Consider the purrgil. Naturally self-sufficient space travelers, these majestic creatures metabolize their own hyperfuel by gulping down huge quantities of Clouzon-36 gas. Unfortunately for the humanoids of Solo: A Star Wars Story, obtaining useable hyperfuel requires considerably more effort. In the Imperial Era, coaxium has the power both to liberate and to enslave, and it is coveted by Imperials and Rebels alike. Nearly all of the characters sustain heavy losses from their efforts to profit from this valuable and extremely volatile substance.
Qi’ra’s bid for freedom is just one of many such sacrifices. Without Imperial identity chips, she and Han had no access to the usual means of travel to and from Corellia, their faded industrial homeworld. Short on time to strategize, and on the run from a criminal gang, the White Worms, they attempt to buy their way off the planet by bribing Imperial emigration officer Falthina Sharest. What could go wrong?
A lot, as it turns out. Although the two “unauthorized travelers” correctly peg the overworked and underpaid Sharest as a willing mark, they fail to make it through the gate before members of the White Worms catch up to Qi’ra. Cornered, Sharest has to make a show of doing her actual job. She sounds the alarm, cutting off Qi’ra’s chance at freedom and diverting the Stormtroopers’ attention away from the vial of coaxium she just pocketed.
What legal consequences did Sharest risk by taking the coaxium in exchange for allowing unauthorized travel off of Corellia? Let’s explore.
Assuming Imperial law is similar to U.S. federal criminal law, Sharest risked being convicted of a felony offense if her actions were discovered. Conviction would most likely result in a significant prison term, up to 15 years. Exactly how long depends on how the court exercises its discretion to apply the Federal Sentencing Guidelines.
Here, all three elements are easily satisfied. A “public official” includes any officer, employee, or person “acting for or on behalf of the United States, or any department, agency or branch of Government thereof[.]” Assuming an equivalent Imperial definition, Lead Transport Security Officer Sharest clearly qualifies. See Becharias v. United States, 208 F. 143, 143-44 (7th Cir. 1913) (immigration inspector is a public official). She agrees to accept and actually accepts the coaxium, which is worth “five, six hundred credits,” “at least seven hundred credits,” or “at least eight hundred credits” – give or take. She appears to have a duty to deny passage to those without Imperial identity chips, which she violates by agreeing to allow Han and Qi’ra through the gate in exchange for the coaxium. The only real question would be the length of her prison sentence.
The Sentencing Guidelines assign sentencing ranges using 43 different levels. The higher the level, the more severe the offense. Under the Guidelines, the base offense level for bribery when the defendant is a public official is 14. Assuming Sharest had no prior criminal history, this would put her in Sentencing Zone D with a range of 15 to 21 months.
However, the base level can be adjusted up or down according to various mitigating and aggravating factors. Of concern for Sharest is whether her base offense level could be increased by 4 if she were determined to be “in a high-level decision-making or sensitive position,” meaning a position “characterized by a direct authority to make decisions for, or on behalf of, a government department, agency, or other government entity, or by a substantial influence over the decision-making process.” See Commentary, U.S. Sentencing Guidelines Manual § 2C1.1 (2016). Here, Sharest has at least some discretion to decide who is allowed to travel and who is not. See U.S. v. Reneslacis, 349 F.3d 412, 416 (7th Cir. 2003) (although officer “did not have a particularly lofty position within the INS, he did hold a sensitive post”). This would increase her base range to 27 to 33 months – not the kind of “leveling up” Sharest wants.
This is just one example – Sharest could certainly face other government efforts to increase her base offense level. In addition to being fined and incarcerated, Sharest may be disqualified from holding “any office of honor, trust, or profit” if convicted. See 18 U.S.C. § 201(b).
Could Han and Qi’ra face prosecution under this same statute? Of course. Section 201(b)(1) of Title 18 criminalizes giving, offering, or promising anything of value to a public official for the same corrupt purposes identified above. But, the potential 15-year sentence pales in comparison to the potential death sentence Han would face for desertion during wartime. See UCMJ, Art. 85, 10 U.S.C. § 885. And the idea that Crimson Dawn would simply hand over one of its top lieutenants to face imperial charges? I’m not very optimistic about those odds.
