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1. LAW RELATING TO INFORMATION TECHNOLOGY by : DR. T.K. JAIN AFTERSCHO ☺ OL centre for social entrepreneurship sivakamu veterinary hospital road bikaner 334001 rajasthan, india FOR – PGPSE / CSE PARTICIPANTS mobile : 91+9414430763

2. My words.... Ours is a great country with immense entrepreneurial potential. However, our legal system and taxation system is so cumbersome that our creativity and talent is wasted / unnecessarily diverted in these sectors. I wish that these are simplified so that an ordinary entrepreneur can understand these without help from any expert.Here I present a few questions on LAW RELATING TO INFORMATION TECHNOLOGY I wish that more people should become entrepreneurs. Let us wish that some likeminded person is able to reach policy making level and is able to change these. An ordinary Indian entrepreneur wishes to remain an honest entrepreneur and contribute to the development of nation, but our systems and processes .. ...

3. What is private key ? “private key” means the key of a key pair, used to create a digital signature. [Section 2(1)(zc)]

4. What is public key “public key” means the key of a key pair, used to verify a digital signature and listed in the Digital Signature Certificate. [Section 2(1)(zd)]

5. What is digital signature? Digital signature (i.e. authentication of an electronic record by a subscriber, by electronic means) is recognised as a valid method of authentication. The authentication is to be effected by the use of “asymmetric crypto system and hash function” , which envelop and transform electronic record into another electronic record. [Sections 3(1), 3(2)]

6. Is electronic matter similar to printed matter? Yes Section 4 of the Information Technology Act, equates electronic record with a manual or typed or printed record.

7. Which is the appelate body relating to internet related matters? Chapter 10 of the Act provides for the establishment of one or more Cyber Regulations Appellate Tribunal and lays down various provisions regarding its jurisdiction, composition, powers and procedure

8. What is the composition of CRAT? Each Cyber Appellate Tribunal is to consist of only one person (called the presiding officer). He must be a person who is, or has been or is qualified to be, a High Court Judge or a person who is, or has been a member of the Indian Legal Service and who has held a post in Grade I of the Service for at least 3 years. The officer will have tenure for 5 years or until he attains the age of 65 years, whichever is earlier

9. What are offences under the act ? 1. Tampering with computer source documents; 2. “Hacking” with computer systems; (See below) 3. Publishing of obscene information in electronic form; 4. Securing access to any computer declared by Govt to be a “protected system”; 5. Misrepresentation about a material fact to,the Certifying Authority; 6. Breach of confidentiality and privacy, of electronic record, book, etc.; 7. Publishing a digital signature certificate, which is false in certain particulars; 8. Knowing, creating, publishing etc. a Digital Signature Certificate, for any fraudulent or unlawful purpose.

10. Who can investigate IT crimes? Only a police officer of the rank of Deputy Superintendent of Police is competent to investigate an offence under the Information Technology Act.

11. What was the judgement of Rediff Communication Ltd. v. Cyberbooth, (2000) (Bombay High Court). The domain name “Rediff” (of the plaintiff) and the domain name “Rediff” (of the defendant) were held to be deceptively similar and capable of causing deception, as the fields of business activity of both the parties were similar.The court granted of a temporary injunction, restraining the defendant from using the name

12. What was the judgement in Yahoo Inc. v. Akash Arora, (1999)(Delhi). The plaintiff’s domain name was “Yahoo”. The defendant’s domain name was “Yahoo India”. The two were held to be similar, even though the defendants had suffixed the word “India”.

13. What is the liability of network service providers? no network service provider shall be liable “under this Act, rule or regulation made thereunder”, for any third party information or data made available by him, if he proves that the offence or contravention was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence or contravention.

14. When is a digital signature supposed to be a secure signature? When it is proved that it: 1. was unique to the subscriber affixing it; 2. was capable of identifying such subscriber; 3. was created in a manner or using a means under the exclusive control of the subscriber and is linked to the electronic record to which it relates, in such a manner that if the electronic record was altered, the digital signature would be invalidated. (Section 15)

15. Name the documents for which registration is compulsory as per sec. 17? Instruments of gift of immovable property non-testamentary instruments

16. Can a gift deed be registered even if the donor does not agree to its registration ? Yes read Kalyan Sundaram Pillai v. Karuppa Mopanar, AIR 1927 PC 42; Venkata Rama Reddy v. Pillai Rama Reddy, AIR 1923 Mad. 282

17. What is the difference between testamentary and non-testamentary document? Testamentary = will non testamentary = which is not related to will

18. Is will required to be registered ? No it is optional

19. What types of documents require registration? A transfer of a decree or order of a court or of any award when such decree or order or award operates to create, declare, etc. any interest of the value of Rs. 100 and upwards in immovable property, requires registration. Non-testamentary documents generally require registration

20. Do the leases of immovable property for any term not exceeding one year and leases exempted under Section 17 require registration ? Optional

21. Does instruments (other than wills) which purport or operate to create declare, assign, limit or extinguish any right, title or interest to or in movable property require registration? Optional

22. Does receipt / payment / transfer/ acknowledgement of value less than one hundred rupees to or in immovable property require registration Optional

23. What is the time limit for registration? A document other than a will must be presented within four months of its execution. (registration of will is optional)

24. Can an unstamped document be registered ? Yes If the document is not sufficiently stamped its presentation is still good presentation though penalty under the Stamp Act can be levied

25. What do do when registration is by a person not authorised to present for registration? 23A provides for the re-registration the document can be presented again for registration by the authorised person

26. When should the docuement prepared out of India be presented for registration? within four months after its arrival in India, registrar may accept such document for registration on payment of proper registration fee. A document executed outside India is not valid unless it is registered in India (Nainsukhdas v. Gowardhandas, AIR 1948 Nag. 110).

