FOREIGN LAW FIRMS & LAWYERS TO INDIA

ALLOWING FOREIGN LAW FIRMS & LAWYERS TO PRACTICE INDIA

CHALLENGES TO BE DEALT WITH:

Allowing foreign lawyers and law firms to practice in India is not a small decision which should be taken by the Bar Council of India, instead it should be a Policy decision taken by the foreign ministry / central ministry of India. The biggest barrier in allowing legal professionals to India from different countries are 

• LANGUAGE (only few countries in the world have their academic and practicing language as English, most of the countries don’t use English as their language)

• LAW CURRICULUM (law subjects and curriculum are different from country to country, there is no uniform Law syllabus in the world)

• CULTURAL DIFFERENCE (Law deals with regional, cultural & custom issues which are completely different from one country to other)

• DRESS CODE & COURT PROCEDURES (different countries have different dress code and different procedures in Law practice for ex: Jury system in America that we don’t have in India)

FEW SUGGESTIONS FOR CONSIDERING FOREIGN LAW FIRMS AND LAWYERS TO PRACTICE IN INDIA

1. LAW AMENDMENT: Advocate Act should be amended to include non-enrolled advocates of Indian states Bar councils to practice in India or Foreign Lawyers should take a Law degree in India.

2. QUALIFYING EXAM: Foreign Lawyers should attend and pass AIBE exam.

3. SHARE OF EMPLOYMENT: Foreign Law firms should appoint 80% of the staff and lawyers from India who is having Indian States’ Bar Council Enrolment and Indian degree & qualifications.

4. EXCHANGE OF LAWYERS: Foreign Ministry should make a list of countries which are interested in allowing their Law firms and lawyers to Practice in India and these countries should accept Indian Lawyers and Law firms to practice in their country also 

5. UNIQUE ID. NUMBER: There should be an International unique common ID for Lawyers working in foreign countries

6. INTERNATIONAL CONSORTIUM: There should be an association of countries which should form a common practice guideline and protection norms for lawyers from different countries and background to practice in their member countries.

7. REGULATING AUTHORITY: There should be proper scrutiny and background check before giving license to the foreign law firms and lawyers by a specially formed board or panel of authorities from Bar council of India and there should be guidelines for remuneration, employee disputes, work procedure etc., 

by: 

Ambu Raja .RS. Achary

Advocate

New Delhi, India

Mob: +91-9899805358 / 8588855358

Email: adv.amburaja@gmail.com

Blog: https://advamburaja.blogspot.com/

Fact of the Case against Rahul Gandhi Under IPC Sections 499 And 500

 Purnesh Ishvarbhai Modi vs Rahul Gandhi (23/03/2023)

Cause of Action for this case started with the statement of Rahul Gandhi during an Election rally in the year 2019

During an Election rally at Kolar, Karnataka, the senior leader of Indian National Congress party Mr Rahul has commented that " Why do all thieves have Modi as the Common Surname?" Taking offence at the comment, former Gujarat cabinet Minister and BJP leader Purnesh Modi approached a Surat Court with the argument that his comments have defamed the entire Modi community.

Purnesh Modi’s lawyer had said that Gandhi’s speech was defamatory against the Modi community, which is categorised as Other Backward Classes and is considered part of the Teli caste. Responding to these allegations, Gandhi’s lawyer Kirit Panawala argued that the legal proceedings in the cases are flawed from the beginning as the procedure under section 202 of the CrPC was not followed. He further said that since the speech had targeted PM Modi, he should have been the complainant, not Purnesh Modi.

The Court heard the arguments of both sides for years and today held Gandhi guilty in this criminal defamation case under sections 499 and 500 of the Indian Penal Code. Gandhi, whose lawyers immediately filed a bail plea, has been sentenced to 2 years imprisonment. The court granted 30-day bail to Gandhi and suspended his sentence till the time of the appeal period.

There is another trouble for Gandhi to deal with. He could possibly lose his Lok Sabha membership because of this ruling. In a 2013 ruling in the Lily Thomas vs Union of India case, the Supreme Court held that any member of a legislative assembly, legislative council, or Parliament found guilty of a crime and handed a sentence of more than 2 years shall lose their House membership.

