bar Council of India may, by order, for reasons to be recorded in writing, extend the said term for a period not exceeding six months.
—————
1. Section 8 subs. by Act 70 of 1993, sec. 4, for section 8 (w.e.f. 26-12-1993).
1 Constitution of Special Committee in the absence of election.
(1) Where a State Bar Council fails to provide for the election of its members before the expiry of the term of five years or the extended term, as the case may be, referred to in section 8, the Bar Council of India shall, on and from the date immediately following the day of such expiry, constitute a Special Committee consisting of
(i) the ex officio member of the State Bar Council referred to in clause (a) of sub-section (2) of section 3 to be the Chairman :
PROVIDED that where there are more than one ex officio members, the senior most amongst them shall be the Chairman; and
(ii) two members to be nominated by the Bar Council of India from amongst advocates on the electoral roll of the State Bar Council, to discharge the functions of the State Bar Council until the Bar Council is constituted under this Act.
(2) On the constitution of the Special Committee and until the State Bar Council is constituted
(a) all properties and assets vesting in the State Bar Council shall vest in the Special Committee;
(b) all rights, liabilities and obligations of the State Bar Council, whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations of the Special Committee;
(c) all proceedings pending before the State Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the Special Committee.
(3) The Special Committee constituted under sub-section (1) shall, in accordance with such directions as the Bar Council of India may give to it in this behalf, hold elections to the State Bar Council within a period of six months from the date of its constitution under sub-section (1), and where, for any reason the Special Committee is not in a position to conduct election within the said period of six months, the Bar Council of India may, for reasons to be recorded by it in writing, extend the said period.
—————
1. Section 8A subs. by Act 70 of 1993, sec. 4, for section 8 (w.e.f. 26-12-1993).
(1) A Bar Council shall constitute one or more disciplinary committees, each of which shall consist of three persons of whom two shall be persons elected by the Council from amongst its members and the other shall be a person co-opted by the Council from amongst advocates who possess the qualifications specified in the proviso to sub-section (2) of section 3 and who are not members of the Council, and the senior-most advocate amongst the members of a disciplinary committee shall be the Chairman thereof.
(2) Notwithstanding anything contained in sub-section (1), any disciplinary committee constituted prior to the commencement of the Advocates (Amendment) Act, 1964, (21 of 1964) may dispose of the proceedings pending before it as if this section had not been amended by the said Act.
1[9A. Constitution of legal aid committees
(1) A Bar Council may constitute one or more legal aid committees each of which shall consist of such number of members, not exceeding nine but not less than five, as may be prescribed.
(2) The qualifications, the method of selection and the term of office of the member of a legal aid committee shall be such as may be prescribed.]
1. Ins by Act 60 of 1973 sec. 9 (w.e.f. 31-1-1974.)
(1) A State Bar Council shall constitute the following standing committees, namely,
(a) an executive committee consisting of five members elected by the Council from amongst its members;
(b) an enrolment committee consisting of three members elected by the Council from amongst its members.
(2) The Bar Council of India shall constitute the following standing committees, namely,
(a) an executive committee consisting of nine members elected by the Council from amongst its members;
(b) a legal education committee consisting of ten members, of whom five shall be persons elected by the Council from amongst its members and five shall be persons co-opted by the Council who are not members thereof.
(3) A State Bar Council and the Bar Council of India may constitute from amongst its members such other committees as it may deem necessary for the purposes of carrying out the provisions of this Act.
1[10A. Transaction of business by Bar Councils and committees thereof
2[(1) The Bar Council of India shall meet at New Delhi or at such other place as it may, for reasons to be recorded in writing, determine.
(2) A State Bar Council shall meet at its headquarters or at such other place as it may, for reasons to be recorded in writing, determine.]
(3) The committees other than disciplinary committees constituted by the Bar Councils shall meet at the headquarters of the respective Bar Councils.
(4) Every Bar Council and every committee thereof except the disciplinary committees shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.
(5) The disciplinary committees constituted under section 9 shall meet at such times and places and shall observe such rules of procedure in regard to the transaction of business at their meetings as may be prescribed.]
1 Inserted by Act 60 of 1973 Sec. 10 (w.e.f. 31-1-1974).
2 Substituted by Act 70 of 1993. sec. 5,
1[10B.] Disqualification of members of Bar Council
An elected member of a Bar Council shall be deemed to have vacated his office if he is declared by the Bar Council of which he is a member to have been absent without sufficient excuse from three consecutive meetings of such Council, or if his name is, for any cause, removed from the roll of advocates or if he is otherwise disqualified under any rule made by the Bar Council of India.
—————
1. Section 10A renumbered as section 10B by Act 60 of 1973, sec. 10 (w.e.f. 31-1-1974).
(1) Every Bar Council shall appoint a secretary and may appoint an accountant and such number of other persons on its staff as it may deem necessary.
(2) The secretary and the accountant, if any, shall possess such qualifications as may be prescribed.
(1) Every Bar Council shall cause to be maintained such books of accounts and other books in such form and in such manner as may be prescribed.
(2) The accounts of a Bar Council shall be audited by auditors duly qualified to act as auditors of companies under the Companies Act, 1956 (1 of 1956), at such times and in such manner as may be prescribed.
1[(3) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following, a State Bar Council shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Bar Council of India and shall cause the same to be published in the Official Gazette.
(4) As soon as may be practicable at the end of each financial year, but not later than the 31st day of December of the year next following the Bar Council of India shall send a copy of its accounts together with a copy of the report of the auditors thereon to the Central Government and shall cause the same to be published in the Gazette of India.]
———
1. Sub-sections (3) and (4) subs. by Act 63 of 1973, sec. 11, for sub-section (3) (w.e.f.31-1-1974).
No act done by a Bar Council or any committee thereof shall be called in question on the ground merely of the existence of any vacancy in, or any defect in the constitution of the Council or committee, as the case may be.
No election of a member to a Bar Council shall be called in question on the ground merely that due notice thereof has not been given to any person entitled to vote thereat, if notice of the date has, not less than thirty days before that date, been published in the Official Gazette.
(1) A Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for
1(a) the election of members of the Bar Council by secret ballot including the conditions subject to which persons can exercise the right to vote by postal ballot, the preparation and revision of electoral rolls and the manner in which the results of election shall be published;
2[***]
3[(c) the manner of election of the Chairman and the Vice-Chairman of the Bar Council];
(d) the manner in which and the authority by which doubts and disputes as to the validity of an election to the Bar Council 4[or to the office of the Chairman or Vice-Chairman] shall be finally decided.
5[***]
(f) the filling of casual vacancies in the Bar Council;
(g) the powers and duties of the Chairman and the Vice-Chairman of the Bar Council;
6[(ga) the constitution of one or more funds by a Bar Council for the purpose of giving financial assistance or giving legal aid or advice referred to in sub-section (2) of section 6 and sub-section (2) of section 7;
6[***](gb) organisation of legal aid and advice to the poor, constitution and functions of committees and sub-committees for that purpose and description of proceedings in connection with which legal aid or advice may be given];
(h) the summoning and holding of meetings of the Bar Council, 7[* * *]the conduct of business thereat, and the number of members necessary to constitute a quorum;
(i) the constitution and functions of any committee of the Bar Council and the term of office of members of any such committee;
(j) the summoning and holding of meetings, the conduct of business of any such committee, and the number of members necessary to constitute a quorum;
(k) the qualifications and the conditions of service of the secretary, the accountant and other employees of the Bar Council;
(l) the maintenance of books of accounts and other books by the Bar Council;
(m) the appointment of auditors and the audit of the accounts of the Bar Council;
(n) the management and investment of the funds of the Bar Council.
(3) No rules made under this section by a State Bar Council shall have effect unless they have been approved by the Bar Council of India.
—————
1. Subs. by Act 60 of 1973, sec. 12, for clause (a) (w.e.f. 31-1-1974).
2. Clause (b) omitted by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).
3. Clause (c) ins. by Act 38 of 1977, sec. 5 (w.r.e.f. 31-10-1977).
4. Ins. by Act 38 of 1977, sec. 5 (w.r.e.f. 31-10-1977).
5. Clause (e) omitted by Act 23 of 1966, sec. 3 (w.r.e.f. 16-8-1961).
6. Ins. by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).
7. The words “the times and places where such meetings are to be held” omitted by Act 60 of 1973, sec. 12 (w.e.f. 31-1-1974).
| Chapter III | Admission And Enrolment Of Advocates |
(1) There shall be two classes of advocates, namely, senior advocates and other advocates.
