Central Government Notification
Legislation UpdatesRules & Regulations

   

The Central Government has notified Legal Metrology (General) Amendment Rules, 2022 to amend the Legal Metrology (General) Rules, 2011 to provide for the companies to nominate an officer of the establishment or branch or unit in any establishment or branch who has the authority and responsibility for planning, directing and controlling the activities of the respective establishment or branch or unit in any establishment or branch.

The amendment modifies Rules 29 of the Legal Metrology (General) Rules, 2011 relating to Nomination of Director by a Company in order to insert an exception where a company has different establishment or branch or different unit in any establishment or branch, an officer who has the authority and responsibility for planning, directing and controlling the activities of the establishment or branch or different unit may be nominated under section 49 (2) to be in-charge of and be responsible for the conduct of business of the establishment, branch or unit thereof.

Rule 29 provides “Every company shall inform the Director (Legal Metrology) or the concerned Controller or his authorized officer, by notice in duplicate, in format specified in the Thirteenth Schedule containing the name and address of its Director after obtaining his consent in writing, who has been nominated by the company under section 49(2) to be incharge of and be responsible for the conduct of business of the company or any establishment, branch or unit. thereof”

With this amendment companies having different establishments or branches or different units in any establishment or branch can now nominate an officer who has the authority and responsibility for the operations and activities of the establishments or branches or different units.

Chhattisgarh High Court
Case BriefsHigh Courts

   

Chhattisgarh High Court: In a case where an election was declared null and void on the grounds of non-disclosure of criminal antecedents by the winning candidate, Deepak Kumari Tiwari J dismissed the revision petition being devoid of merit. The Court stated that non-disclosure of criminal antecedents amounts to undue influence and interferes with the free exercise of electoral right.

The present revision petition was preferred challenging the order passed by the District Judge, Baikunthpur, District Koria whereby petition of Rajkishan Mahto ‘respondent 1' challenging the election of Sapandeep Mahto ‘petitioner' as returned candidate as Ward Councillor of Manendragarh Municipality on the ground of non-disclosure of offences in his nomination paper has been allowed and the result declaring the petitioner herein as Councilor was held to be void.

It was alleged that the petitioner failed to disclose criminal antecedents, as required under Form-3A, according to Rule 25-A of Chhattisgarh Nagar Palika Election Rules, 1994, (‘the Rules, 1994') as amended on 8-11-2019, vide Notification No. F-1-5/2014/18.

Counsel for petitioner submitted that there are no such mandatory provisions requiring disclosure of acquittal cases. Thus, Rule 28 of Rules, 1994 does not refer to consequences of Rule 25-A, so nondisclosure of offences as required under Rule 25-A is not substantial in view of disqualification prescribed under Section 35 of the Chhattisgarh Municipality Act, 1961 and only for offences enumerated under Section 35-(h), (hh) and (hhh), no other offence has been mentioned and respondent 1 has no such case that the petitioner has been found in such category, therefore, the impugned order is not sustainable.

The Court noted that Chhattisgarh Nagar Palika Nirvachan Niyam, 1994 was amended and Rule 25-A was inserted, according to which, it is mandated that under the provision of sub-rule (1) of Rule 25, every candidate who is submitting his nomination for election of Councillor or Chairperson of Nagar Panchayat before the Returning Officer shall necessarily enclose a self-declaration form provided in Form-3A and shall necessarily enclose an affidavit sworn in before the Magistrate 1st Class or Notary. In the said form, not only the conviction, but also the result of acquittal of every case is necessarily to be disclosed.

It was further noted that the petitioner has also filed a deposition sheet of himself, which reveals that in cross-examination, the petitioner has categorically admitted that he has not furnished information in the said form. He also admitted that from 1998 to 2016, 7 criminal cases have been registered at the Police Stations.

Placing reliance on Krishnamoorthy v. Sivakumar, (2015) 3 SCC 467 the Court noted that non-disclosure of offence while submitting nomination papers amounts to undue influence. The court further held that when the candidate has special knowledge of the pending case, cognizance of which has been taken or charges have been framed and there is non-disclosure on his part, it would amount to undue influence and, therefore, election is to be declared null and void.

Thus, the revision petition is devoid of merit. [Sapandeep Mahto v Rajkishan Mahto, CR No. 57 of 2022, decided on 29-07-2022]


Advocates who appeared in this case :

Rohit Sharma, Advocate, for the Petitioner;

Vinod Tekam, Advocate, for the Respondent 3.


*Arunima Bose, Editorial Assistant has reported this brief.

Experts CornerPramod Rao

The advent of Covid-19 brought home the fragility of life in a way that none in living memory had considered. Both the first wave and the second wave, and the impending third wave, make it all too clear that taking safeguards (masks, frequent hand wash or use of sanitisers) and precautions (taking both the doses of the vaccine) are all too necessary lest life or health will be in severe jeopardy.

 

It is also a time that compels contemplating taking “precautions” to reduce the impact of what the survivors, successors and legal heirs may face after the death of an individual in relation to personal finances and financial assets of such individuals. Nominations have long been considered the panacea both for the individuals and their survivors/successors, and for the institutions that provide nomination facilities. Another initiative often considered is opting for the joint ownership of financial assets, so that the surviving joint owners can access financial assets notwithstanding untimely demise.