What are sections 499 and 500 of the IPC?

Section 499 defines what is defamation whereas section 500 of the IPC lays down the punishment for people convicted of criminally defaming a person. In India defamation is considered both a civil offence and a criminal offence. There have been demands from several quarters to consider defamation as just a civil offence.

IPC Section 499 states that any words spoken, read, or gestured with the intention of harming a person’s reputation is to be considered defamation and attract legal punishments. Section 500 states that a person found guilty of this crime “shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.” 

DOCUMENTS REQUIRED TO APPLY ARMS LICENSE IN DELHI

Arms License in Delhi (Documents required):-

1. Application form (apply ONLINE)
   
2. Two passport size copies of the latest photograph of the applicant (in white background):- to be submitted at the time of appointment
3. proof of date of birth
4. proof of identification -Aadhar Card or in case the applicant does not have Aadhar Card, a written declaration to be submitted in the form of an Affidavit along with an alternative identification proof which may include-Passport;Voter identification Card, PAN Card or Identity Card issued to the employees.
5. Residence Proof: In case the applicant does not possess Aadhar Card or Passport, which may include Voter ID Card or Electircity bill or Landline telephone bill or Rent deed or Lease deed or property documents or any other documents to the setisfaction of the Licensing Athority.
6. firearm training certificaTE in form S-1 (whenever made applicable by the Central Government by passing a general or special order);
7. Safe use and storage of firearms undertaking in(Form S-2). Click to Download
8. self attested copies of the educational and professional qualification certificates from professional category applicants as specified in clause (a) of sub-rule (3) of rule 12 of the Arms Rules, 2016.
9. Medical certificates about mental health and physical fitness in form S-3, issued by a registered MBBS Doctor on prescribed proforma. Click to download
10. Self attested copy of the proof of date of birth (e.g. Matriculation certificate or School leaving certificate, Passport etc).
11. in case of protection for destruction of wild animals which do injury to human beings or cattle and damage to crops, permit from the authority empowered under the Wild Life (Protection ) Act, 1972 (53 of 1972)
12. Posting-cum-residence certificate / recommendation from the Commanding / supervisory Gazetted Officer is mandatory (In case of Armed Forces Personnel, and paramilitary forces only). Police personnel may also submit this proof.
13. Financial status proof like Income Tax Return (ITR)/Salary Slip.
14. Attach a copy of FIR/complaints to justify the threat, if any.
15. In case of death/transfer of weapon on inheritance basis:-
• Arms license of the deceased or the transferor as the case may be.
• In case of transfer of weapon the NOC/consent of licensee who intends to transfer his weapon to his legal heir (Form No. FA-58)(Attested by first class Magistrate) Click to download who intends to transfer his weapon,
• Indemnity bond along with weapon deposit permission and weapon depost slip (form No. FA-19)(Attested by first class Magistrate) Click to download 
• NOC given by the legal heirs that they have no objection, if weapon is transferred to the applicant (Form No. FA-33-click to download) (Attested by first class Magistrate)Click to download from all the other legal heirs.
• in case of NSP weapon allotment to Defence Officers/Personnel;  (a) NSP weapon allotment letter (b) NSP weapon issue voucher
16. In case of Shooters/Renowned Shooters:- Certificates of participation/achievements and Recommendation Letter from NRAI/DSRA, whiever applies.
17. In case of Officers/Employees in Govt. Service/PSU:-:-
• NOC from department. Click to download
• Proof of Official address, if any
• Date of retirement (Copy of order issued by the office in case of Govt. Servant / Army/ CPO /Police /DHG personnel)
• The security guard should submit an undertaking from his employer regarding the requirement and his training. Click to download
18. In case of Businessman: Documents to support financial and business worth-
19. Check list of documents for Registration of Arms License from outside jurisdiction in Delhi:-
• Application Form to be filled online
• Original Valid Arms License (to be brought at the Licensing Unit on the day of appointment
• Complete details should be updated in ALIS by the concerned authority
• Weapon(s) for inspection (to be brought at the Licensing Unit on the day of appointment)
• 2 passport size photograph (to be submitted at the time of visiting Licensing Unit on the day of appointment
• Proof of residence as AADHAR, Electricity Bill, Water Bill, Telephone Bill, Driving License, Passport, Tax return, Property/House Tax etc. Copy of PAN card would be accepted only if appended with a copy of Tax Return depicting the address.
• Posting-cum-residence certificate/recommendation from the Commanding/supervisory Gazetted Officer is mandatory (In case of Armed Forces Personnel, and paramilitary forces only). Police personnel may also submit this proof. In that case 2nd proof of residence not required.
• In case of security guard, a certificate from his employer should be submitted about nature of his duties, period of stay in Delhi, along with recommendation for registration. Click to download
• Transportation/Journey License (TL) from DM/Concerned, if the area validity of the Arms License is only for a state.
20. Check list of documents for Company/Bank/Instiution-
• Application Form to be filled online
• Two passport size copies of the latest photograph of the responsible person (in white background); - to be submitted at the time of appointment
• proof of identification -Corporate Identification Number (CIN), and PAN
• safe use and storage of firearms undertaking in (Form S-2) Click to Download
• Constitution of the company be mentioned -Private Limited Company; Limited Company; Government Undertaking; Society Co-operative Society; Institute; University; Partnership Firm; Association of Persons (AOPs) or any special act or otherwise etc.
• Against column 9, the applicant should clearly mention the purpose(s) for which the license is required-such as use, acquisition, possession, carrying, protection, display, target practice or shooting etc.
• The applicant is required to submit the following documents along with the application-
• written undertaking on the letter head of the company applicant duly signed by the responsible person appointed vide clause (44) of rule 2 for filling an application under the arms rules;
• Original copy of the board resolution passed or an authority letter confirming the appointment of responsible person referred to in clause (a) above;
• Certified copies of the founding documents of the Company including Memorandum and Articles of Association
• Note:- After the licence is issued, the company shall appoint retainers licence in form B-3 (available on the website of licensing unit)