(2) An advocate may, with his consent, be designated as senior advocate if the Supreme Court or a High Court is of opinion that by virtue of his ability, 1[standing at the Bar or special knowledge of experience in law] he is deserving of such distinction.
(3) Senior advocates shall, in the matter of their practice, be subject to such restrictions as the Bar Council of India may, in the interest of the legal profession, prescribe.
(4) An advocate of the Supreme Court who was a senior advocate of that court immediately before the appointed day shall, for the purposes of this section, be deemed to be a senior advocate :
2[PROVIDED that where any such senior advocate makes an application before the 31st December, 1965 to the Bar Council maintaining the roll in which his name has been entered that he does not desire to continue as a senior advocate, the Bar Council may grant the application and the roll shall be altered accordingly].
1 Substituted by Act 60 of 1993 for words “experience and standing at the Bar”.
2 Added by Act 21 of 1964.
(1) Every State Bar Council, shall prepare and maintain a roll of advocates in which shall be entered the names and addresses of
(a) all persons who were entered as advocates on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), immediately before the appointed day 1[including persons, being citizens of India, who before the 15th day of August, 1947, were enrolled as advocates under the said Act in any area which before the said date was comprised within India as defined in the Government of India Act, 1935, and who at any time] express an intention in the prescribed manner to practise within the jurisdiction of the Bar Council;
(b) all other persons who are admitted to be advocates on the roll of the State Bar Council under this Act on or after the appointed day.
(2) Each such roll of advocates shall consist of two parts, the first part containing the names of senior advocates and the second part, the names of other advocates.
(3) Entries in each part of the roll of advocates prepared and maintained by a State Bar Council under this section shall be in the order of seniority, 2[and, subject to any rule that may be made by the Bar Council of India in this behalf, such seniority shall be determined] as follows:
(a) the seniority of an advocate referred to in clause (a) of sub-section (1) shall be determined in accordance with his date of enrolment under the Indian Bar Council Act, 1926 (38 of 1926);
(b) the seniority of any person who was a senior advocate of the Supreme Court immediately before the appointed day shall, for the purposes of the first part of the State roll, be determined in accordance with such principles as the Bar Council of India may specify;
3[***]
(d) the seniority of any other person who, on or after the appointed day, is enrolled as a senior advocate or is admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be;
4[(e) notwithstanding anything contained in clause (a), the seniority of an attorney enrolled whether before or after the commencement of the Advocates (Amendment) Act, 1980 as an advocate shall be determined in accordance with the date of his enrolment as an attorney.]
(4) No person shall be enrolled as an advocate on the roll of more than one State Bar Council.
1. Substituted by Act 60 of 1973 for words “and who within the prescribed time”.
2. Substituted by Act 21 of 1964 for words “and, such seniority shall be determined”.
3. Clause (c) omitted by Act 60 of 1973, sec. 14 (w.e.f. 31-1-1974).
4. Inserted by Act 47 of 1980.
(1) Notwithstanding anything contained in section 17, any person whose name is entered as an advocate on the roll of any State Bar Council may make an application in the prescribed form to the Bar Council of India for the transfer of his name from the roll of that State Bar Council to the roll of any other State Bar Council and, on receipt of any such application the Bar Council of India shall direct that the name of such person shall, without the payment of any fee, be removed from the roll of the first mentioned State Bar Council and entered in the roll of the other State Bar Council and the State Bar Councils concerned shall comply with such direction
1[PROVIDEO that where any such application for transfer is made by a person against whom any disciplinary proceeding is pending or where for any other reason it appears to the Bar Council of India that the application for transfer has not been made bona fide and that the transfer should not be made, the Bar Council of India may, after giving the person making the application an opportunity of making a representation in this behalf, reject the application].
(2) For the removal of doubts it is hereby declared that where on an application made by an advocate under sub-section (1), his name is transferred from the roll of one State Bar Council to that of another, he shall retain the same seniority in the latter roll to which he was entitled in the former roll.
1. Added by Act 21 of 1964.
Every State Bar Council shall send to the Bar Council of India an authenticated copy of the roll of advocates prepared by it for the first time under this Act and shall thereafter communicate to the Bar Council of India all alterations in, the addition to, any such roll, as soon as the same have been made.
1[20. Special provision for enrolment of certain Supreme Court advocates
(1) Notwithstanding anything contained in this chapter, every advocate who is entitled as of right to practise in the Supreme Court immediately before the appointed day and whose name is not entered in any State roll may, within the prescribed time, express his intention in the prescribed form to the Bar Council of India for the entry of his name in the roll of a State Bar Council and on receipt thereof the Bar Council of India shall direct that the name of such advocate shall, without payment of any fee, be entered in the roll of that State Bar Council, and the State Bar Council concerned shall comply with such direction.
(2) Any entry in the State roll made in compliance with the direction of the Bar Council of India under sub-section (1) shall be made in the order of seniority determined in accordance with the provisions of sub-section (3) of section 17.
(3) Where an advocate referred to in sub-section (1) omits or fails to express his intention within the prescribed time, his name shall be entered in the roll of the State Bar Council of Delhi].
1. Subs. by Act 60 of 1973 sec. 15 for section 20 (w.e.f. 31-1-1974).
(1) Where the date of seniority of two or more persons is the same, the one senior in age shall be reckoned as senior to the other.
1[(2) Subject as aforesaid, if any dispute arises with respect to the seniority of any person, it shall be referred to the State Bar Council concerned for decision.]
—————
1. Subs. by Act 60 of 1973, sec. 16, for sub-section (2) (w.e.f. 31-1-1974).
1[22. Certificate of enrolment,
(1) There shall be issued a certificate of enrolment in the prescribed form by the State Bar Council of every person whose name is entered in the roll of advocates maintained by it under this Act.
(2) Every person whose name is so entered in the State roll shall notify any change in the place of his permanent residence to the State Bar Council concerned within ninety days of such change.]
1. Section 17 subs. By Act No. 60 of 1973 sec. 22 (w.e.f. 31-1-1974).
(1) The Attorney General of India shall have pre-audience over all other advocates.
(2) Subject to the provisions of sub-section (1), the Solicitor-General of India shall have pre-audience over all other advocates.
(3) Subject to the provisions of sub-sections (1) and (2), the Additional Solicitor-General of India shall have pre-audience over all other advocates.
1[(3A) Subject to the provisions of sub-sections (1), (2) and (3), the second Additional Solicitor-General of India shall have pre-audience over all other advocates.]
(4) Subject to the provisions of sub-section (1), 2[(2), (3) and (3A)] the Advocate General of any State shall have pre-audience over all other advocates, and, the right of pre-audience among Advocates-General inter se shall be determined by their respective seniority.
(5) Subject as aforesaid
(i) Senior advocates shall have pre-audience over other advocates; and
(ii) The right of pre-audience over senior advocates inter se and other advocates inter se shall be determined by their respective seniority.
1. Ins. By Act No. 47 of 1980 sec. 3 (w.e.f. 29-11-1980).
2. Subs. by Act 47 of 1980 for the brackets, figures and words “(2) and (3)”.
(1) Subject to the provisions of this Act, and the rules made there under, a person shall be qualified to be admitted as an advocate on a State roll, if he fulfills the following conditions, namely:
(a) He is a citizen of India:
Provided that subject to the other provisions contained in this Act, a national of any other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted to practise law in that other country;
(b) He has completed the age of twenty-one years;
(c) He has obtained a degree in law
(i) Before the 1[12th day of March, 19671 from any University, in the territory of India; or
(ii) Before the 15th of August, 1947, from any University in any area which was comprised before that date within India as defined by the Government of India Act, 1935; or
2[(iii) After the 12th day of March, 1967, save as provided in sub-clause (iii) After undergoing a three years course of study in law from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or
(iiia) After undergoing a course of study in law, the duration of which is not less than two academic years commencing from the academic year 1967-68 or any earlier academic year from any University in India which is recognised for the purposes of this Act by the Bar Council of India; or]
3(iv) In any other case, from any University outside the territory of India, if the degree is recognised ‘for the purpose of this Act by the Bar Council of India] or;
4[He is a barrister and is called to the Bar on or before the 31st day of December, 1976 5[or has passed the articled clerks’ examination or any other examination specified by the High Court at Bombay or Calcutta for enrolment as an attorney of that High Court;] or has obtained such other foreign qualification in law as is recognised by the Bar Council of India for the purpose of admission as an advocate under this Act]:
6[(d) * * *]
(e) He fulfills such other conditions as may be specified in the rules made the State bar Council under this Chapter;
7[(f) He has paid, in respect of the enrolment, stamp duty, if any, chargeable under the Indian Stamp Act 1899, and an enrolment fee payable to the State Bar Council of 8[six hundred rupees and to the Bar Council of India, one hundred and fifty rupees by way of a bank draft drawn in favour of that Council]:
Provided that where such person is a member of the Scheduled Castes or the Scheduled Tribes and produces a certificate to the effect from such authority as may be -scribed, the enrolment fee payable by him to the State Bar Council shall be9[one hundred rupees and to the Bar Council of India, twenty-five rupees].