 

Both these approaches serve to bypass the daunting and time-consuming process of obtaining succession certificate or court orders (in case of intestate succession) or probate or letters of administration [in case of the testamentary instrument (will) being available], and to reduce, remove or eliminate submission of cumbersome paperwork for enabling access.

 

Your columnist examines the legal and regulatory regime governing nominations and joint ownership of three popular financial assets and their nuances.

(a) Current accounts, savings accounts and fixed deposits with banks.

(b) Safe custody and safety lockers with banks.

(c) Depository or demat accounts.

(d) Mutual funds holdings.

 


Nomination facility in current accounts, savings accounts and fixed deposits with banks


The aggregate of balances in current and savings accounts, as well as fixed deposits in India stands at Rs 153.1 trillion as of 31-3-2021, and represents a sizable amount of money saved or in transit (to be saved or spent). It also represents the most safe savings instrument (barring rare exceptions) in the country.

 

Nomination facility is encoded in a statutory provision viz. Section 45-ZA of the Banking Regulation Act, 1949, added in 1985 to ease the release of deposits to the nominee specified by the depositor upon death of the depositor. The section governs credit balances in savings accounts and current accounts, and to fixed deposits with banks. The norms for access to articles kept in safe custody with banks[1] and safety lockers[2] also follow principles and norms applicable for deposits (unless otherwise noted).

 

Individuals who jointly own and operate bank accounts or deposits are also permitted to make nominations. Nominations can only be made when the deposits are held in an individual capacity, and not in a representative capacity (including as a holder of an office or otherwise).

The forms as prescribed are part of the Banking Companies (Nomination) Rules, 1985.[3]

 

If the nominee is a minor, the depositor can choose while making the nomination to appoint another individual (who is a major), to receive the amounts on behalf of the nominee (during the minority of the nominee) in the event of the death of the depositor.

 

A depositor can vary or cancel the nomination during the tenure of the deposit. Banks are required to provide acknowledgment of nominations to the depositor, and register the nomination, cancellation or variation in its records.

 

The key benefit that nominations provide to banks is that they receive a full discharge of the liability in respect of the deposit on making payment of the monies to the nominee[4].

 

It is important to note that while the nominee is legally entitled to receive the money from the bank, the nominee does not constitute the successor or inheritor of such sums. The successors or legal heirs (either in terms of the will executed by the depositor, or as per the personal laws of succession governing the depositor who dies intestate) are entitled to claim their rightful share from the nominee[5].

 

Many a time one sees claimants (claiming to be legal heirs or successors of a deceased depositor) serve notice of their claim or interest to the bank. As such[6], a bank is not bound to receive such notice nor is bound by such notice even when it has been expressly delivered to it. Only and only if a decree, order, certificate or other authority from a court of competent jurisdiction relating to such deposit is notified or served on the bank, is the bank required to take due note of such decree, order, certificate or other authority[7].

 

Table 1: Current and savings accounts, fixed deposits, safe custody and safety lockers

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee Legal heirs (as per succession certificate/probate/letters of administration)

 

A further element which bears consideration is that in terms of the current law, the nomination by a bank depositor is limited to a single individual[8]. This is in contrast to several other financial assets which permit multiple nominees and/or even specification of allocation (in percentages) among such multiple nominees.

 

Hence, it appears that almost by design the bank or the nominee, or both could be placed in a situation of having to deal with the legal heirs, successors and claimants, and which could also lead to litigious situations.

 

It is your columnist’s view that Section 45-ZA of the Banking Regulation Act (and consequently the Rules thereunder) should be amended to facilitate depositors being able to specify multiple nominees (together with percentage allocation of the money among them). This would help bank deposits keep pace with the approach adopted for other financial assets. Such a change would allow the depositors to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominee carries in having to deal with the legal heirs, successors and claimants.

 

A separate thought is for banks to facilitate nominations being done on their internet banking sites or mobile banking apps. There has been a (mis)apprehension on account of the prescribed forms requiring signatures (construed as wet or physical signatures): this has led to banks hesitating in digitalisation of the nomination process.

 

In fact, the provisions of the Information Technology Act of 2000 and the various mechanisms specified therein for concluding contracts, can extend to the nomination forms being completed and submitted through authenticated means (such as internet banking or mobile banking apps) and will be legal, valid and effective (just as the transactions conducted over such internet banking sites or mobile banking apps). Adoption of such means – Aadhaar-based eSign, or OTP-based confirmation or simply undertaking the nomination after authentication of credentials of the internet banking site or mobile banking app – would also mean that requirement of witness if any can be dispensed with.

 

In respect of articles kept in safe custody or kept in the safety lockers, one item worthy to call out as a difference (from treatment of deposits) is that the bank, before returning any articles to the nominee or prior to removal of contents of the safety locker by the nominee, is required to prepare an inventory of such articles. The nominee is required to sign a copy of such inventory, and is entitled to receive a copy of the inventory.

 


Joint ownership and operation of current and savings accounts, fixed deposits, articles in safe custody and safety locker


Almost all financial assets are capable of joint ownership. One critical aspect, especially relevant for ease of access to financial assets, is the treatment of joint ownership and of joint operation of such financial assets on the death of one of the joint owners.

 

One key benefit is the rule of survivorship, which specifies that the surviving joint owners get the legal title to the asset. It would of course beg the question then why is nomination permitted and encouraged for jointly owned accounts: it is for the remote contingency of all the joint holders perishing simultaneously or together, that nomination becomes relevant.