Procedure:-

The application form will be submitted online after registration at the website https://licensing.delhipolice.gov.in and submit the signed print out of the application form filled online alongwith the relevant documents & Undertaking at the time of final proceeding of the application at Licensing Unit, 1st Floor, Police Station, Defence Colony, New Delhi-110049.

Succession Certificate & Legal Heir Certificate

 Succession Certificate Under Indian Succession Act

A succession certificate, under the Indian Succession Act, is a document that gives authority to the person who obtains it, to represent the deceased for the purpose of collecting debts and securities due to him or payable in his name. Usually, a succession certificate is the key in the absence of a will, a succession certificate will be the primary document through which the heirs can stake a claim to the assets of a deceased relative

For a succession certificate, one should need to apply to a magistrate or a high court. Usually, courts have a separate cell that issues succession certificates. When it comes to immovable property , there are other documents, like, for instance, a gift deed, that can help.

This certificate authorizes successor(s) to realize debts and securities of the deceased person. Issuance of succession certificate does not give right of succession to the claimed property of a deceased person, because it does not determine the right, title and interest of the deceased person to a particular property or entire property. However, successor(s) of intestate deceased person is/are entitled to inherit the deceased person s property .

What is a Succession Certificate for property ?

Succession certificate is a document issued by a competent court (civil) certifying a rightful person to be the successor of a deceased person. This certificate authorizes successor(s) to realize debts and securities of the deceased person. Issuance of succession certificate does not give right of succession to the claimed property of a deceased person, because it does not determine the right, title and interest of the deceased person to a particular property or entire property. However, successor(s) of intestate deceased person is/are entitled to inherit the deceased person(s) property (ies). As per Section 370 of Indian Succession Act, when the deceased person has left a validly executed Will , the entire estate of the deceased person under that will vests on the executor of the will and in such cases Succession Certificate cannot be granted. In eligible cases, the competent court to issue such certificate is the District Court(Section 371 of the said Act) in whose jurisdiction the deceased person generally resided.

For Movable Properties

Succession Certificate is a document which is issued by the court for claiming movable properties by the successors of the deceased. It is significant, and proper advice should be sought while making and implementing these.