10[Explanation -For the purposes of this sub-section, a person shall be deemed to have obtained a degree in law from a University in India on the date on which the results of the examination for that degree are published by the University on its notice-board or otherwise declaring him to have passed that examination].
(2) Notwithstanding anything contained in subsection (1) 11[a vakil or a pleader who is a law graduate] may be admitted as an advocate on a State roll, if he
(a) Makes an application for such enrolment in accordance with the revisions of this Act, not later than two years from the appointed, day, and
(b) Fulfills the conditions specified in clauses (a), (b) and (f) of subsection (1)
12[(3) Notwithstanding anything contained in subsection (1) a person who
(a) 13[* * *] has, for at least three years, been a vakil or a pleader or a mukhtar or was entitled at any time to be enrolled under any law 13[* * *] as an advocate of a High Court (including a High Court of a former Part B State) or of a Court of Judicial Commissioner in any Union territory; or
14[(aa) Before the 1st day of December, 1961, was entitled otherwise than as an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law, or who would have been so entitled had he not been in public service on the said date; or]
15[(b) * * *]
(c) Before the 1st day of April, 1937, has been an advocate of any High Court in any area which was comprised within Burma as defined in the Government of India Act, 1935-, or
(d) Is entitled to be enrolled as an advocate under any rule made by the Bar Council of India in this behalf, may be admitted as an advocate on a State roll if he
(i) Makes an application for such enrolment in accordance with the provisions of this Act; and
(ii) Fulfills the conditions specified in clauses (a), (b), (e) and (f) of sub-section
16[(4) * * *]
1. Subs. by Act 60 of 1973 sec. 18 for 28th day of February 1963 (w.e.f. 31-1-1974).
2. Subs. By Act No. 60 of 1973 sec 18 for clause (iii) (w.e.f. 31-1-1974).
3. Ins by act 21 of 1964 sec. 13.
4. Subs. by Act 60 of 1973 sec. 18 for he is a barrister (w.e.f. 31-1-1974).
5. Ins. By Act No. 107 of 1976 sec. 6 (w.e.f. 15-10-1976).
6. Clause (d) omitted by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).
7. Clause (f) subs. by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).
8. Subs. By Act No. 70 of 1993 sec 6.
9. Subs. By Act No. 70 of 1993 sec 6.
10. Ins. By Act No. 14 of 1962 sec. 2
11. Subs by Act 21 of 1964 sec. 13 for certain words.
12. Sub-section (3) and (4) ins. by Act 21 of 1964 sec. 13.
13. The words before the 31st day of March 1964 and then in force omitted by act 33 of 1968 sec. 2 (w.e.f. 5-6-1968).
14. Sub-clause (aa) ins by act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).
15. Sub clause (b) omitted by Act 60 of 1973 sec. 18 (w.e.f. 31-1-1974).
16. Sub-section (4) omitted by Act 107 of 1976 sec. 6.
124A. Disqualification for enrolment
(1) No person shall be admitted as an advocate on a State roll
(a) If he is convicted of an offence involving moral turpitude.
(b) If he is convicted of an offence under the provision s of the Untouchables (Offences) Act, 1955.
2(c) (Note:- Ins. by Act 70 of 1993, sec.7) If he is dismissed or removed from employment or office under the State or any charge involving moral turpitude.
Explanation- In this clause, the expression “State” shall have the meaning assigned to it under article 12 of the Constitution.
Provided that the disqualification for enrolment as aforesaid shall cease to have effect after a period of two years has elapsed since his 3release or dismissal or, as the case may be, removal.
(2) Nothing contained in sub-section (1) shall apply to a person who having been found guilty is dealt with under the provision of the Probation of Offenders Act, 1958 (20 of 1958).
—————
1. Ins. by Act 60 of 1973, sec. 19 (w.e.f. 31-1-1974).
2. Ins. by Act 70 of 1993, sec. 7(i) (w.e.f. 26-12-1993).
3. Subs. by Act 70 of 1993, sec. 7(ii), for “release” (w.e.f. 26-12-1993).
An application for admission as an advocate shall be made in the prescribed form to the State Bar Council within whose jurisdiction the applicant proposes to practise.
(1) State Bar Council shall refer every application for admission as an advocate to its enrolment committee, and subject to the provisions of sub-section (2) and (3),1[and to any direction that may be given in writing by the State Bar Council in this behalf] such committee shall dispose of the application in the prescribed manner:
2[Provided that the Bar Council of India may, if satisfied, either on a reference made to it in this behalf or otherwise, that any person has got his name entered on the roll of advocates by misrepresentation as to an essential fact or by fraud or undue influence, remove the name of such person from the roll of advocates after giving him an opportunity of being heard.]
(2) Where the enrolment committee of State Bar Council proposes to refuse any such application, it shall refer the application for opinion to the Bar Council of India and every such reference shall be accompanied by a statement of the grounds in support of the refusal of the application.
(3) The enrolment committee of State Bar Council shall dispose of any application referred to the Bar Council of India under sub-section (2) in conformity with the opinion of the Bar Council of India.
1[(4) Where the enrolment committee of a State Bar Council has refused any application for admission as an advocate on its roll, the State Bar Council shall as soon as may be, send intimation to all other State Bar Councils about such refusal stating the name, address and qualifications of the person whose application was refused and the grounds for the refusal.]
1. Ins. By Act 21 No. of 1964 sec. 14
2. Added by Act No.21 of l964. sec. 14
1[26A. Power to remove names from roll.
-A State Bar Council may remove from the State roll the name of any advocate who is dead or from whom a request has been received to that effect.]
1. Subs. by Act No. 60 of 1973 sec 20 for section 26A (w.e.f. 31-1-1974
Where a State Bar Council has refused the application of any person for admission as an advocate on its roll, no other State Bar Council shall entertain an application for admission of such person as an advocate on its roll, except with the previous consent in writing of the State Bar Council which refused the application and of the Bar Council of India.
(1) A State Bar Council may make rules to carry out the purposes of this Chapter.
(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for
1[(a) The time within which and form in which an advocate shall express his intention for the entry of his name in the roll of a State bar Council under Section 20;]
2[(b) * * *]
(c) The form in which an application shall be made to the Bar Council for admission as an advocate on its roll and the manner in which such application shall be disposed of by the enrolment committee of the Bar Council;
(d) The conditions subject to which a person may be admitted as an advocate on any such roll:
(e) The instilments in which the enrolment fee may be paid.
(3) No rules made under this Chapter shall have effect unless the Bar Council of India has approved them.
1. Clause (a) subs. by Act No. 60 of 1973 sec 21.
2. Clause (b) Omitted by Act No. 60 of 1973 sec. 21 (w.e.f. 31-1-1974)
| Chapter IV | Right to practice |
Subject to the provisions of this Act and any rules made thereunder, there shall, as from the appointed day, be only one class of persons entitled to practise the profession of law, namely, advocates.
Subject to provisions of this Act, every advocate whose name is entered in the 1[State roll] shall be entitled as of right to practise throughout the territories to which this Act extends,
(i) In all Courts including the Supreme Court;
(ii) Before any tribunal or person legally authorised to take evidence; and
(iii) Before any other authority or person before whom such advocate is by or under any law for the time being in force entitled to practice.
—————
1. Subs. by Act 60 of 1973, sec. 22, for “common roll” (w.e.f. 31-1-1974).
Omitted by the advocates (amendment) act 1976 (107 of 1976) sec. 7.
Notwithstanding anything contained in this chapter, any court, authority or perse may permit any person, not enrolled as an advocate under this Act, to appear before or him in any particular case
Except as otherwise provided in this Act or in any other law for the time being in force, no person shall, on or after the appointed day, be entitled to practise in any court or before any authority or person unless he is enrolled as an advocate under this Act
(1) The High Court may make rules laying down the conditions subject to which an advocate shall be permitted to practise in the High Court and the courts subordinate thereto.