 

In terms of practicality, in case of current or savings accounts, it is the mode of operation which also determines the ease.

 

For instance, specifying “either or survivor” or “anyone or survivor” enables any one of the account holders jointly owning an account to access the account even upon death of any of the account holder/s. Specifying “former or survivor” allows the first account holder to operate the account during her lifetime and upon her death, the survivor to operate the account. “Latter or survivor” works in pretty much similar way, where the second account holder operates the account in her lifetime and upon her death, the first account holder can operate the account.

 

If however, the mode of operation has been specified as joint, then it requires all account holders during their lifetime to jointly provide the instructions or sign cheques. Upon death of one of the account holders, the right to operate such a joint account will stand revoked or suspended. Such surviving account holders would need to establish a separate account to receive the proceeds from the joint account.

 

Accordingly, the choice of mode of operation is highly important, and certain choices, as above, can provide ease of access to the survivors and allow the continuing operation of an account upon death of one of the account holders.

 

In terms of the rule of survivorship, the surviving account holders (under all modes of operation) get a legal title to the balance in the account, and the bank gets a good discharge from such surviving account holders.[9] Nomination, if any made, for such joint accounts has no relevance, unless all the joint account holders are no more.

 

It is all too necessary to call out that just as in the case of nominees, while the surviving account holder/s are legally entitled to receive the money from the bank, the survivors may not constitute the successors or inheritors of such sums. The successors or legal heirs (either in terms of the will executed by the deceased account holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[10].

 

It is your columnist’s view that the choices in the mode of operation that bank accounts provide is worthy of emulation across other financial assets. Several of the financial assets straitjacket the joint ownership, and hinder the ease of access to joint owners and survivors.

 

Summary of reforms recommended for current accounts, savings accounts, fixed deposits, articles in safe custody and safety lockers

Permit multiple nominees (doing away with current limitation of one nominee).
Permit specification of allocation of percentage of among multiple nominees.
Facilitate e-nominations (over internet banking or mobile banking apps).
Placing a deadline for all holders of current accounts/savings accounts/fixed deposits that are presently without nominations to provide nominations.

Nomination facility in depository or demat accounts


 

With a growing number of investors in the equity markets, or those holding bonds and debentures or even sovereign gold bonds, having a depository account (more popularly referred to as “demat account”) with a depository participant (which in turn are linked to either of the two securities depositories[11] licensed by the Securities and Exchange Board of India SEBI) is a given. The total count of demat accounts stood at 55 million plus as of 31-3-2021[12], with Rs 518.83 trillion constituting the total value of securities held in such demat accounts.

 

Nomination is possible for demat accounts. There is flexibility to specify up to three nominees, and in case of multiple nominees, the demat account holder/s can specify the percentage of share of each nominee. In the event percentage allocation is not specified, the presumption of equal division among the nominees applies.

 

Individuals who jointly own demat accounts are also permitted to make nominations. Nominations can be made only by individuals, and only individuals/natural persons can be specified as nominees[13].

 

A minor can be a nominee, subject to the name and address of the guardian being provided.

 

The prescribed forms require photographs of the nominee and other details to help identify and give effect to the nomination. Additionally, the form requires a witness for nomination.

Nominations can be varied or cancelled and fresh nominations made.

 

The key benefit that nominations provide to depositories and depository participants is that they receive a full discharge of the liability upon the transmission of the securities balances in the demat account to the nominee.

 

It is important to note that while the nominee is legally entitled to receive the transmission of the securities balance in the demat account, the nominee does not constitute the successor or inheritor of such securities. The successors or legal heirs (either in terms of the will executed by the demat account holder, or as per the personal laws of succession governing the demat account holder who dies intestate) are entitled to claim their rightful share from the nominee[14].

 

Table 2: Depository or demat accounts

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)

 

As can be noted, the demat accounts permit more than one nominee (though imposes a limit of three nominees). It permits percentage allocation among the nominees for all the securities held in demat account (in the aggregate and not individually).

 

One reform to consider would be to do away with the limitation of three nominees. It would facilitate demat account holders being able to specify multiple nominees without limitation (while continuing with the percentage allocation of the money among them). Such a change would allow the demat account holders to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominees carry in having to deal with the legal heirs, successors and claimants. Nonetheless, flexibility of having up to three nominees is certainly better than one.

 

Another limitation is the manner in which nominations along with the percentage allocations takes effect: such nominations and allocations apply across the securities balances held in the demat account, and securities-wise nominations or allocation are not currently possible. Hence, if there are multiple sets of shares and securities held, the nomination and percentage allocation uniformly cuts across all the shares and securities. A potential reform to consider is facilitating nominations and percentage allocation at the level of each security held in the demat account. Such a possibility, it must be noted, exists for physical shares and securities.

 

A few recent changes[15] that have been made by SEBI which regulates depositories and depository participants that provide demat accounts, in respect of nomination, are important to consider:

 

  • On and from 1-10-2021, investors opening new demat accounts have a choice of providing nomination or opting out of making a nomination. Due formats have been prescribed for either course, and for changes to or cancellation of nominations made.

