Introduction

One of the principle aims of the Insolvency and Bankruptcy Code, 2016 (“Code”) is resolution of insolvency of corporate persons, firms, and individuals in an effective, efficient and time bound manner. Chapter III of Part III of the Code deals with insolvency resolution and bankruptcy for individuals and partnership firms, including personal guarantors. Section 5(22) of the Code defines the term ‘personal guarantor’ as an individual who is the surety in a contract of guarantee to a corporate debtor. Rule 3 (1) (f) of Insolvency and Bankruptcy (Application to Adjudicating Authority for Insolvency Resolution Process for Personal Guarantors to Corporate Debtors) Rules, 2019 (“Rules”) also defines a guarantor as a debtor who is a personal guarantor to a corporate debtor and in respect of whom guarantee has been invoked by the creditor and remains unpaid in full or part.  Continue Reading Personally Guaranteeing the Creditors’ Gain

Divorced Daughter Claim Maintenance from her Family Members under Hindu Adoption and Maintenance Act, 1956?.

Litigation centred around ‘maintenance’ remains an abrasive subject for litigants. For the courts, it is usually a mixed question of law and facts. However, at times, the issues involve an exercise in statutory interpretation. Recently, the Hon’ble Delhi High Court[1] ruled that a ‘divorced daughter’ cannot claim maintenance from her brother or her mother. The rationale being that a divorced daughter does not qualify as a ‘Dependent’ under Section 21 of the Hindu Adoption and Maintenance Act, 1956 (“HAMA” or the “Act”). The Hon’ble Delhi High Court, in this case, was sitting in appeal over a judgement of the Ld. Judge, Family Court, South-East Saket, New Delhi (“Saket Family Court”), which had dismissed the appellant’s plaint. As the Hon’ble Delhi High Court refused to set aside the judgement of the Saket Family Court, in the process, it clarified the law on maintenance to divorced daughters in India. An overview of the law in respect of maintenance under the HAMA may provide a useful background to the issues involved in this lis.Continue Reading Can a Divorced Daughter Claim Maintenance from her Family Members under Hindu Adoption and Maintenance Act, 1956?

Civil Procedure

INTRODUCTION:

It is trite law that a personal action or claim extinguishes with the death of a person. This principle has been appropriately captured in the common law maxim – “action personalismoritur cum persona”, which is the Latin equivalent for “a personal right of action dies with the person”. The maxim, however, has limited application on cases, such as (i) a defamatory action, (ii) criminal proceedings in lieu of personal injury not amounting to murder, (iii) where the grant of any relief in a suit would be nugatory owing to the death of a party, etc. However, where a judgement debtor dies before fully satisfying a money payment decree, the decree holder can apply to the court that had passed the decree to get the decree executed against the legal representatives and/ or legal heirs of the deceased judgement debtor. Here, the above mentioned common law maxim has no application. In this paper, we will discuss the extent of liability of a legal heir in such a situation where the judgement debtor has expired before the execution of a money decree.Continue Reading Liability of Legal Heirs Vis-À-Vis Code of Civil Procedure

joint power of attorney
Source: Livemint.com

The following article was first published in the Mint newspaper on 29th June, 2022. The same was written by our Private Client team at Cyril Amarchand Mangaldas, who frequently publish their comments and opinions in the Mint. The online version of the article can be found here.

I am the sole owner of a plot of land. Can I write a joint power of attorney to my two sons so as to enable them to sell or register that by mutual agreement and later share the amount?

— Name withheld on requestContinue Reading How do I give a joint power of attorney to my sons to sell land?

Until death do us part’ - Can a celebrity’s publicity rights be inherited

After a while you learn that privacy is something you can sell, but you can’t buy it back.”

-Bob Dylan.

Every celebrity possesses a universal and intangible asset – their public image. They spend years cultivating it and protect it fiercely. Like a game of chess, every public interaction becomes a calculated move. However, can this ‘asset’ be inherited?
Continue Reading ‘Until death do us part’: Can a celebrity’s publicity rights be inherited?

I’m leaving on a Jet Plane (or maybe not!) CBDT clarifies tax residency for people trapped in India

John Denver famously sang these lyrics in his famous love ballad, “Leaving on a Jet Plane”:

“’Cause I’m leavin’ on a jet plane

Don’t know when I’ll be back again

Oh babe, I hate to go”

When John sang these iconic words in 1966, when flying was quite the luxury, he could not even have dreamed how aptly they can be applied to the terrifying ‘Severe Acute Respiratory Syndrome Coronavirus-2’ (“COVID-19”) virus. With India going into a harsh and strictly enforced total lockdown from March end till May 17, 2020 (likely to be substantially extended), all airports have been shut and flights grounded. No one is going anywhere, whether they like it or not. No emotional love ballads will be sung, no jet planes will fly off into the sunset. A few repatriation flights have started to bring Indians stuck overseas back to India as part of the world’s largest peacetime repatriation effort, and allow some foreigners to leave India for their home countries – but as of now it is still a trickle.
Continue Reading I’m leaving on a Jet Plane (or maybe not!): CBDT clarifies tax residency for people trapped in India

Supreme Court on rights of Hindu Muslim Interfaith Children

The Supreme Court of India, in the case of Mohammed Salim vs Shamsudeen[1], has finalised the views of a number of High Courts by ruling that a child born out of the marriage of a Muslim man and Hindu woman is legitimate and the child is entitled to inherit the property of the father.

This is a very significant judgment in the current socio-cultural milieu, even though inter-faith marriages are still deeply frowned upon.

Inheritance Rights of a Child Born Out of an Irregular Marriage under Muslim Personal Laws

All matters (except those relating to agricultural land) with respect to intestate succession, special property of females, including personal property inherited or obtained under contract or gift or any other provision of personal law, marriage, dissolution of marriage, maintenance, dower, gifts etc., of Muslim followers are governed by the Muslim Personal Law (Shariat) Application Act, 1937 (Shariat).  Shariat extends to the whole of India except the state of Jammu & Kashmir. 
Continue Reading Supreme Court on the Rights of Inter-faith (Hindu-Muslim) Children