Monthly Archives: August 2013

New COMPANIES ACT, 2013 (Act No. 18 of 2013)

 

New COMPANIES ACT, 2013 (Act No. 18 of 2013)

The Companies Act, 2013 (Act No. 18 of 2013) has received Presidential assent. Hon’ble  President Pranab Mukherjee gave his assent to this Bill on 29th August, 2013

With this move, India has now got a new company law that has replaced the erstwhile Companies Act 1956.

The Corporate Affairs Ministry is expected to in the next few weeks come up with draft rules for public comments.

Link of Companies Bill, 2012

Link of Companies Bill, 2012

This link provide you the PDF file of Companies Bill, 2012 which was passed by Lok Sabha on 18th December, 2012

http://www.mca.gov.in/Ministry/pdf/The_Companies_Bill_2012.pdf

What is a Gift Deed? Who can Gift Property? Is it necessary to Register a Gift Deed?

What is a Gift Deed?

A gift is the transfer of property by one person to another made voluntarily and without consideration. The person transferring the property is called the donor. The person to whom the property is transferred is called the Donee. The Donee must accept the property. Such acceptance must be made during the lifetime of the donor and while he is still capable of giving it. In case the donee dies before acceptance, the gift is void. According to Section 122 of the Transfer of Property Act, the essential elements of a gift are:

 

1. Transfer of property

2. Absence of consideration

3. Acceptance by Donee

 

There cannot be a gift without a giving and taking. The giving and taking are two simultaneous and reciprocal acts that constitute a gift. In order to constitute a valid gift, a basic requirement is acceptance. There is no specified mode for acceptance. A transaction of gift in order to be complete must be accepted by the Donee during the lifetime of the Donor.

 

 Who can gift property?

Any person who is the legal owner can make a gift of his property. A minor, being incompetent to contract, is incompetent to transfer property as a gift. A gift by a minor will be void. On behalf of a minor, a natural guardian can accept a gift containing a condition that the person nominated in the gift deed will act as a manager of the gifted property. Such acceptance amounts to recognition of the natural guardian of the nominated person as a manager for the purpose of the gift of property. While a minor may be a Donee, if the gift is onerous, the obligation cannot be enforced against him while he is a minor. But later, he must either accept the burden or return the gift. A gift may be accepted on behalf of a Donee. The Donee may be a person unable to express acceptance. The Donee must be an ascertainable person. The gift must be an existing property. It cannot be a future property.

 

Is it necessary to register a gift deed?

Under Section 123 of the Transfer of Property Act, a gift of property, which is not registered, is bad in law and cannot pass any title to the Donee. Documents should be stamped and registered as required. Mere delivery of possession without a written instrument cannot confer title.

A deed cannot be dispensed with even for a property of small value. Attestation by two witnesses is required. This provision excludes every other mode of transfer and even if the intended Donee is put in possession, a gift of property is invalid without a registered instrument.

Types of Mortgage under Section 58 of The Transfer Of Property Act, 1882

Section 58 of The Transfer Of Property Act, 1882 define . “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgaged”

Section 58(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.

The instrument (if any) by which the transfer is effected is called a Mortgage-Deed.

Section 58(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.

Section 58(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 a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

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.

Section 58(d) Usufructuary mortgage-Where the mortgagor delivers possession 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 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 or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.

Section 58(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.

Section 58(f) Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the 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 immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

Section 58(g) Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.

Lease of Immovable Property under Section 105 of The Transfer Of Property Act, 1882

Under Section 105 of The Transfer Of Property Act, 1882, Lease defined as follow –

A lease of Immovable 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.

In The Transfer Of Property Act, 1882,

The Transferor is called the Lessor.

The Transferee is called the Lessee,

The Price is called the Premium,

The Money, Share, Service or Other thing to be so rendered is called the Rent.

Buying the property of Trust Under Section 36 of Bombay Public Trust Act 1950

Alienation of immovable property of public trust :­


(1) Notwithstanding anything contained in the instrument of trust –

(a) no sale, exchange or gift of any immovable property, and
(b) no lease for a period exceeding ten years in the case of agricultural
land or for a period exceeding three years in the case of non­
agricultural land or a building,
belonging to a public trust, shall be valid without the previous sanction of
the Charity Commissioner. Sanction may be accorded subject to such
31condition as the Charity Commissioner may think fit to impose, regard
being had to the interest, benefit or protection of the trust;
(c) if the Charity Commissioner is satisfied that in the interest of any
public trust any immovable property thereof should be disposed of, he
may, on application, authorise any trustee to dispose of such property
subject to such conditions as he may think fit to impose, regard being
had to the interest or benefit or protection of the trust.