Indeed, while the regulator has provided a choice of making nomination or opting out of making a nomination, it is your columnist’s view that it would be particularly foolish and indeed downright mean for demat account holders to not use the nomination facility. It would leave the survivors and successors facing a needless, time-consuming and daunting process of obtaining a succession certificate or court orders (in case of intestate succession) or probate or letters of administration, with attendant costs and efforts. Having chosen to invest and open a demat account, it would be prudent and practical to utilise the nomination facility.

  • All existing eligible demat account holders are required to make a choice of providing nomination or opting out of making a nomination on or before 31-3-2022, failing which no debits can be made to the demat account, effectively freezing trading of securities held therein.

Such a missive is a much-needed measure. Lack of nomination impacts both the survivors, successors and inheritors as well as the depositories and depository participants. Both bear the burden of having to arrange for (and receive) duly notarised copy of succession certificate or an order of a court of competent jurisdiction (when the demat account holder has not left a will) or duly notarised copy of probate or letter of administration (when the demat account holder did execute a will). Either course is a daunting court process, which the survivors, successors or inheritors face. For the depositories and depository participants, when there is no nomination, then good discharge can be achieved only by receiving such documents.

  • A key change has been dispensing with the witnessing of the nomination form in the following circumstances:

(a) Nomination form signed under wet signature of the demat account holders.

(b) Online nomination form signed using e-Sign facility.

Witness signature is however required when the demat account holders affix thumb impression (in lieu of signatures).

It is your columnist’s view that such a measure is quite laudatory and appreciable: it removes the friction of the depository participant or the investor having to arrange for an independent witness, and provides due privacy to investors affixing wet signatures or using e-Sign facility. In respect of investors affixing thumb impressions, perhaps if could be nudged instead to use e-Sign facility (which also relies on biometric identification), would also have the same benefit. Notably, most other financial assets also do not require witnessing of the nomination form and this measure brings demat accounts in line with the same.

 


Joint ownership and operation of demat accounts


Individuals can jointly own demat accounts, subject to a limit of three joint owners. A minor cannot be one of the joint owners[16].

 

In keeping with the recommendation of lifting the limit of number of nominees, it would be appropriate to also recommend lifting the limit of number of joint owners of a demat account.

 

In case of death of any one joint owner, the rule of survivorship will be applicable. To briefly recap, this means that the surviving joint owners get the legal title to the balances in the demat account. It is noted that while the surviving account holder/s are legally entitled to receive the securities balances in the demat account, the survivors may not constitute the successors or inheritors of such securities. The successors or legal heirs (either in terms of the will executed by the deceased demat account holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[17].

 

When the surviving demat account holders provide a notarised death certificate of the deceased account holder, the depository participant would proceed to freeze the demat account, and transmit the balances to the demat account of the surviving demat account holders.

 

This presumably preserves the record of holdings, transactions and of the demat account holders (including the deceased account holder) in the records of the depository, and fresh records are created for the surviving demat account holders and their transactions.

 

This perhaps is a key difference between joint bank accounts and joint demat accounts: the former is a running account, capable of being operated (subject to the mode of operation) even upon the demise of one of the joint holders, while the demat account is closed upon death of one of the joint holders. A reform worthy of consideration is treating the demat account as a running account, the way bank accounts are: so demise of a joint owner should not mean closure of the demat account (with attendant transmission of the balances to the demat account of the surviving demat account holders). Rather, the surviving demat account holders should be allowed to continue operations in the same demat account.

 

Jointly owned demat accounts also have a very limited scope on mode of operation: the depositories require that all joint holders authorise the transactions.

 

Practically, the first holder or main holder could be conducting the transactions, especially in case of online transactions. Additionally, reliance is possibly placed on a letter of authority or power of attorney given by all the joint owners of the demat account holders.

 

As mentioned earlier, the multiple choices in the mode of operations that bank accounts provide is worthy of emulation for demat accounts. Limiting the mode of operation to only jointly by all the demat account holders, and allowing practices to develop wherein parties rely upon a letter of authority or a power of attorney from all the demat account holders can be thought of as an inefficient and poor workaround. Rather, just as banks facilitate different types of modes of operations, the two depositories could upgrade their systems to provide the same or similar facility.

 

Summary of reforms recommended for depository or demat accounts

Permit multiple nominees (doing away with current limitation of three nominees).
Permit ability to specify nominations and percentage allocation at the level of each security held in the demat account (from current account level nomination and allocation being feasible).
Removal of choice of opting out from making nomination.
Permit multiple joint owners (doing away with current limitation of three joint owners).
Permitting jointly held demat accounts to become a running account by surviving demat account holders after the death of one of the joint holders (doing away with closure of demat account and transfer of balances to demat account held by surviving holders).
Permitting multiple modes of operation for jointly held demat accounts

(either or survivor, anyone or survivor, former or survivor, latter or survivor, joint).


Nomination facility in mutual funds


 

Investments in mutual fund schemes have grown by leaps and bounds, and particularly post demonetisation. The current corpus under management of mutual funds is at Rs 31.4 trillion as on 31-3-2021.

 

Nomination is possible for mutual fund holdings. Nomination made by a mutual fund investor is applicable for units held in all the schemes under the respective folio/account and gets rescinded on redemption of such units or its transfer.

 

There is flexibility to specify up to three nominees, and in case of multiple nominees, the mutual fund investor can specify the percentage of share of each nominee with such allocation/share being required to be in whole numbers without any decimal. In the event percentage allocation is not specified, the presumption of equal division among the nominees applies.