Sharest’s willingness to take the coaxium suggests she probably knows someone who can fence it for her. Actually selling it to a fence could land her in hot water again. Sale of stolen goods worth more than $5000 is a felony where the stolen goods have crossed a state or United States boundary and are known to be stolen. See 18 U.S.C. § 2315.
A single vial of coaxium valued at 500-800 credits may not be enough to meet the federal statutory minimum, even assuming a relatively generous exchange rate of $1.50 per credit. Nevertheless, if Corellian law were similar to California law, the receipt or sale of stolen property still may be punished under the Corellian equivalent of California Penal Code section 496.
Section 496 makes sale of property known to be stolen a “wobbler,” meaning it can be charged either as a felony or a misdemeanor. Here again, the value of the coaxium may come into play, as the statute provides that if the property’s value does not exceed $950, the offense is a misdemeanor, provided the defendant has no disqualifying prior convictions.
Though Sharest may argue she didn’t know Han stole the coaxium from the White Worms, knowledge may be inferred from the circumstances, and Sharest witnessed two members of the White Worms grab Qi’ra and drag her away. And presumably, it is common knowledge that the White Worms are a criminal gang, who likely did not come by the coaxium through legitimate means. All things considered, life on Corellia must be dismal indeed for Sharest to risk her liberty, her position, and possibly her life (at the hands of the White Worms), to squeeze a relatively modest amount of extra credits out of a pair of orphan scrumrats.
To view more Star Wars themed blogs visit The Legal Geeks.
Christine is a dedicated trial lawyer who enjoys untangling the complexities of the law. Her law practice emphasizes business and constitutional litigation, including privacy claims, contract disputes, unfair competition, fraud, trade secret misappropriation, and other business torts.


Inmate Theodore Howard is confined at the United States Penitentiary-Big Sandy in Inez, Kentucky. Proceeding without an attorney, Howard filed a civil rights action against a federal official pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). [R. 1]. Defendant, Lana Lackey, has filed a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). [R. 22]. Howard has filed a response [R. 28] and Lackey has filed a reply. [R. 29]. Thus, this matter has been fully briefed and is ripe for review.
For the reasons set forth below, the Court will grant Lackey's motion to dismiss and dismiss Howard's claims.
Although Howard's handwritten Complaint is somewhat difficult to read, from what the Court is able to ascertain, Howard alleges that, in 2014, he was attempting to pursue claims of prosecutorial misconduct and ineffective assistance of counsel claims in his underlying criminal case, United States v. Howard, No. 1:07-cr-674-2 (N. D. Ill. 2007), via a petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2255, United States v. Howard, No. 1:13-cv-7819 (N.D. Ill. 2013). [R. 1 at p. 2]. In connection with these efforts, Howard alleges that, on or about May 27, 2014, he was sent trial and sentencing transcripts from the United States District Court for the Northern District of Illinois. [Id.]. According to Howard, Defendant Lana Lackey, a legal mail secretary at USP-Big Sandy, signed the USP-Big Sandy legal mail log book for the transcripts, but failed to tender these transcripts to Howard. [Id.]. Howard claims that an investigation into the matter made at his request showed that Lackey lost, misplaced, or discarded the transcripts that were sent to him from the federal court in Illinois. [Id. at p. 3]. Howard alleges that Lackey has violated the Bureau of Prisons (“BOP”) Program Statement 5800.10 for inmate-legal mail procedures, as well as 18 U.S.C. §§ 1701, 1702, and 1703, all in violation of his rights to receive mail under the First, Fourth, and Fourteenth Amendments to the Constitution. [Id. at p. 4, 8]. Howard seeks monetary damages. [Id. at p. 8].