1[(1A) The High Court shall make rules for fixing and regulating by taxation or otherwise the fees payable as costs by any party in respect of the fees of his adversary’s advocate upon all proceedings in the High Court or in any Court subordinate thereto.
2[(2) Without prejudice to the provisions contained in sub-section (1), the High Court at Calcutta may make rules providing for the holding of the Intermediate and the Final examinations for articled clerks to be passed by the persons referred to in Section 58 AG for the purpose of being admitted as advocates on the State roll and any other matter connected therewith.]
3[(3) * * *]
1. Ins. By Act No. 60 of 1973 sec 23 (w.e.f. 31-1-1974).
2. Omitted by act 107 of 1976 sec. 8 (w.e.f. 1-1-1977 and again ins. by Act No. 38 of 1977 sec 6 (w.e.f. 31-10-1977.
3. Omitted by Act No. 107 of 1976 sec 8 (w.e.f. 1-1-1977.
| Chapter V | Conduct of advocates |
(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate its roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
1[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested, withdraw a proceeding pending before its disciplinary committee mid direct the inquiry to be made by any other disciplinary committee of that State Bar Council;]
(2) The disciplinary committee of a State Council 2[***] shall fix a date for the hearing of the case and shall cause a notice thereof to be given to the advocate concerned and to the Advocate General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an opportunity of being heard, may make any of the following orders, namely: –
(a) Dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that the proceedings be filed;
(b) Reprimand the advocate;
(c). Suspend the advocate from practice for such period as it may deemed fit;
(d) Remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause(c) of subsection (3) he shall, during the period of suspension, be debarred from practicing in any court or before any authority or person in India.
(5) Where any notice is issued to the Advocate-General under subsection (2), the Advocate-General may appear before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his behalf.
3[Explanation. -In this section 4[Section 37 and Section 38] the expression Advocate General’ and ‘Advocate-General of the State’ shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General of India].
1. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).
2. The words “, if it does not summarily reject the complaint,” omitted by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974)
3. Ins. by Act 21 of 1964, sec. 17 (w.e.f. 16-5-1964).
4. Ins. by Act 60 of 1973, sec. 24 (w.e.f. 31-1-1974).
(1) Where on receipt of a complaint or otherwise the Bar Council of India has reason to believe that any advocate1[***] whose name is not entered on any State roll has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
(2) Notwithstanding anything contained in this Chapter the disciplinary committee of the Bar Council of India may,
2[either of its own motion or on a report by any State Bar Council or an application made to it by any person interested], withdraw for inquiry before itself any proceedings for disciplinary action against any advocate pending before the disciplinary committee of any State Bar Council and dispose of the same.
(3) The disciplinary committee of the Bar Council of India disposing of any case under this section, shall observe, so far as may be, the procedure laid down in Section 35, the references to the Advocate-General in that section being construed as references to the Attorney-General of India.
(4) In disposing of any proceedings under this section the disciplinary committee of’ the Bar Council of India may make any order which the disciplinary committee of a State Bar Council can make under sub-section (3) of Section 35, and where any proceedings have been withdrawn for inquiry 3before the disciplinary committee of the Bar Council of India the State Bar Council concerned shall give effect to any such order.
1. The words “on the common roll” omitted by Act 60 of 1973, sec. 25 (w.e.f. 31-1-1974).
2. Subs. by Act 60 of 1973, sec. 25, for “of its own motion” (w.e.f. 31-1-1974).
3. Subs. by Act 60 of 1973, sec. 25, for “before the Bar Council of India” (w.e.f. 31-1-1974).
1[36A. Changes in constitution of disciplinary committees.
Whenever in respect of any proceedings under Section 35 or Section 36, a disciplinary committee of the State Bar Council or a disciplinary committee of the Bar Council of India cease to exercise jurisdiction and is succeeded by another committee which has and exercises jurisdiction, the disciplinary committee of the State Bar Council or the disciplinary committee of the Bar Council of India, as the case may be, so succeeding may continue the proceedings from the stage at which the proceedings were so left by its predecessor committee.
1. Ins. By Act 60 No. of 1973 sec. 26 (w.e.f. 31-1-1974.
1 Disposal of disciplinary proceedings
(1) The disciplinary committee of a State Bar Council shall dispose of the complaint received by it under Section 35 expeditiously and in each case the proceedings shall be concluded within a period of one year from the date of the receipt of the complaint or the date of initiation of the proceedings at the instance of the State Bar Council, as the case may be, failing which such proceedings shall stand transferred to the Bar Council of India which may dispose of the same as if it were a proceeding withdrawn for inquiry under sub-section (2) of Section 36.
(2) Notwithstanding anything contained in sub-section (1), where on the commencement of the Advocates (Amendment) Act” 1973, any proceedings in respect of any disciplinary matter against an advocate is pending before the disciplinary committee of a State Bar Council, that disciplinary committee of the State bar Council shall dispose of the same within a period of six months from the date of such commencement or within a period of one year from the date of the receipt of the complaint or, as the case may be, the date of initiation of the proceedings at the instance of the State Bar Council, whichever is later, failing which such other proceedings shall stand transferred to the Bar Council of India for disposal under sub-section (1).]
—————
1. Ins. by Act 60 of 1973, sec. 26 (w.e.f. 31-1-1974).
(1) Any person aggrieved by in order of the disciplinary committee of a State Bar Council made 1[under Section 35] 2[or the Advocate-General of the State] may, within sixty days of the date of the communication of the order to him, prefer an appeal to the Bar Council of India.
(2) Every such appeal shall be heard by the disciplinary committee of the Bar Council of India which may pass such order 2[including an order varying the punishment awarded by the disciplinary committee of the State Bar Council] thereon as it deems fit.
2[Provided that no order of the disciplinary committee of the State Bar Council shall be varied by the disciplinary committee of the Bar Council of India so as to prejudicially affect the person aggrieved without giving him reasonable opportunity of being heard.]
1. Subs. By Act No. 21 Of 1964, for the words ‘under subsection (3) of Section 35.
2. Ins. by Act No. 60 of 1973.
Any person aggrieved by an order made by’ the disciplinary committee of the Bar Council of India under Section 36 or Section 37 1[or the Attorney-General of India or the Advocate-General of the State concerned as the case may be], within sixty days of the date on which the order is communicated to him, prefer an appeal to the Supreme Court and the Supreme Court may pass such order 1[including an order varying the punishment awarded by the disciplinary committee of the Bar Council of India] thereon as it deems fit:
1[Provided that no order of the disciplinary committee of the Bar Council of India shall be varied by the Supreme Court so as to prejudicially affect the person aggrieved without giving him a reasonable opportunity of being heard.]
1. Ins. by Act No. 60 of 1973.
1[39. Application of Sections 5 and 12 of Limitation Act, 1963.
The provisions of Sections 5 and 12 of the Limitation Act, 1963, shall, so far as may be, apply to appeals under Section 37 and Section 38.]
1. Subs. by Act 60 of 1973 sec. 29 (w.e.f. 31-1-1974.)
1 [(1)] An appeal, made under Section 37 or Section 38, shall not operate as a stay of the order appealed against, but the disciplinary committee of tire Bar Council of India or the Supreme Court, as the case may be, (c) may for sufficient cause direct the stay of such order on such terms and conditions as it may deem fit.
1[(2) Where an application is made for the stay of the order before the expiration of the time allowed for appealing there from under Section 37 or Section 38, the disciplinary committee of the State Bar Council, or the disciplinary committee of the Bar Council of India, as the case may be, may, for sufficient cause, direct the stay of such order on such terms and conditions as it may deem fit.]
1. Sec. 40 renumbered as sub-s. (1) thereof and sub-s. (2) inserted by Act 60 of 1973 sec. 30.
(1) Where an order is made under this Chapter reprimanding or suspending an advocate, a record of the punishment shall be entered against his name
(a) In the case of an advocate whose name is entered in a State roll, in that roll
1[(b) * * * ]
Anywhere any order is made removing an advocate from practice his name shall be struck off the State roll 2[***].
1[(2) * * *]
(3) Where any advocate is suspended or removed from practice, the certificate granted to him under Section 22, in respect of his enrolment shall be recalled.