 

Individuals who are joint investors in mutual fund (irrespective of the mode of operation) are also permitted to make nominations, being required to do so jointly.

 

Nominations can be made only by individuals. Non-individuals including a society, trust, body corporate, partnership firm, karta of Hindu Undivided Family, a power-of-attorney holder and/or guardian of minor mutual fund investor cannot nominate.

 

Nominations can be in favour of individuals/natural persons, and also the Central Government, State Government, a local authority, any person designated by virtue of his/her office or a religious or charitable trust can be specified as nominees. This is an expanded set of eligible nominees (distinct from nominations permitted for bank accounts or demat accounts).

 

A minor can be a nominee, subject to the name and address of the guardian being provided.

 

Nominations can be varied or cancelled, and fresh nominations made.

 

Uniquely, there is a specification of consequences in case of death of a nominee. In the event of the nominee(s) predeceasing the mutual fund investor(s), the nomination is automatically cancelled. In case of multiple nominations, if any of the nominee is deceased at the time of claim settlement, that nominee’s share would be distributed equally amongst the surviving nominees.

 

Transmission of units in favour of the nominee(s) constitutes valid discharge of the asset management company, the trustee company and the mutual fund. It is important to note that while the nominee is legally entitled to receive the units, the nominee does not constitute the successor or inheritor of such units. The successors or legal heirs (either in terms of the will executed by the mutual fund investor, or as per the personal laws of succession governing the mutual fund investor who dies intestate) are entitled to claim their rightful share from the nominee[18].

 

To claim the units after the death of a unit holder, the nominee has to complete the necessary formalities, such as completion of KYC process, along with proof of death of the unit holder, signature of the nominee duly attested, furnishing of proof of guardianship in case the nominee is a minor, and such other document as may be required for transmitting the units in favour of the nominee(s)[19]. One key element, which appears to be excessive or contributing to avoidable friction is requirement of attestation of nominee’s signatures. When the transmission amount is up to Rs 2 lakhs, the attestation by a Bank Manager is required in a prescribed form, and when the transmission amount is more than Rs 2 lakhs, the attestation by a notary public or a Judicial Magistrate, First Class (JMFC) is required. Attestation requirements also extend to various documents including bank passbook/bank statement, death certificate and so on, all of which appear excessive and could be dispensed with.

 

It is also important to note that when units in mutual fund schemes are held in a depository or a demat account, the nomination details provided to the depository/depository participants will be applicable to such units and govern the transmission.

Table 3: Mutual fund folios/accounts

In the event of: Transmission in favour of:
Nomination provided Nomination not provided
Death of single holder Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)
Death of one of the joint holders Surviving joint holder(s) Surviving joint holder(s)
Death of all the joint holders Nominee(s) Legal heirs (as per succession certificate/probate/letters of administration)

 

As can be noted, the mutual funds permit more than one nominee (though imposes a limit of three nominees). It permits percentage allocation among the nominees for the units held in the folio/account (in the aggregate and not individually).

 

One reform to consider would be to do away with the limitation of three nominees. It would facilitate mutual fund investors being able to specify multiple nominees without limitation (while continuing with the percentage allocation of the money among them). Such a change would allow the mutual fund investors to specify, as far as possible, their legal heirs as nominees together with the percentage allocation among them. It would help reduce or remove possible friction and burden that the nominees carry in having to deal with the legal heirs, successors and claimants. Nonetheless, flexibility of having up to three nominees is certainly better than one.

 

One further reform to consider is doing away with a choice not to furnish a nomination. As previously noted, it is your columnist’s view that it would be particularly foolish and indeed downright mean for mutual fund investors to not use the nomination facility. It would leave the survivors and successors facing a needless, time-consuming and daunting process of obtaining a succession certificate or court orders (in case of intestate succession) or probate or letters of administration, with attendant costs and efforts. Having chosen to invest and create assets in form of units of mutual fund schemes, it would be prudent and practical to utilise the nomination facility.

 

Finally, enabling e-nomination facilities could greatly boost specifying nominee(s). Either the mutual fund industry and AMFI – the Association of Mutual Funds in India – could harness the provisions of the Information Technology Act of 2000 and the various mechanisms specified therein for concluding contracts, for completion of the nomination forms and submission through authenticated means and will be legal, valid and effective. Adoption of such means – Aadhaar-based eSign, or OTP-based confirmation or simply undertaking the nomination after authentication of credentials of the internet site or mobile app of the AMC – would also mean that requirement of witness if any can be dispensed with. Alternatively, SEBI could specify e-nomination norms for mutual funds akin to the norms specified for demat accounts.

 


Joint ownership and operation of mutual fund investments


Individuals can jointly own units in mutual fund schemes, subject to a limit of three joint owners.

 

In keeping with the recommendation of lifting the limit of number of nominees, it would be appropriate to also recommend lifting the limit of number of joint owners of units in mutual fund schemes.

 

In case of death of any one joint owner, the rule of survivorship will be applicable. To briefly recap, this means that the surviving joint owners get the legal title to the units of the mutual fund scheme. While the surviving joint holders are legally entitled to the units of the mutual fund scheme, the survivors may not constitute the successors or inheritors of such units. The successors or legal heirs (either in terms of the will executed by the deceased joint holder, or as per the personal laws of succession governing the deceased who dies intestate and subject to the arrangements among the joint holders) are entitled to claim their rightful share from the survivors[20].