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) tests the sufficiency of the plaintiff's complaint. Gardner v. Quicken Loans, Inc., 567 Fed.Appx. 362, 364 (6th Cir. 2014). When addressing a motion to dismiss, the Court views the complaint in the light most favorable to the plaintiff and accepts as true all well-pleaded facts in the complaint. D'Ambrosio v. Marino, 747 F.3d 378, 383 (6th Cir. 2014). Because the plaintiff here is proceeding without the benefit of an attorney, the Court reads his complaint to include all fairly and reasonably inferred claims. Davis v. Prison Health Servs., 679 F.3d 433, 437-38 (6th Cir. 2012).
A complaint must contain allegations, either expressly stated or necessarily inferred, with respect to every material element necessary to sustain a recovery under some viable legal theory. Philadelphia Indem. Ins. Co. v. Youth Alive, Inc., 732 F.3d 645, 649 (6th Cir. 2013). But the complaint must be dismissed if it undoubtedly fails to allege facts sufficient to state a facially-plausible claim. Republic Bank & Trust Co. v. Bear Stearns & Co., Inc., 683 F.3d 239, 247 (6th Cir. 2012). A complaint may be dismissed for failure to state a claim if “it fails to give the defendant fair notice of what the...claim is and the grounds upon which it rests.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)(citations omitted).
First, to the extent that Anderson's Complaint alleges violations of 18 U.S.C. §§ 1701, 1702, and 1703, these are criminal statutes prohibiting the obstruction of mail and do not give rise to a private cause of action. See Miles v. Bottom, 2016 WL 2344222 at *4 (E.D. Ky. 2016)(“Because a private citizen lacks a judicially cognizable interest in the criminal prosecution of another, a civil plaintiff has no standing to assert a claim arising under a criminal statute.”)(citing Linda R.S. v. Richard D., 410 U.S. 615, 619 (1973); Chrysler Corp. v. Brown, 441 U.S. 281, 316 (1979)). See also Woods v. McGuire, 954 F.2d 388, 391 (6th Cir. 1992)(federal courts have uniformly held that there is no private right of action under 18 U.S.C. § 1703); Berlin Democratic Club v. Rumsfeld, 410 F.Supp. 144, 162 (D.D.C. 1976)(“Section 1702 is purely a criminal statute and cannot support a civil cause of action.”).
Next, although it is not entirely clear given the difficulty of reading Anderson's handwriting, it appears that Anderson may reference the Fourth and Fourteenth Amendments of the United States Constitution in his Complaint. [R. 1 at p. 8]. However, to the extent that Anderson is attempting to suggest that Lackey “seized” his mail in violation of the Fourth Amendment, “the Fourth Amendment does not apply to searches of prison cells or seizures of property within them.” Simmons v. Szelewski, 642 Fed.Appx. 95, 99 (3d Cir. 2016) (citing Hudson v. Palmer, 468 U.S. 517, 533 (1984)); Shakur v. Coelho, 421 Fed.Appx. 132, 133 (3d Cir. 2011). This is so because “[t]he recognition of privacy rights for prisoners in their individual cells simply cannot be reconciled with the concept of incarceration and the needs and objectives of penal institutions.” Hudson, 468 U.S. at 526.
In addition, Anderson fails to allege any facts to support a Fourteenth Amendment Claim for violation of his due process or equal protection rights. Generally, pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007). Even so, the principles requiring generous construction of pro se pleadings are not without limits. Wells v. Brown, 891 F.2d 591, 594 (6th Cir. 1989). The Court has an obligation to liberally construe a complaint filed by a person proceeding without counsel, but it has no authority to create arguments or claims that the plaintiff has not made. Coleman v. Shoney's, Inc., 79 Fed.Appx. 155, 157 (6th Cir. 2003) (“Pro se parties must still brief the issues advanced with some effort at developed argumentation.”); Superior Kitchen Designs, Inc. v. Valspar Indus. (U.S.A.), Inc., 263 F.Supp.2d 140, 148 (D. Mass. 2003) (“While the allegations of the complaint are construed favorably to the plaintiff, the court will not read causes of action into the complaint which are not alleged.”). Thus, Anderson's failure to allege any facts that would give rise to a Fourteenth Amendment claim is a sufficient reason to dismiss this claim.