(2) The Charity Commissioner may revoke the sanction given under
clause (a) or clause (b) of sub­section (1) or, the ground that such sanction was
obtained by fraud or misrepresentation made to him or by concealing from the
Charity Commissioner, facts material for the purpose of giving sanction; and
direct the trustee to take such steps within a period of one hundred and eighty
days from the date of revocation (or such further period not exceeding in the
aggregate one year as the Charity Commissioner may from time to time
determine) as may be specified in the direction for the recovery of the property.

(3) No sanction shall be revoked under this section unless the person in
whose favour such sanction has been made has been given a reasonable
opportunity to show cause why the sanction should not be revoked.

(4) If, in the opinion of the Charity Commissioner, the trustee has failed
to take effective steps within the period specified in sub­section (2), or it is not
possible to recover the property with reasonable effort or expense, the Charity
Commissioner may assess any advantage received by the trustee and direct
him to pay compensation to the trust equivalent to the advantage so assessed.

36A. Powers and duties of and restrictions on, trustees:­

(1) A trustee of every public trust shall administer the affairs of the trust and
apply the funds and properties thereof for the purpose and objects of the trust in
accordance with the terms of the trust, usage of the institution and lawful
directions which the Charity Commissioner or Court may issue in respect
thereof, and exercise the same care as a man of ordinary prudence does when
dealing with such affairs, funds or property, if they were his own.

(2) The trustee shall, subject to the provisions of this Act and the instrument of
trust, be entitled to exercise all the powers incidental to the prudent and
beneficial management of the trust, and to do all things necessary for the due
performance of the duties imposed on him.

(3) No trustee shall borrow moneys (whether by way of mortgage or otherwise)
for the purpose of or on behalf of the trust of which he is a trustee, except with
the previous sanction of the Charity Commissioner, and subject to such
conditions and limitations as may be imposed by him in the interest or protection
of the trust.

(4) No trustee shall borrow money for his own use from any property of the
public trust of which he is a trustee.
Provided that, in the case of trustee who makes a gift of debentures or
any deposit in his business or industry the trustee shall not be deemed to have
borrowed from the trust for his own use.

36B. Register of moveable and immovable properties :­

(1) A public trust shall prepare and maintain a register of all moveable
and immovable properties (not being property of a trifling value) of such trust in
such form or forms giving all such information as may be prescribed by the
Charity Commissioner.

(2) Such register shall show the jewels, gold, silver, precious stones,
vessels and utensils and all other moveable property belonging to the trust with
their description, weight and estimated value.

(3) Such register shall be prepared within three months from the expiry of
the accounting year after the commencement of the Bombay Public Trust
(Amendment) Act, 1970,

(4) Such register shall be signed by all the trustees or by any person duly
authorised by trustees in this behalf after verifying its correctness, and shall be
made available to the auditor for the purpose of auditing if the accounts are
required to be audited under the provisions of this Act. Where the accounts are
not required to be audited, the trustees shall file a copy of such register duly
signed and verified, with the Deputy or Assistant Charity Commissioner of the
region.

(5) The auditor shall mention in the audit report whether such register is
properly maintained or not, and the defects or inaccuracies, if any, in the said
34register and the trustees shall comply with the suggestions made by the auditor
and rectify the defects or inaccuracies mentioned in the audit report within a
period of three months from the date on which the report is sent to the trustees.

(6) Every year within three months from the date of balancing the
accounts, the trustee or any person authorised by him shall scrutinize such
register, and shall bring it up­to­date by showing alterations, commissions or
additions to the same, and such changes shall be reported to the Deputy or
Assistant Charity Commissioner in the manner provided in section 22.

Validity of Stamp Paper in Maharashtra

Under Section 52 B(b) of the Bombay Stamp Act prescribes a period of 6 months for the validity of stamps.

Notwithstanding anything contained in sections 47, 50, 51 and 52,-

(a) Any stamps which have been purchased but have not been used or in respect of which
no allowance has been claimed on or before the day immediately preceding the date of
commencement of the Bombay Stamp (Amendment) Act, 1989 (hereinafter referred to as
“the commencement date”) and the period of six months from the date of purchase of
such stamps has not elapsed before the commencement date, may be used before a period
of six months from the date of purchase of such stamps is completed, or delivered for
claiming the allowance under the relevant provision of this Act; and any stamps not so
used or so delivered within the period aforesaid shall be rendered invalid.
(b) Any stamps which have been purchased on or after the commencement date but have
not been used, or no allowance has been claimed in respect thereof, within a period of six
months from the date of purchase thereof, shall be rendered invalid]