 

Akin to bank accounts, the folios/accounts and the units held in such folios/accounts continue to operate without any issue, and only the details of the holders – nominees in case of sole mutual fund investor, or the surviving joint holder/s – get updated.

 

Mutual funds permit “either or survivor” mode of operation when investments are jointly held, thereby providing flexibility for the investors in transacting. The exception is making nominations, which have to be jointly made.

 

Summary of reforms recommended for mutual fund investments

Permit multiple nominees (doing away with current limitation of three nominees).
Removal of choice of opting out from making nomination.
Permit multiple joint owners (doing away with current limitation of three joint owners).
Removal of attestation requirement for signatures of nominees or of documents submitted by nominees regardless of amounts that are to be transmitted.

 


Concluding remarks


As would be appreciated, there are very many similarities (and the differences are less apparent) in the nomination facilities, and joint holdings of financial products. These similarities and differences can have significance for orderly claim by nominee or survivors, and due discharge of the financial institutions. In many senses, the system may be efficacious, but quite tedious, time consuming, and also containing many pain points, friction and overall stressful to the nominees and claimants navigating the process. The financial institutions which have to process such claims also are hidebound to adhere to rules framed in a different era and time, running the risk of not securing due discharge and/or regulatory reprimands or penalties if deviate from such rules.

 

For anyone who has lost a loved one and is coping with an unfamiliar and difficult process, aggravated by the circumstances Covid-19 has brought, if financial sector regulators and financial institutions can consider reforms for further easing the pain, the friction and the efforts that survivors make in accessing the financial assets of the deceased, it would be highly commended and appreciated.

 

Adopting the best features regarding nominations or joint holdings as outlined above for each type of financial product would appear the easiest way forward.

 

Additionally, a few of the limitations – number of joint owners or number of nominees – most likely come from a technology system design perspective, where the record-keeping capability or capacity perhaps acted as the reason for the limits. In case of bank accounts, it is in fact coded into the statute. In real life and for assets such as real estate or physically held securities, such limits do not apply. The technology and systems should accordingly adapt and be upgraded to enable individuals and families to deal with financial assets in the mode, manner and extent that they desire.

 

It is time for society to be fair-minded to its financial consumers and their nominees, successors and survivors at the time they most need solace and support.


†  Group General Counsel at ICICI Bank. His Linkedin profile can be accessed HERE

Disclaimer: Views in this article are his personal views.

*Vanaj Vidyan, student of RMLNLU has assisted in the research of the article.

[1] Governed by S. 45-ZE of the Banking Regulation Act, 1949.

[2] Governed by S. 45-ZE of the Banking Regulation Act, 1949.

[3] See <HERE>; Vide Noti. No. S.O. 264(E), dated March 29, 1985, published in the Gazette of India, Extra., Part II, S. 3(ii), dated 29th March, 1985, pp. 10-18.

[4] S. 45-ZA(4) of the Banking Regulation Act, 1949.

[5] Proviso to S. 45-ZA(4) of the Banking Regulation Act, 1949; also specification in the will that the nominee is the beneficiary can obviate challenges or issues from arising.

[6] S. 45-ZB of the Banking Regulation Act, 1949.

[7] Proviso to S. 45-ZB of the Banking Regulation Act, 1949.

[8] In case of jointly operated lockers i.e. by two or more individuals jointly, such hirers may nominate one or more persons to whom, in the event of the death of such joint hirer or hirers, the bank may give, jointly with the surviving joint hirer or joint hirers, access to the locker and liberty to remove the contents of such locker.

[9] Banks as such do not take notice of any rival claimants to the monies even if notified though would take note of a decree, order, certificate or other authority from a court of competent jurisdiction relating to such money if is duly notified or served on the bank.

[10] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising.

[11] NSDL: National Securities Depository Ltd., and CDSL: Central Depository Services (India) Ltd.

[12] 55,127,436 as of 31-3-2021 for the detail oriented.

[13] Akin to nominations for bank accounts excluding non-individuals.

[14] Specification in the will that the nominee/s is the beneficiary/ies can obviate challenges or issues from arising.

[15] See <HERE>.

[16] On account of minors incapacity to enter into contracts.

[17] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising; one other potential challenge that should be considered is how the surviving joint holders get along (or do not), and hence segregating securities into distinct demat accounts with one joint holder each could be a better approach (unless securities level nomination is permitted).

[18] Specification in the will that the nominee/s is the beneficiary/ies can obviate challenges or issues from arising.

[19] See Here

[20] Specification in the will that the joint owners or surviving joint holders are the beneficiaries can obviate challenges or issues from arising; one other potential challenge that should be considered is how the surviving joint holders get along (or do not), and hence segregating the mutual fund holdings into distinct folios with one joint holder each could be a better approach.

Case BriefsSupreme Court

Supreme Court: In a case where the Kerala High Court had refused to entertain the plea of Saritha Nair who was disqualified from contesting the elections on the ground that she was convicted in 2 criminal cases, the 3-judge bench of SA Bobde, CJ and AS Bopanna and V. Ramasubramanian*, JJ has held that though the High Court was right in not taking up the election petition but the ground on which it rejected the petition i.e. incurable defects, was wrong.