1. Omitted by Act No. 60 of 1973.
2. Words “or the common roll, as the cases may be” omitted by Act 60 of 1973.
(1) The disciplinary committee of the Bar Council shall have the same powers as are vested in a civil court under the Code of Civil Procedure, 1908 (5 of 1908), in respect of the following matters, namely:
(a) Summoning and enforcing the attendance of any person and examining him on oath;
(b) Requiring discovery and production of any documents;
(c) Receiving evidence on affidavit;
(d) Requisitioning any public record or copies thereof from any court or office;
(e) Issuing commissions for the examination of witness or documents;
(f) Any other matter, which may be prescribed:
Provided that no such disciplinary committee shall have the right to require the attendance of
(a) Any presiding officer of a court except with the previous sanction of the High Court to which court is subordinate;
(b) Any officer of a revenue court except with the previous sanction of the State Government.
(2) All proceedings before a disciplinary committee of a Bar Council shall be deemed to be judicial proceedings within the meaning (.if Sections 193 and 228 of the Indian Penal Code, 1860 (45 of 1960), and every such disciplinary committee shall be deemed to be a civil court for the purpose of Sections 480, 482and 485 of Code of Criminal Procedure, 1898 (5 of 1898).
(3) For the purpose of exercising any of the powers conferred by subsection (1), a disciplinary committee may send to any civil court in the territories to which this Act extends, any summons or other process, for the attendance of a witness or the production of a document required by the committee or any commission which it desires to issue, and civil court shall cause such process to be served or such commission to be issued as the case may be, and may enforce any such process as if it were a process for attendance or production before itself.
1[(4) Notwithstanding the absence of the Chairman or any member’ of a disciplinary committee on a date fixed for the hearing of a case before it, the disciplinary committee may, if it so thinks fit, hold or continue the proceedings on the date so fixed and no such proceedings and no order made by the disciplinary committee in any such proceedings shall be invalid merely by reason of the absence of the Chairman or member thereof on any such date:
Provided that no final orders of the nature referred to in sub-section (3) of Section 35 can be made in any proceedings unless the Chairman and other members of the disciplinary committee are present.
2(5) Where no final order of the nature referred to in subsection (3) of Section 35 can be made in any proceedings in accordance with the opinion of the Chairman and the members of a disciplinary committee either for want of majority opinion amongst themselves or otherwise, the case, with their opinion thereon, shall be laid before the Chairman of the Bar Council concerned or if the Chairman of’ the Bar Council is acting as the Chairman or a member of the disciplinary committee, before the Vice-Chairman of the Bar Council, and the said Chairman or the Vice-Chairman of the Bar Council, as the case may be, after such hearing as he thinks fit, shall deliver his opinion and the final order of the disciplinary committee shall follow such opinion.]
1. See now the Code of Criminal Procedure, 1973 (Act 2 of 1974), sections 345 (1), 346 and 349.
2. Ins. by Act 60 of 1973, sec. 32 (w.e.f. 31-1-1974).
1[42A. Power of Bar Council of India and other committees.
The provisions of Section 42, shall so far as may be, apply in relation to tie Bar Council of India, the enrolment committee, the election committee., the legal aid committee, or any other committee of a Bar Council as they apply in relation to the disciplinary committee of a Bar Council.]
1. Ins. By Act No. 60 of 1973 sec. 33 (w.e.f. 31-1-1974).
The disciplinary committee to a Bar Council may, make such order as to the cost of any proceedings before it as it may deem fit and any such order shall be executable as if it were an order
(a) in the case of an order of the disciplinary committee of the Bar Council of India, of the Supreme Court;
(b) in the case of an order of the disciplinary committee of a State Bar Council, of the High Court.
The disciplinary committee of a Bar Council may of its own motion or otherwise review any order 1[(within sixty days of the date of that order] passed by it under this Chapter:
PROVIDED that no such order of review of the disciplinary committee of a State Bar Council shall have effect unless it has been approved by the Bar Council of India.
—————
1. Ins. by Act 60 of 1973, sec. 34 (w.e.f. 31-1-1974).
| Chapter VI | Miscellaneous |
Any person who practises in any court or before any authority or person, in or before whom he is not entitled to practise under the provisions of this Act, shall be punishable with imprisonment for a term which may extend to six months.
146. Payment of part of enrolment fees to the Bar Council of India
[Omitted by Act 70 of 1993]
——–
1. Earlier section 46 was substituted by Act 107 of 1976, sec. 9 (w.e.f. 15-10-1976).
46A. Financial assistance to State Bar Council.
1[46A. Financial assistance to State Bar Council.
The Bar Council of India may, if it is satisfied that any State Bar Council is in need of funds for the purpose of performing its functions under this Act, give such financial assistance as it deems fit to that Bar Council by way of grant or otherwise.]
1. Ins. By Act No. 60 of 1973 sec. 35 (w.e.f. 31-1-1974).
(1) Where any country, specified by the Central Government in this behalf by noti fication in the Official Gazette, prevents citizens of India from practising the profession of law or subjects them to unfair discrimination in that country, no subject of any such country shall be entitled to practise the profession of law in India.
(2) Subject to the provisions of sub-section (1), the Bar Council of India may prescribe the conditions, if any, subject to which foreign qualifications in law obtained by persons other than citizens of India shall be recognised for the purpose of admission as an advocate under this Act.
No suit or other legal proceeding shall lie against any Bar Council or any committee thereof or a member of a Bar Council 1[or any Committee thereof for any act in good faith done or intended to he done in pursuance of the provisions of this Act or of any rules made there under.
—————
1. Ins. by Act 60 of 1973, sec. 36 (w.e.f. 31-1-1974).
1[48A.Power of revision.
(1) The Bar Council of India may, at any time, call for the record of any proceeding under this Act which has been disposed of by a State Bar Council or a Committee thereof, and from which no appeal lies, for the purpose of satisfying itself as to the legality or propriety of such disposal it may pass such orders in relation thereto as it may think fit.
(2) No order, which prejudicially affects any person, shall be passed under this section without giving him a reasonable opportunity of being heard.]
1. Ins. By Act No. 21 of 1964 sec. 19.
1[48AA. Review.
The Bar Council of India or any of its committees. Other than its disciplinary committee, may of its own motion or otherwise review any order, within sixty days of the date of that order, passed by it under this Act.]
1. Ins. By Act No. 60 of 1973 sec. 37 (w.e.f. 31-1-1974).
1[48B.Power to give directions.
(1) For the proper and efficient discharge of the functions of a State Bar Council or any Committee thereof, the Bar Council of India may, in the exercise of its powers of general supervision and control, give such directions to the State Bar Council or any committee thereof as may appear to it to be necessary, and the State Bar Council or the committee shall comply with, such directions.
(2) Where a State Bar Council is unable to perform its functions for any reason whatsoever, the Bar Council of India may, without prejudice to the generality of the foregoing power, give such directions to the ex officio member thereof as may appear to it to be necessary, and such directions shall have effect notwithstanding anything contained in the rules made by the State Bar Council.]
1. Ins. By Act No. 21 of 1968 sec 19.
1[(1)] The Bar Council of India may make rules for discharging its functions under this Act and particular, such rules may prescribe.]
2[(a) the conditions subject to which an advocate may he entitled to vote at an election to the State Bar Council, including the qualifications or disqualifications of voters, and the matter in which an electoral roll of voters may be prepared and revised by a State Bar Council;
(ab) Qualifications for membership of a Bar Council and the disqualifications for such membership;
(ac) the time within which and the manner in which effect may be given to the proviso to sub-section (2) of Section 3;
(ad) The manner in which the name of any advocate may be prevented from being entered in more than one State roll; (ae) The manner in which the seniority among advocates may be determined;
3(af) The minimum qualifications required for admission to a course of degree in law in any recognised University;]
(ag) The class or category of persons entitled to be enrolled as advocates;
(ah) The conditions subject to which an advocate shall have the right to practise and the circumstances under which a person shall be deemed to practise as an advocate in a court;]
(b) The form in which an application shall be made for the transfer of the names of advocates from one State roll to another;
(c) The standards of professional conduct and etiquette to be observed by advocates;
(d) The standards of legal education to be observed by university in India and the inspection of Universities for that purpose;
(e) The foreign qualifications in law obtained by person other than citizens of India, which shall be recognised for the purpose of admission as an advocate under this Act;
(f) The procedure to be followed by the disciplinary committee of State Bar Council and by its own disciplinary committee;
(g) The restrictions in the matter of practice to which senior advocates shall be subject;
4[(gg) The form of dresses or robes to be worn by advocates, having regard to the climatic conditions, appearing before any court or tribunal];
(h) The fees, which may be levied in respect of any matter under this Act;
2[(i) general principles for guidance of State Bar Councils and the manner in which directions issued or orders made by the Bar Councils of India may be enforced;]
(j) Any other matter, which may be prescribed:
3[Provided that no rules made with reference to clause (c) or clause (gg) shall have effect unless they have approved by the Chief Justice of India]:
1 [Provided further that] no rules made with reference to clause (e) shall have effect unless they have been approved by the Central Government.