Moreover, the Supreme Court has expressly held that where a constitutional claim is covered by a specific constitutional provision, the claim must be analyzed under the standard appropriate to that specific provision, not under the broad rubric of substantive due process. County of Sacramento v. Lewis, 523 U.S. 833, 843 (1998); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (“Where a particular Amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing these claims.”). “A prisoner's right to receive mail is protected by the First Amendment.” Sallier v.


Complicated Interpleader Dispute Still Results In Interest Accrual Result Described Above.
Wertheim, LLC v. Currency Corp., Case No. B270926 (2d Dist., Div. 5 Aug. 25, 2017) (unpublished) involved a complicated interpleader/postjudgment dispute between various parties, among which was an insurer of an appeal bond in favor of plaintiff Wertheim. For purposes of this blog, Wertheim won a postjudgment accrual of interest issue that implicates attorney’s fees and costs. Specifically, the Court of Appeal concluded that interest begins to accrue on an initial judgment amount, even if it is later amended to include significant costs and attorney’s fees. However, in an interesting twist, the appellate panel concluded interest stopped once the appeal bond surety tendered a rejected check to the superior court during convoluted proceedings, although it did agree that simply obtaining an appeals bond was not the equivalent of a tender or payment of the judgment for purposes of stopping interest accrual.
Plaintiff’s Attempt To Depose Hyundai CEO For $462.50 Did Not Impress Appellate Court, Much Less Hyundai’s Emergency Stay Request.
Here, plaintiff brought a lemon law case against Hyundai, eventually accepting a defense 998 offer by which the car would be returned, the lawsuit dismissed, Hyundai would pay certain money back to the car buyer and lienholder, and the buyer’s attorney’s fees and costs would be determined by court motion. Plaintiff eventually accepted a check in payment of the 998 amount, then moving for recovery of $60,536 in fees and interest. The trial judge awarded $42,203 in fees, denied the interest request, and dismissed the case, prompting an appeal by plaintiff from the dismissal minute order.
Subsequently, Hyundai tendered $42,203 in payment of the fees award, but plaintiff claimed it was short on post-award interest of $462.30. The appellate court later informed plaintiff it might dismiss the appeal, but plaintiff rectified by this by filing a proposed judgment resulting in issuance of a formal judgment of dismissal. Plaintiff then sought to depose Hyundai’s CEO in a debtor judgment exam after incurring another $13,000 for additional interest and fees relating to the $462.50 interest claim. (As the appellate panel noted, the $13,000 claim was “one of the best growth investments we have seen.”) This prompted Hyundai to file a writ and seek an emergency stay relating to the debtor exam, with the stay being granted pending further order of the appellate court.
Hyundai won its writ petition claiming that the debtor exam was unnecessary because no interest was due on the satisfied fee award. This was so because postjudgment interest only accrues, by law, on a final judgment. (Code Civ. Proc., § 685.020; Civ. Code, §1794(d).) The only final judgment was the judgment of dismissal, not the prior minute order. The fee award has already been paid before the judgment of dismissal was entered, so no interest was due.
However, the writ panel publishing this decision—Justices Rylaarsdam, Aronson, and Thompson—did caution both sides about contesting such small interest and seeking an emergency writ stay (versus Hyundai seek a protective order based on the debtor exam being akin to an “apex” deposition).
Court of Appeal Did Affirm 998 Cost-Shifting As To Rejected 998 Offer.
In Bean v. Pacific Coast Elevator Corp., Case No. D064587 (4th Dist., Div. 1 Mar. 10, 2015) (partially published; prejudgment interest on costs discussion published/998 costs discussion not published), plaintiff won a substantial $1.271 damages award resulting from a rear end vehicle accident against an employer whose employee ran into him. The lower court later awarded costs under CCP § 998 as well as prejudgment interest on those costs.