The Court held that when the petitioner was disqualified from contesting the elections in terms of Section 8(3), she could not have maintained an election petition as “a candidate at such election” in terms of Section 81(1) of the Representation of the People Act, 1951.

Background

In the 2019 Lok Sabha Elections, Saritha Nair filed her nomination on 04.04.2019 in the Ernakulam Constituency. She was to contest as an independent candidate. On 06.04.2019 the nomination of the petitioner was rejected on the ground that she was convicted in 2 criminal case and was sentenced to imprisonment for 3 years in each of those cases by judgments dated 08.06.2015 and 16.02.2016. While she did not dispute the fact of her conviction, it was the case of the petitioner the suspension of her sentence by an appellate/revisional court was enough to save her from the applicability of Section 8(3).

She also filed her nomination from one more constituency, namely Wayanad Constituency and her nomination was rejected even in the said Constituency, for the very same reasons.

She further argued that she had simultaneously filed a nomination in the Amethi Constituency of Uttar Pradesh and that despite disclosure of the very same information about her conviction and pendency of appeals, her nomination was accepted there. Therefore, she contended that 2 different yardsticks cannot be applied.

Grounds for rejection of the Election Petition by the High Court

(i) Lack of proper verification;

(ii) An incomplete prayer; and

(iii) Allegations of serious nature made against the former Chief Minister with a possible leverage not to own up the pleadings.

Analysis

Were the defects incurable?

“A defective verification is a curable defect. An election petition cannot be thrown out in limine, on the ground that the verification is defective.”

The Court held that the High Court committed a grave error in holding the aforementioned 3 defects as incurable. The defects are curable and an opportunity to cure the defects ought to have been given to the petitioner.

Further, the High Court was wrong in thinking that the defective verification of the election petition was a pointer to the game plan of the election petitioner to disown the pleadings at a later stage, especially after making serious allegations against the former Chief Minister.

“If only the High Court had given an opportunity to the petitioner to cure the defects in the verification and if, despite such an opportunity, the petitioner had failed to come up with a proper verification, the High Court could have then held the petitioner guilty of playing hide and seek. The failure of the High Court to give an opportunity to cure the defects is improper.”

The Court, hence, held that though the election petitioner should have been more careful and diligent in incorporating an appropriate relief and making a proper verification but no motives could have been attributed to the petitioner, only because she made serious allegations against someone.

Is suspension of sentence enough to save the petitioner from disqualification under Section 8(3) of the RP Act?

The appellate Court in one case and the revisional Court in another case had suspended only the execution of the sentence of imprisonment and not the conviction. The contention of the petitioner was that the suspension of the sentence was sufficient to save her from the applicability of Section 8(3).

Section 8(3) deals with two aspects:

(i) the conditions for disqualification; and

(ii) the period of disqualification.

The conditions for disqualification are

(i) conviction for any offence other than an offence referred to in Subsections (1) and (2); and

(ii) sentence of imprisonment for not less than two years.

In so far as the period of disqualification is concerned, Section 8(3) says that the disqualification will commence from the date of conviction. This is made clear by the usage of the words “shall be disqualified from the date of such conviction”. It is needless to state that the words “the date” appearing in Section 8(3) refers to the event of conviction and it is post facto. The disqualification which commences from the date of conviction, continues till the expiry of a period of six years from the date of his release. Hence,

“… the date of conviction is what determines the date of commencement of the period of disqualification. However, it is date of release which determines the date on which the disqualification will cease to have effect.”

Hence, it is clear that the mere suspension of the execution of the sentence is not sufficient to take the rigour out of Section 8(3).

Further, in Lily Thomas it was held that a Member of Parliament or the State Legislature who suffers a frivolous conviction, will not be remediless. The appellate Court has ample powers under Section 389(1) of the Code, to stay the conviction as well as the sentence and that wherever a stay of conviction itself has been granted, the disqualification will not operate.

Hence, the disqualification under Section 8(3) will continue so long as there is no stay of conviction. Since, the petitioner could not obtain a stay of conviction but obtained only a stay of execution of the sentence, her nominations were validly rejected by the Returning Officer.

“Merely because the Returning Officer in Amethi Constituency committed an error in overlooking this fact, the petitioner cannot plead estoppel against statutory prescription.”

[Saritha S. Nair v. Hibi Eden,  2020 SCC OnLine SC 1006, decided on 09.12.2020]


*Justice V. Ramasubramanian has penned this judgment

For petitioner: Advocate D. Geetha 
Case BriefsSupreme Court

Supreme Court:  In a major judgment today, a bench of RF Nariman and S. Ravindra Bhat, JJ has directed all political parties to upload on their website details of pending criminal cases against candidates contesting polls, noting that there has been an alarming increase in criminalisation of politics.

The Court said political parties will also have to upload reasons for selecting candidates with pending criminal cases on their website.

The Court was hearing the contempt petition which brought the Court’s attention to a disregard of the directions of a Constitution Bench of this Court in Public Interest Foundation v. Union of India, (2019) 3 SCC 224 which too cognisance of the increasing criminalisation of politics in India and the lack of information about such criminalisation amongst the citizenry and issued various directions in that regard.