3[(2) Notwithstanding anything contained in the first proviso to sub-section (1), any Rule made with reference to clause (c ) or clause (gg) of the said sub-section and in force immediately before commencement of the Advocates (Amendment) Act, 1973, shall continue in force until altered or amended in accordance with the provisions if this Act ]
1. Section 49 renumbered as sub-section (1) by Act No. 60 of 1973, and sub-section (2) added.
2. Sub. by Act No. 21 of 1964.
3. Subs. by Act No. 60 of 1973.
4. Subs. by Act No. 60 of 1973, for words “Provided that”.
49A. Power of central government to make rules.
1[49A. Power of central government to make rules.
(1) The Central Government may, by notification in the official Gazette, make for carrying out the purposes of this Act including rules with respect to any matter for which the Bar Council of India or State Bar Council has power to make rules.
(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for.
(a) Qualification of membership of Bar Council and disqualifications for such membership;
(b) The manner in which the Bar Council of India may exercise supervision and control over state Bar Council and the manner in which the directions issued or orders made by the Bar Council of India may be enforced;
(c) The class or category of persons entitled to be enrolled as advocates under this Act;
(d) The category of persons who may be exempted from undergoing a course of training and passing an examination prescribed under clause (d) of sub-section (1) of Section24;
(e) The manner in which seniority among advocates may be determined;
(f) The procedure to be followed by a disciplinary committee of a Bar Council in hearing cases and the procedure to be followed by a disciplinary committee of the Bar Council of India in hearing appeals;
(g) Any other matter, which may be prescribed.
(3) Rules under this section may be made either for the whole of India or for all or any of the Bar Councils.
(4) If any provision of a rule made by a bar Council is repugnant to nay provision of a rule made by the Central Government under this section, then, the rule under this section, whether made before or after the rule made by the Bar Council shall prevail and the rule made by the Bar Council shall, to the extent of the repugnancy, be void.
2[(5) Every rule made under this section shall be laid, as soon as may be after it is made, before each House of Parliament, while it is session for a total period of thirty days Which may be comprised in one session or in two or more successive sessions and if, before the expiry of the sessions immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, 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].
2. Subs. by Act No. 60 of 1973 sec. 39 (w.e.f. 31-1-1974. 50. Repeal of certain enactments.
(1) On the date on which a State Bar Council is constituted under this Act, the provisions of Sections 3 to 7 (inclusive), sub-sections (1), (2) and (3) of Section 15 and Section 20 of the Indian Bar Council Act, 1926 (38 of 1926), shall stand repealed in the territory for which the State Bar Council is constituted.
(2) On the date on which Chapter III comes into force, the following shall stand repealed namely.
(a) Sections 6, 7, 18, and 37 of the Legal Practitioners Act, 1879 (18 of 1879) and so much of Sections 8, 9, 16, 17, 19 and 41 of that Act as relate to the admission and enrolment of legal practitioners;
(b) Sections 3, 4 and 6 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920);
(c) So much of Section 8-of the Indian Bar Councils Act, 1926 (38 of 1926), as relate to the admission and enrolment of legal practitioners;
(d) the provisions of the Letters Patent of any High Court and of any other law in so far as they relate to the admission and enrolment of legal practitioners.
(3) On the date on which Chapter IV comes into force, the following shall stand repealed, namely:
(a) Sections-4, 5, 10, and 20 of the Legal Practitioners Act, 1879 (18 of 1879), and so much of Sections 8, 9, 19 and 41 of that Act as confer on legal practitioners the right to practise in any court or before any authority or person;
(b) Sections 5, 7, 8 and 9 of the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920);
(c) Section 14 of the Indian Bar Councils Act, 1926 (39 of 1926), and so much of Sections 8 and 15 of that Act as confer on legal practitioners the right to practise in any court or before any authority or person;
(d) The Supreme Court Advocates (Practice in High Courts) Act, 1951 (18 of 195 1);
(e) The provisions of the Letters Patent of any High Court and of any other law conferring on legal practitioners the right to practise in any, court or before any authority or person.
(4) On the date on which Chapter V comes into force, the following shall stand repealed, namely:
(a) Sections 12 to 15 (inclusive), Sections 21 to 24 (inclusive) and Sections 39 and 40 of the Legal Practitioners Act, 1879 (19 of 1979), and so much of Sections 16, 17 and 41 of that Act as relate to the suspension, removal or dismissal of legal practitioners;
(b) Sections 24 to 27 (inclusive) of the Bombay Pleaders Act, 1920 (17 of 1920);
(c) Sections 10 to 13 (inclusive) of the Indian Bar Council Act, 1926 (38 of 1926);
(d) The provisions of the Letters Patent of any High Court and of any other law in so far as they relate to the suspension, removal or dismissal of legal practitioners,
(5). When the whole of this Act has come into force
(a) The remaining provisions of the Acts referred to in this section which do not stand repealed by virtue of any of the foregoing provisions of this section (except Sections 1, 3 and 36 of the Legal Practitioners Act, 1879 (19 of 1879) shall stand repealed;
(b) The enactments specified in the Schedule shall stand repealed to the extent mentioned therein.
On and from the appointed day, references in any enactment to an advocate enrolled by a High Court in any form of words shall be construed as references to an advocate enrolled under this Act.
(2) On the date on which Chapter III comes into force, the following shall stand repealed namely.
Nothing in this Act shall be deemed to affect the power of the Supreme Court to make rules under Article 145 of the Constitution
(a) for laying down the conditions subject to which a senior advocate shall be entitled to practise in that court;
(b) for determining the persons who shall be entitled to 1[act or plead] in that court
—————
1. Subs. by Act 70 of 1993, sec. 9, for “act” (w.e.f. 26-12-1993).
| Chapter VII | Temporary and transitional provisions |
Notwithstanding anything contained in this Act, the elected members of a State Bar Council constituted for the first time under this Act, shall be elected by and from amongst advocates, vakils, pleaders and attorneys who on the date of the election, are entitled as of right to practise in the High Court and are ordinarily practising within the territory for which the Bar Council is to be constituted.
Term of office of members of first 1[ * * *] State Bar Council
Notwithstanding anything contained in this Act, the term of office of the 2[* * *] elected members of 1[* * *] a State Bar Council constituted for the first time, shall be two years from the date of the first meeting of the Council:
3[Provided that such members shall continue to hold office until the State Bar Council is reconstituted in accordance with the provisions of this Act.
1. Words “the Bar Council of India and” omitted by Act 21 of 1964.
2. Words “nominated and” omitted by Act 14 of 1962.
3. Ins. By Act 21 of 1964 sec.22(ii) and shall be deemed to have always been inserted.
(a) Every pleader or vakil practising as such immediately before the date on which Chapter IV comes into force (hereinafter in this section referred to as the said date) by virtue of the provisions of-the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (17 of 1920), or any other law who does not elect to be or is not qualified to be enrolled as an advocate under this Act:
1[(b) [* * *]
2[(c) every mukhtar practising as such immediately before the said date by virtue the provisions of the Legal Practitioners Act, 1879, or any other law, who does not elect to be, or is not qualified to be, enrolled as an advocate under this Act; (d) Every revenue agent practising as such immediately before the said date by virtue of the provisions of the Legal Practitioners Act, 1879 or any other law];
shall, notwithstanding the repeal by this Act of the relevant provisions of the Legal Practitioners Act, 1879 (18 of 1879), the Bombay Pleaders Act, 1920 (Bombay Act 17 of 1920) or other law, continue to enjoy the same rights as respects practice in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed or, as the case may be, to which he was subject immediately before the said date and accordingly the relevant provisions of the Acts or law aforesaid shall have effect in relation to such persons as if they had not been repealed.