The appellate court affirmed all rulings, but the prejudgment interest on routine costs. It determined that prejudgment interest is only allowable as to damages under Civil Code section 3291, with damages being much different than routine costs.
The 998 cost shifting in favor of plaintiff was also sustained. The defense rejected a $999,999 section 998 offer from plaintiff, with plaintiff recovering $1.271 million after a trial. The 998 offer was “spot on,” with the defense having enough medical evidence and indication that plaintiff’s injuries were serious so as to support the conclusion the offer was reasonable and made in good faith.
. . . Unless Retainer Agreement Requires Otherwise.
Hernandez v. Siegel, Case No. A139653 (1st Dist., Div. 5 Sept. 30, 2014) (published) decided, unless a client-attorney retainer agreement dictates otherwise, post-judgment interest on a fee award and routine costs generally are interests vested in the attorney, rather than the client. The appellate court placed great reliance on Flannery v. Prentice, 26 Cal.4th 572 (2001) in reaching its result on the fee post-judgment interest issue.
The First District, Division 5 in Lucky Unified Properties Investments, Inc. v. Lee, Case No. A132914 (1st Dist., Div. 5 Feb. 4, 2013) (partially published) provided clarity on the issue of when interest begins to run on postjudgment fee/costs awards where the fees/costs were incurred postjudgment or on appeal. The appellate court determined that, in both cases, interest began to run from the date of “fixing” of the postjudgment cost/fee awards, not earlier. Although determining that a trial court award of fees and costs for appellate work is incorporated into the original judgment for enforcement purposes, interest does not begin to run until the date that the appellate costs/fees are “fixed” by the lower court.
Appellate Court Dismisses Applying Perdue in California State Court Cases and Affirms that Interest Ran From Date of Remanded New Fee Determination.
In our March 31, 2009 post, we extensively discussed Khazan v. Braynin (Khazan II), an unpublished appellate court decision where the First District, Division 4 remanded a fee award because it felt some apportionment and relook at the degree of success justifying the fees actually awarded was warranted on the part of the lower court. It also wanted the lower court to consider when interest should run -- from the date of earlier awards or the date of the new fee decision on remand.
We can now report that the trial judge did award significant fees to prevailing plaintiffs, to the tune of $1,370,604, under Civil Code section 1717 based on a fees clause, apportioning out some time and also considering the degree of success. The judge also found that the prior appellate opinion was a reversal, so interest on the fee award ran from the date of its new fee decision on remand. The appellate court was happy with these determinations, affirming in Khazan v. Braynin (Khazan III), Case No. A128536 (1st Dist., Div. 4 Sept. 12, 2012) (opinion following rehearing).
Two points caught our eye in Khazan III.
Also Rejects Application of Perdue v. Kenny A. To State Cases Involving Lodestar Multipliers.
Khazan v. Braynin, Case No. A128536 (1st Dist., Div. 4 May 30, 2012) (certified for partial publication; fee interest issue published) is an interesting decision that has a scholarly discussion on when interest begins to run on a fee award. The opinion basically held that Stockton Theatres, Inc. v. Palermo, 55 Cal.2d 439 (1961) is still good law, and that interest accrual timing depends on whether there was a reversal versus just a modification of a prior fee award. If a reversal (as in Khazan, where the fee award papers had to be reconsidered on remand), then interest runs from the new award as compared to interest running from the original award if there was just a modification. Khazan also has an interesting discussion of the federal rule, where there is a split on whether interest runs from the date of a fee entitlement award or from the date of the fixing of the amount of fees, and the differences in rates of interest (10% per year in California state courts versus interest tied to T-bill rate in the federal system).