Mostly Banks don’t release funds or FDs without a document of this type granted to the successor. It is applied for movable assets like bank deposits, FDs, etc.

If someone dies intestate, (without leaving a Will) it can be granted by the Civil Court to release the debts and securities of the one who is no more. It establishes the legitimacy of the heirs and gives them the authority to get the deposits and other assets transferred in their names. It is issued by the applicable laws of inheritance on an application filed by the beneficiaries in a court of relevant jurisdiction.

 The first step for any beneficiary is to file for a succession certificate in the same court within whose jurisdiction the dead person resided, to inherit the assets of the deceased or even get them transferred in his name.

 The document/certificate that is issued establishes the authenticity of the petitioner and gives him the authority to have the assets transferred to his name. Along with authority, the beneficiary will also carry with him the full responsibility and liability of honouring any debt or security attached to that particular property.

 For all applications made by a recipient to a court of competent jurisdiction, the document in all cases is issued as per the applicable laws of inheritance.

For Immovable properties

In this case, we have situations when legal heirs stake ownership of title and possession. The title of a property can be transferred through a systematic process of transfer which can be based or done through a factum of a Will or Law of Natural Succession where class I legal heirs are the inheritors. Also, a transfer can take place when the person is alive too, through a Gift Deed. In other cases, a person can claim his right through a partition. 

After the completion of these procedures, the person stands entirely in ownership control. All related services can be taken care of by our firm, including getting documents and also sale if you want later on. Some instances of succession certificate:

 Even if an overseas citizen were to know details about land that he thinks belongs to him, in many cases he finds himself in a situation where either parent or an uncle/aunt has died without making a Will.

 Just knowing that a piece of land belongs to him, cannot help much proper documentation is needed to assert a claim.

 Some rules determine the manner in which all the assets of the deceased are passed on to the heirs.

 It is not easy for him to understand how to get legal heir certificates and he will always need appropriate advice on these matters.

 While applying for such a document, the following information is required:

 The time of the death of the deceased, or the Death Certificate as proof.

 Place of residence of the dead person or if such residence is not within the jurisdiction of the district judge then, any other property of the same individual falling under the purview of the district judge to whom the application is made.

 The details of the family and other kith and kin of the deceased and their residential addresses.

 Proof of what right or what capacity he should be nominated as the successor of the departed.

 Sufficient evidence that the said asset does not fall under the restrictive cases and there is no dispute to his claim as a successor.

 Complete details of any debt or security attached

DIFFERENCE BETWEEN LEGAL HEIR CERTIFICATE AND SUCCESSION CERTIFICATE !

1) Legal heir certificate and succession certificate are entirely different. If the head or a family member passes away, the next direct legal heir of the deceased such as wife/ husband/son/daughter/mother can apply for the Succession Certificate. This certificate can be used for the purpose of transferring Electricity connection, Telephone connection/Patta transfer, House Tax, Bank Account, Filing of IT Returns etc.

2) If the deceased person is a Government servant then the legal heir certificate is issued for approval of family pension, or to get appointments on concerned grounds. Legal Heir certificate is also provided for transfer of property- movable and immovable assets.

3) A Succession Certificate is required when someone inherits any immovable property or movable property under the various Property Laws in the country. Most of these issues come under the Hindu Succession Act. While some of them come under the community acts or the Indian Succession Act. Issues need to be known in the right perspective for both categories.

4) Who issues these certificates ?: Legal Heir certificates is issued by Tahsildar of the district to identify a particular deceased person living heirs and succession certificates are issued by the court to the legal heirs of a deceased person.

5) Who can apply for these Certificates ?: For Succession Certificate: Only legal heir can apply For Legal Heir Certificate: son/daughter/husband/wife/parents of the dead person can apply.

6) What are the Documents required ?: Required Documents to obtain succession certificates are death certificate of a dead person, time and place of death, the name of all legal heirs and relation with the dead person. Required Documents to obtain Legal Heir Certificate are Death certificate original, Identity Card, Ration Card, the name of Family members and relationship, an affidavit worth Rs. 20 on a stamp paper.

7) Fee: For succession certificate, three percentage of total value of the property will be charged. To issue legal heir certificate Rs.2 for a stamp and Rs. 20 for stamp paper for affidavit will be required.