—————
1. Clause (b) omitted by Act 107 of 1976, sec. 10 (w.e.f. 1-1-1977).
2. Subs. by Act 21 of 1964, sec. 23, for clause (c) (w.e.f. 16-5-1964).
(1) On the constitution under this Act of a State Bar Council other than the Bar Council of Delhi hereinafter referred to as the new Bar Council:
(a) All properties and assets vesting in the corresponding Bar Council shall vest in the new Bar Council;
(b) All rights, liabilities, and obligations of the corresponding Bar Council whether arising out of any contract or otherwise, shall be the rights, liabilities and obligations respectively of this new Bar Council;
(c) All proceedings pending before the corresponding Bar Council in respect of any disciplinary matter or otherwise shall stand transferred to the new Bar Council.
(2) In this section, ‘corresponding Bar Council’ in relation to a State Bar Council, other than the Bar Council of Delhi, means the Bar Council for the High Court in the territory for which the State Bar Council is constituted under this Act.
Until a Bar Council is constituted under this Act the power of that Bar Council to make rules under this Act shall be exercised
(a) In the case of the Bar Council of India, by the Supreme Court;
(b) In the case of a State Bar Council, by the High Court.
1[58.Special provisions during the transitional period
(1) Where a State Bar Council has not been constituted under this Act or where a State Bar Council so constituted is unable to perform its functions by reason of any order of a court or otherwise, the functions of the Bar Council or any committee thereof, insofar as they relate to the admission and enrolment of advocates, shall be performed by the High Court in accordance with the provisions of this Act.
(2) Until Chapter IV comes into force, a State Bar Council or a High Court performing the functions of a State Bar Council may enroll any person to be an advocate on a State roll, if he is qualified to be so enrolled under this Act, notwithstanding that no rules have been made under section 28 or that the rules so made have not been approved by the Bar Council of India, and every person so enrolled shall, until that chapter comes into force, be entitled to all the rights of practice conferred on an advocate under section 14 of the Indian Bar Councils Act, 1926 (38 of 1926).
(3) Notwithstanding anything contained in this Act, every person who, immediately before the 1st day of December, 1961, was an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926) or who has been enrolled as an advocate under this Act shall, until Chapter IV comes into force, be entitled as of right to practise in the Supreme Court, subject to the rule made by the Supreme Court in this behalf.
(4) Notwithstanding the repeal by sub-section (2) of section 50 of the provisions of the Legal Practitioners Act, 1879 (18 of 1879) or of the Bombay Pleaders Act, 1920 (17 of 1920) 2[or of any other law relating to the admission and enrolment of legal practitioners, the provisions of the Acts and law aforesaid] and any rules made thereunder insofar as they relate to3[the renewal or the issue byway of renewal] of a certificate to a legal practitioner authorising him to practise shall have effect until Chapter IV comes into force and, accordingly, every certificate issued or renewed to legal practitioner (who is not enrolled as an advocate under this Act) which is or purports to be issued or renewed under the provisions of either of the aforesaid Acts4[or of the other law] during the period beginning with the 1st day of December, 1961 and ending with the date on which Chapter IV comes into force, shall be deemed to have been validly issued or renewed.]
1 Inserted by Act 14 of 1962.
2 Words “relating to the admission and enrollment of legal practitioners, the provisions of those Act” substituted by Act 32 of 1962.
3 Words “the issue and renewal” substituted by Act 21 of 1964.
4 Inserted by Act 32 of 1932.
1[58A Special provisions with respect to certain advocates
(1) Notwithstanding anything contained in this Act, all advocates who, immediately before the 26th day of July, 1948, were entitled to practise in the High Court in Allahabad or the Chief Court in Oudh and who under the provisions of the United Provinces High Courts (Amalgamation) Order, 1948 were recognised as advocates entitled to practise in the new High Court of Judicature at Allahabad but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court, and all advocates who were enrolled as such between the said date and the 26th day of May, 1952, shall, for the purposes of clause (a) of sub-section (1) of section 17 be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Uttar Pradesh.
(2) Notwithstanding anything contained in this Act, all advocates who, immediately before the 10th day of October, 1952 were entitled to practise in the High Court of Hyderabad but whose names were not formally entered on the roll of advocates of that High Court merely by reason of the non-payment of the fee payable to the Bar Council of the said High Court shall, for the purposes of clause (a) of sub-section (1) of section 17 be deemed to be persons who were entered as advocates on the roll of the said High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application being made in this behalf, be admitted as an advocates on the State roll of Andhra Pradesh or of Maharashtra.
(3) Notwithstanding anything contained in this Act, all advocates who, immediately before the 1st day of May, 1960, were entitled to practise in the High Court of Bombay and who applied to get their names entered on the roll of advocates of the High Court of Gujarat under the provisions of section 8 of the Indian Bar Councils Act, 1926 (38 of 1926), but whose names were not so entered by reason of the repeal of the said provision shall, for the purposes of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of the High Court of Gujarat under the said Act and every such person may, on an application being made in this behalf, be admitted as an advocate on the State roll of Gujarat.
(4) Notwithstanding anything contained in this Act, all persons who, immediately before the 1st day of December, 1961, were advocates on the roll of the Court of Judicial Commissioner in any Union Territory under any law in force in that territory shall, for the purposes of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926) and every such person may, on an application made in this behalf, be admitted as an advocate on the State roll maintained in respect of that Union Territory.
—————
1. Ins. by Act 21 of 1964, sec. 25 (w.e.f. 16-5-1964).
1(1) Notwithstanding anything contained in this Act, all persons who, immediately before the date on which the provisions of Chapter II are brought into force in the Union territory of Pondicherry, were entitled to practice the profession of law (whether by way of pleading or acting or both) under any law in force in the said Union territory or who would have been so entitled had they not been in public service on the said date, shall for the purpose of clause( a) of sub section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Council Act, 1926, and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of Madras, be admitted as an advocate on the State roll maintained in respect of the said Union territory.
(2) Notwithstanding anything contained in this Act, every person, who immediately before the date on which the provisions of Chapter IV are brought into force in the Union territory of Pondicherry, was practicing the profession of law (whether by way of pleading or action or both or in any other way) by virtue of the provisions of any law in force in the said Union territory of Pondicherry, was practicing the profession of law (whether by way of pleading or acting or both or any other way) by virtue of the provisions of any law in force in the said Union territory, who does not elect to be or is not qualified to be, enrolled as an advocate under sub section (1), shall notwithstanding the repeal of the relevant provisions of such law by the Pondicherry (Extension of Laws) Act, 1968, continue to enjoy the same rights as respects in any court or revenue office or before any authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.
—————
1. Ins. by Act 26 of 1968, sec. 3 and Sch.—Part I (w.e.f. 10-6-1968).
1[58AB. Special provisions with respect to certain persons enrolled by Mysore State Bar Council
Notwithstanding anything contained in this Act or any judgment, decree or order of any court or any resolution passed or direction given by the Bar Council of India, every person who was admitted as an advocate on the State roll by the State Bar Council of Mysore during the period beginning with the 28th day of February, 1963, and ending on the 31st day of March, 1964 on the basis of his having obtained a certificate of pleadership from the High Court of Karnataka, shall, save as otherwise provided, be deemed to have been validly admitted as an advocate on that State roll and accordingly entitled to practise the profession of law (whether by way of pleading or acting or both):
PROVIDED that where any such person has been elected to be enrolled as an advocate on the roll of any other State Bar Council, his name shall be deemed to have been struck off the roll of the State Bar Council, of Karnataka from the date he was enrolled by the other State Bar Council:
PROVIDED FURTHER that the seniority of such person, whether his name is borne on the State roll of the State Bar Council of Karnataka, or on the State roll of any other Bar Council, shall, for the purposes of clause (d) of sub-section (3) of section 17, be determined by reckoning the 16th day of May, 1964, as the date of admission.]
1. Ins by Act 33 of 1968 sec 3 (w.e.f. 5-6-1968 ).
158AC. Special provisions with respect to certain persons enrolled by Uttar Pradesh State Bar Council
Notwithstanding anything contained in this Act or any judgment, decree or order of any court, every person who was enrolled as an advocate by the High Court during the period beginning with the 2nd day of January, 1962 and ending on the 25th day of May, 1962 and was subsequently admitted as an advocate on the State roll by the State Bar Council of Uttar Pradesh shall be deemed to have been validly admitted as an advocate on that State roll from the date of his enrolment by the High Court and accordingly entitled to practise the profession of law (whether by way of pleading or acting or both).]