27. What should be the place of registration ? Section 28 provides that documents affecting immovable property mentioned in Sections 17(1) and (2) and Sections 17(1)(a)(b)(c) and (cc)(d) and (e), Section 17(2), etc. shall be presented for registration in the office of a Sub-Registrar within whose sub-district the whole or some portion of the relevant property is situated

28. Where can the decree be presented for registration? At the place where the decree is made. If the decree or order does not affect immovable property, it may be presented for registration in the office of any other Sub-Registrar under the State Government at whose office all persons claiming under the decree or order desire it to be registered.

29. Who can present a document for registration? some person executing or claiming under the same, or in the case of a copy of a decree or order, claiming under the decree or order, or the representative or assign of such person, or the agent of such person, representative or assign, duly authorised by power-of-attorney executed and authenticated in the proper manner

30. Is a general power of attorney sufficient for this purpose? No For the purpose of Section 32, a special power of attorney is required as provided under Section 33. A general power of attorney will not do.

31. Is it required that the person should answer the registrar ? Yes For registering a document the persons executing such document or their representatives, assigns or authorised agents must appear before the registering officer within the time allowed for presentation. (Section 34)

32. Who can present a will for registration? The testator, or after his death, any person claiming as executor or otherwise under a will, may present it to any Registrar or Sub-Registrar for registration.

33. What is the procedure for registration of a will ? Any testator may, either personally or by duly authorised agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent, if any, and with a statement of the nature of the document. On receiving such documents, the Registrar on being satisfied shall transcribe in his Registrar Book No. 5, the superscription and shall note the date, time, month, etc. of such receipt and shall then place and retain the sealed cover in his fire-proof box.

34. Can will be withdrawn ? Yes, by the testator

35. If there are two document relating to a property, which one will operate ? As between two registered documents, the date of execution determines the priority. Of the two registered documents, executed by same persons in respect of the same property to two different persons at two different times, the one which is executed first gets priority over the other,even if the former deed is registered subsequently to the later one

36. What is the meaning of qui prior tempore potior est jure ? “he who is first in time is better in law”

37. What will happen in case of non-registration of a document required to be registered ? It will not affect the following : affect any immovable property comprised therein; or confer any power to adopt; or be received as evidence of any transaction affecting such property or conferring such power unless it has been registered.

38. Can a nonregistered document be taken as evidence ? No Section 49: a document which is required to be registered cannot be received in evidence as affecting immovable property

39. Can an unstamped and unregistered instrument be taken as evidence if it is stamped later? Yes an unregistered instrument originally unstamped, if duly stamped subsequently can be admitted in evidence even though it continues to be unregistered for collateral purpose

40. Can an unstamped instrument be taken as evidence ? Never

41. Which are the books kept by registration officers? IN ALL THE REGISTRATION OFFICES Book 1 “Register of non-testamentary documents relating to immovable property”; Book 2 “Record of reasons for refusal to register”; Book 3 “Register of wills and authorities to adopt”; Book 4 “Miscellaneous Register”; Only In the Offices of Registrars Book 5 “Register of deposits of Wills”.

42. WHAT WILL THE REGISTRAR GIVE AFTER REGISTRATION? A Certificate the registering officer shall endorse thereon a certificate containing the word “registered” along with the number, and page of the book in which the document has been copied. The certificate shall be signed, sealed and dated by the registering officer.

43. What does registrar does in case of registration of document related to land ? On registering any non-testamentary document relating to immovable property the Registrar shall forward a memorandum of such document to each Sub-Registrar subordinate to himself in whose sub-district any part of the property is situate. The Registrar shall also forward a copy of such document, together with a copy of map or plan (if any) mentioned in Section 21 to every Registrar in whose district any part of such property is situate.

44. Is registrar supposed to give reason for refusal to register? Yes an order of refusal and record his reasons for such order in his Book No. 2 and endorse the words “Registration refused” on the document; and, on application made by any person executing the document,

45. Are the documents executed in favour of government also supposed to be registered ? No

47. Is a lease less than 1 year required to be registered ? A lease for one year containing an option to the tenant to renew for a further period of one year or any other term is not a lease for a term exceeding one year, and does not require registration under this clause

48. What type of lease is required to be registered ? Under Section 107 of the Transfer of Property Act, a lease of one year or reserving a yearly rent can be made only by a registered instrument. But where the lease is only for one year with a reserved rent for the period for which it has been granted, viz. one year, it does not require registration.

49. When does a lease require registration? if it is from year to year; or if it is for a term exceeding one year; or if it reserves a yearly rent.

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