It was brought to the Court’s notice that there has been an alarming increase in the incidence of criminals in politics. In 2004, 24% of the Members of Parliament had criminal cases pending against them; in 2009, that went up to 30%; in 2014 to 34%; and in 2019 as many as 43% of MPs had criminal cases pending against them. The Court, hence, issued the following directions:

1) It shall be mandatory for political parties [at the Central and State election level] to upload on their website detailed information regarding individuals with pending criminal cases (including the nature of the offences, and relevant particulars such as whether charges have been framed, the concerned Court, the case number etc.) who have been selected as candidates, along with the reasons for such selection, as also as to why other individuals without criminal antecedents could not be selected as candidates.

2) The reasons as to selection shall be with reference to the qualifications, achievements and merit of the candidate concerned, and not mere “winnability” at the polls.

3) This information shall also be published in:

    • One local vernacular newspaper and one national newspaper;
    • On the official social media platforms of the political party, including Facebook & Twitter.

 4) These details shall be published within 48 hours of the selection of the candidate or not less than two weeks 4 before the first date for filing of nominations, whichever is earlier.

5) The political party concerned shall then submit a report of compliance with these directions with the Election Commission within 72 hours of the selection of the said candidate.

6) If a political party fails to submit such compliance report with the Election Commission, the Election Commission shall bring such non-compliance by the political party concerned to the notice of the Supreme Court as being in contempt of this Court’s orders/directions.

[Rambabu Singh Thakur v. Sunil Arora, 2020 SCC OnLine SC 178, decided on 1302.2020]

Case BriefsHigh Courts

Madras High Court: A Bench of G.R. Swaminathan and T. Krishnavalli, JJ. refused to entertain a writ petition that challenged the decision of the Returning Officer whereby the petitioner’s nomination filed for contesting by-election was rejected.

The petitioner was a practicing lawyer wanting to contest the by-election for Ottapidaram reserved constituency to be held on 19-5-2019. His nomination was rejected on the ground that he failed to enclose the extract of electoral roll the original Community Certificate before official scrutiny time.

G. Thalaimutharasu, Advocate for the petitioner seriously faulted the conduct of the Returning Officer in hastily rejecting his nomination. Per contra, J. Padmavathi, Special Government Pleader supported the impugned decision.

The High Court found itself unable to agree with the arguments of the petitioner. Relying on the Supreme Court decisions in N.P. Ponnuswami v. Returning Officer, AIR 1952 SC 64Mohinder Singh Gill v. Chief Election Commissioner, (1978) 1 SCC 405; and Manda Jaganath v. K.S. Rathnam, (2004) 7 SCC 492, the High Court noted: “Article 329 of the Constitution contains a blanket bar against entertaining such writ petitions.” Referring to Section 100 of the Representation of the People Act, 1951, it was held that if the petitioner’s nomination was improperly rejected, his remedy is to file an election petition before the Election Tribunal, which in this case will be the High Court. It was held further: “The petitioner will have to necessarily wait for the conclusion of the election process and thereafter, he can challenge the same.” Therefore, the writ petition was dismissed as not maintainable. [P. Singaravel v. Chief Electoral Officer, WP (MD) No. 11505 of 2019, Order dated 02-05-2019]

Patna High Court
Case BriefsHigh Courts

Patna High Court: The Division Bench of Amreshwar Pratap Sahi, CJ and Anjana Mishra, J. dismissed an appeal challenging election of a village mukhiya.

Appellant herein had filed an election petition assailing the election of Respondent 3 as mukhiya of a village on the ground of non-disclosure of his assets and liabilities as per the Bihar Panchayat Raj Act, 2006. This petition was dismissed and the writ petition challenging Election Commission’s order was also dismissed. Hence, the present appeal.

Counsel for the appellant contended that nomination paper of Respondent 3 was improperly accepted as he had not filled up details of his assets and liabilities. An affidavit was filed later declaring such assets and liabilities to supplement respondent’s nomination papers but the same was a manipulated document inasmuch as it had been manually stamped while other documents were stamped through a franking machine.

Learned counsel for the respondent objected to the maintainability of election petition for not being verified in accordance with Rule 108 of the Bihar Panchayat Raj Rules, 2006. Further, the sole ground raised in the petition was non-disclosure of assets; no challenge was raised in relation to the affidavit filed by the respondent. The subject affidavit was accepted with the nomination papers before the Assistant Returning Officer who scrutinized the same and thereafter declared Respondent 3’s nomination valid. The nomination could not have been declared to be valid in the absence of requisite declaration and therefore there was a valid presumption under the law regarding the existence of this fact.

The Court observed that the casual manner in which petition had been verified was a serious defect. Argument regarding the non-existence of affidavit could not have been appreciated without a petition being verified on the basis of records available. Further, once the defense of supplemental affidavit had been raised, then the burden lay on the election petitioner to dislodge the same by summoning the Assistant Returning Officer.  It was held that the acceptance of affidavit by the Returning Officer without any objection from the appellant or election petitioner provided a clear presumption of fact regarding the validity of nomination of Respondent 3. Lastly, since the issue regarding stamping of an affidavit was not pleaded or advanced either before the learned Single Judge or the Election Tribunal, therefore it could not be raised at this juncture.

In view of the above, the appeal was dismissed for being bereft of merits.[Ram Roop Devi v. State of Bihar, 2019 SCC OnLine Pat 44, Order dated 11-01-2019]