8) Time period: In the case of succession certificate a newspaper notice for 45 days is issued by the court. Any person having an objection with such advertisement can file oppositions. If the court doesn’t receive any objection, it will issue succession certificate. This process may take 5-7 months. 15 to 30 days are needed to issue legal heir certificate.

9) Importance: The Succession Certificate is used for transfer or possession of property or for paying debts or security on behalf of a deceased person or for collecting debts or security on behalf of deceased. The Legal Heir Certificate is used for gratuity, pension, insurance, PF, retirement claims etc.

How to Get Succession Certificate in India

Succession Certificate is a certificate granted by the Courts in India to the legal heirs of a person dying intestate leaving debts and securities. A person is said to have passed away intestate when he/she does not leave a legal Will. Succession certificate entitles the holder to make payment of debt or transfer securities to the holder of certificate without having to ascertain the legal heir entitled to it. Succession certificate provides indemnity to all persons owing such debts or liable on such securities with regards to all payments made to or dealings had in good faith with a person to whom a certificate as granted. Hence, many organisation and person request for succession certificate before settling the debts or securities of the deceased in favour of the person claiming such debts or securities.

Procedure for Obtaining Succession Certificate

To obtain succession certificate, a petition to the District Judge within whose jurisdiction the deceased person ordinarily resided at the time of his or her death or, if at that time he or she had no fixed place of residence, the District Judge within whose jurisdiction any part of the property of the deceased may be found. Petition for Certificate

A petition for succession certificate must contain the following particulars:

 Time of death of the deceased;

 Residence or details of properties of the deceased at the time of death within which Judge the jurisdiction falls under;

 Details of family or other near relatives;

 The rights of the petitioner;

 Absence of any impediment to the grant of certificate;

Grant of Certificate

On making the petition, if the District Judge is satisfied as to the ground of making the petition, can grant an opportunity of hearing to persons who, in his/her opinion, should be heard. After hearing all parties, the Judge can decide the right of the petitioner to be granted the succession certificate. The Judge would then pass an order for grant of certificate specifying the debts and securities set forth in the application empowering the person to receive interest or dividend or to negotiate or transfer or do both.

Restriction on Succession Certificate

A court can sometime require a bond with one or more surety or sureties or any other security for rendering an account of debts and securities received by the petitioner of succession certificate for indemnifying the persons who may be entitled to any part of the debt or securities.

Validity of Succession Certificate

A succession certificate has validity throughout India. If a certificate is granted in a foreign country by an Indian representation accredited to that State, it should be stamped in

accordance with the Court Fees Act 1870 to have the same effect in India as a certificate granted in India.

Succession Certificate (SC) is required when somebody inherits any immovable or movable property under the various relevant Laws in the country. The majority of these issues are covered under the Hindu Succession Act. However, the minorities are covered by their community acts or the Indian Succession Act. This issue needs to be understood in the right perspective for both categories.

Revocation of the Succession Certificate

1. As per Section 383 of the said Act, a certificate so issued may be revoked for any of the following causes:-
2. Process for obtaining the certificate was defective.
3. Certificate was obtained fraudulently.
4. Certificate becomes useless and inoperative due to circumstances.
5. Decree or order of other competent court in dealing with the debts and securities of the same deceased person, renders it proper that the certificate is revoked.
6. Against an order of the District judge, in the matter of grant, refusal or revocation of certificate, a person may appeal to the appropriate High Court.

Conclusion:

Succession Certificate is a document which is issued by the court for claiming movable properties by the successors of the deceased. It is significant, and proper advice should be sought while making and implementing these.

The succession certificate affirms who the legal heirs of the deceased are and that there was no will. This may be enough for the legal heirs to administer and dispose of property, but isn’t the most pertinent document in case of properties. For this, it is possible that a letter of administration is necessary. A letter of administration is a document that explicitly grants a person the authority to administer the property of a person who has died intestate. This procedure to get this document is the same as the procedure for getting the

succession certificate.

AMBU RAJA .RS. ACHARY

Advocate

New Delhi, India

https://advamburaja.blogspot.com/

Mob: 8588855358 / 9899805358