1. Secs. 58AC, 58AD, 58AE and 58AF inserted by Act 60 of 1973.
158AD. Special provisions with respect to certain persons migrating to India
Notwithstanding the repeal by this Act of the provisions of the Legal Practitioners Act, 1879 (18 of 1879), or of any other law relating to the admission and enrolment of legal practitioners (hereafter in this section referred to as such Act or law), every person who migrates to the territory of India from any area which, before the 15th day of August, 1947, was comprised within India as defined in the Government of India Act, 1935, and who has, before such migration, been a pleader, mukhtar or revenue agent in any such area under any law in force therein, may be admitted and enrolled under the relevant provisions of such Act or law as a pleader, mukhtar or, as the case may be, revenue agent, if he
(a) makes an application for the purpose to the appropriate authority under such Act or law; and
(b) is a citizen of India and fulfils other conditions, if any, specified in this behalf by the appropriate authority aforesaid,
and notwithstanding the repeal by this Act of the relevant provisions of such Act or law, every pleader, mukhtar or revenue agent so enrolled shall have the same right as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority to which he would be subject under the relevant provisions of such Act or law as if they had not been repealed and accordingly, those provisions shall have effect in relation to such persons.
—————
1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).
1(1) Notwithstanding anything contained in this Act, all persons who, immediately before the date on which the provisions of Chapter III are brought into force in the Union Territory of Goa, Daman and Diu were entitled to practise the profession of law (whether by way of pleading or acting or both) under any law in force in the said Union Territory or who would have been so entitled had they not been in public service on the said date, shall, for the purpose of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of Maharashtra, be admitted as an advocate on the State roll maintained in respect of the said Union Territory:
PROVIDED that the provisions of this sub-section shall not apply to any person who, on the date of the application aforesaid, was not a citizen of India.
(2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the Union Territory of Goa, Daman and Diu, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force in the said Union Territory, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1), shall notwithstanding the repeal by this Act of the relevant provisions of such law, continues to enjoy the same rights as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or, as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to such persons as if they had not been repealed.
(3) On the date on which this Act or any part thereof comes into force in the Union Territory of Goa, Daman and Diu, the law in force in that Union Territory which corresponds to this Act or such part and which does not stand repealed by virtue of the provisions of section 50 of this Act, shall also stand repealed.
—————
1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).
158AF. Special provisions in relation to Jammu and Kashmir
(1) Notwithstanding anything contained in this Act, all advocates who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, were entitled to practise in the High Court of that .State, or who would have been so entitled had they not been in public service on the said date, shall for the purpose of clause (a) of sub-section (1) of section 17, be deemed to be persons who were entered as advocates on the roll of a High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and every such person may, on an application made in this behalf within such time as may be specified by the Bar Council of India, be admitted as an advocate on the State roll maintained in respect of the said State.
(2) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter III are brought into force in the State of Jammu and Kashmir, was entitled otherwise than an advocate to practise the profession of law (whether by way of pleading or acting or both) by virtue of the provisions of any law in force in the said State, or who would have been so entitled had he not been in public service on the said date, may be admitted as an advocate on the State roll maintained in respect of the said State, if he
(i) makes an application for such enrolment in accordance with the provisions of this Act; and
(ii) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1) of section 24.
(3) Notwithstanding anything contained in this Act, every person who, immediately before the date on which the provisions of Chapter IV are brought into force in the State of Jammu and Kashmir, was practising the profession of law (whether by way of pleading or acting or both or in any other way) by virtue of the provisions of any law in force therein, or who does not elect to be or is not qualified to be enrolled as an advocate under sub-section (1) or sub-section (2), shall, notwithstanding the repeal by this Act of the relevant provisions of such law, continue to enjoy the same rights as respects practise in any court or revenue office or before any other authority or person and be subject to the disciplinary jurisdiction of the same authority which he enjoyed, or as the case may be, to which he was subject, immediately before the said date and accordingly the relevant provisions of the law aforesaid shall have effect in relation to curli nprcnns as if fhpv had not been repealed.
(4) On the date on which this Act or any part thereof comes into force in the State of Jammu and Kashmir, the law in force in that State which corresponds to this Act or such part thereof which does not stand repealed by virtue of the provisions of section 50 of this Act, shall also stand repealed.]
—————
1. Ins. by Act 60 of 1973, sec. 40 (w.e.f. 31-1-1974).
1[58AG. Special provisions in relation to articled clerks
Notwithstanding anything contained in this Act, every person who, immediately before the 31st day of December, 1976, has commenced his articleship and passed the Preliminary examination, for the purpose of enrolment as an attorney of the High Court at Calcutta in accordance with the rules made under sub-section (2) of section 34, before the omission of that sub-section by the Advocates (Amendment) Act, 1976 (107 of 1976), may be admitted as an advocate on the State roll if he
(i) passes, on or before the 31st day of December, 1980,
(a) the Final examination in a case where such person has, before the 31st day of December, 1976, passed the Intermediate examination,
(b) the Intermediate and the Final examinations in any other case. Explanation : For the purpose of this clause, the High Court at Calcutta may prescribe such rules as may be necessary under sub-section (2) of section 34, specifying the nature of the examination and any other matter relating thereto;
(ii) makes an application for such enrolment in accordance with the provisions of this Act; and (iii) fulfils the conditions specified in clauses (a), (b), (e) and (f) of sub-section (1) of section 24.]
158B. Special provisions relating to certain disciplinary proceedings
(1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll.
(2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56 :
PROVIDED that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian Bar Councils Act, 1926 (38 of 1926), the High Court shall dispose of the case and it shall be lawful for the High Court to exercise for the purpose all powers conferred on it under section 12 of the said Act as if that section had not been repealed:
PROVIDED FURTHER that where the High Court has referred back any case for further inquiry under sub-section (4) of section 12 of the said Act, the proceeding shall stand transferred to the State Bar Council in relation to the High Court as if it were proceeding before a corresponding Bar Council under clause (c) of sub-section (1) of section 56.
(3) If immediately before the said date there is any proceeding in respect of any disciplinary matter pending in relation to any pleader, vakil, mukhtar or attorney, who has been enrolled as an advocate on any State roll under the Act, such proceeding shall stand transferred to the State Bar Council on the roll of which he has been enrolled and be dealt with under this Act as if it were a proceeding arising against him thereunder.
(4) In this section “existing advocate” means a person who was enrolled as an advocate on the roll of any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), and who, at the time when any proceeding in respect of any disciplinary matter initiated against him, is not enrolled as an advocate on a State roll under this Act.
(5) The provisions of this section shall have effect, notwithstanding anything contained in this Act]
1. Inserted by Act 21 of 1964 sec. 25.
1[59. Removal of difficulties
(1) If any difficulty arises in giving effect to the provisions of this Act, particularly in relation to the transition from the enactments repealed by this Act to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provision not inconsistent with the purposes of this Act, as appear to it to be necessary or expedient for removing the difficulty.
(2) An order under sub-section (1) may be made so as to have retrospective effect from the date not earlier than the 1st day of December, 1961.]
1 Inserted by Act 21 of 1964.
1[60. Powers of Central Government to make rules
(1) Until rules in respect of any matter under this Act are made by a State Bar Council and approved by the Bar Council of India, the power to make rules in respect of that matter shall be exercisable by the Central Government.
(2) The Central Government after consultation with the Bar Council of India may by notification in the Official Gazette, make rules under sub-section (1) either for any State Bar Council or generally for all State Bar Councils and the rules so made shall have effect, notwithstanding anything contained in this Act.
(3) Where in respect of any matter any rules are made by the Central Government under this section for any State Bar Council, and in respect of the same matter, rules are made by the State Bar Council and approved by the Bar Council of India, the Central Government may, by notification in the Official Gazette, direct that the rules made by it in respect of such matter shall cease to be in force in relation to that Bar Council with effect from such date as may be specified in the notification and on the issue of such notification, the rules made by the Central Government shall, accordingly, cease to be in force except as respects things done or omitted to be done before the said date.]
1. Inserted by Act 32 of 1962 sec. 4.
SCH1. The Schedule
[Section 50(5)]
Repeal Of Certain Enactments
| Short title | Extent of Repeal | |
| The Legal Practitioners (Women) Act, 1923 (23 of 1923). | The whole | |
| The Legal Practitioners (Fees) Act, 1926. (21 of 1926). | The whole | |
| The State Reorganisation Act, 1956 (37 of 1956) | Section 53 | |
| The Bombay Reorganisation Act, 1960 (11 of (1960). | Section 31 | |