In the unpublished portion of the case, the appellate court affirmed a substantial lodestar award, reduced by 30% on remand after apportionment of noncompensable or unsuccessful claims, and then enhanced by a 1.5 multiplier (for a total award of $1,115,204 to the lead counsel). The interesting aspect of the discussion here is that the appellate court rejected application of Kenny A. v. Perdue, 130 S.Ct. 1662 (2010) to state multiplier situations, finding that the considerations in federal fee-shifting cases were distinguishable and that California is more liberal in allowing enhancements.


text:
1.1. These terms and conditions are an integral part of the Agreement entered into between the Client and the Provider, and define binding rules and conditions of providing Services and Products and use of Services and Products. These terms and conditions govern the contractual relationship between Provider of the Service and the Client.
T&C – means these Terms and Conditions.
Agreement – means a Service Agreement entered into between the Client and the Provider.
Client – means an individual conducting business or legal entity entering into Agreement with the Provider.
Provider – means the company Easy Software Ltd., with its seat at Kemp House, 152-160, City Road, EC1V 2NX London, Company ID: 08960980.
Product – means any Service or its part provided under specific Provider’s brand name based on the Provider’s brand policy. The Client is buying the Product AS IS. Support and other services are provided separately.
Price list – means the document or web page, which sets the price of Service and or Product if not stated otherwise in the Agreement.
Implementation Service specification – means the implementations terms and conditions set by the Provider and/or individualized by the Client according to the Agreement. Unless the Client has purchased an Implementation Service or unless explicitly stated, there is no guaranteed Implementation Service included in the price of the Product.
Support Service specification - means the support terms and conditions set by the Provider and/or individualized by the Client according to the Agreement. Unless the Client has purchased a support Service or unless explicitly stated, there is no guaranteed Support Service included in the price of the Product.
Service – means the specific Service provided by the Provider to the Client under the Agreement, and which may include license to the Service, maintenance of the Service, Service support and other related services, to the extend agreed to in the Agreement and Product.
Trial version of the Service – means trial version of the Service, which is made available to the Client free of charge and to a limited extent.
Administrator – means a person designated by the Client for administration of his User Account.
User – means a natural person who works for the Client (as his employee, partner, executive director, a person cooperating with the Client on a long-term basis under the agreement of providing legal services), for which the Client sets up a User Account.
User Account – means user account with a unique access code and password.
Data security system – means a document describing methods of securing data stored in the Service application.
Parties – means jointly the Client and the Provider.
2.1. Service is provided to the Client based on concluded Agreement. Integral parts of the Agreement are these T&C.
2.2. The Agreement is concluded on the day of signature by both Parties. In case the Agreement is concluded through the web interface, the Agreement is concluded upon payment of the price for Service (in case of wireless transfer when the amount corresponding to the price for Services is credited to the bank account of the Provider) in the amount specified in the first billing period. This does not apply if the Client will be using Trial version of the Service under the conditions set in the art. 4 of these T&C.
3.1. The Provider runs the Service at the internet address specified in the Product specification and its subdomains or on Client´s servers according to the Agreement and technical specifications stated in the Product specification.
3.2. The scope of Services is defined in the Product specification, which is attached to the Agreement. Product specification defines the individual partial Services in terms of content and method of activation in details.
4.1. Before the Agreement is concluded the Provider may enable the Trial version of the Service to the Client through the web domain or on Client´s servers, to the extent defined by the Provider.
4.2. By completing the registration form on the web page specified in the Product specification the Client accepts the terms of providing the Trial version of the Service, which are governed by art. 4., art. 7., art. 9., art. 11., art. 12., art. 14. subsection 6, art. 15., art. 16. and art. 17. of these T&C.
4.3. Trial version of the Service is provided to the Client for the period specified in the Product specification, unless the Provider decides otherwise.
4.4. The Client using the Trial version of the Service is entitled to save data, but only for the purpose of verifying system functionality. The Client takes into consideration, that the Provider is not responsible for accessibility and preservation of data saved by the Client by using the Trial version of the Service.
4.5. Prior to the expiration of the Trial version of the Service, the Provider shall enable the transfer to the paid version of the Service to the Client and provides him with non-binding payment information. By paying the price the Service will activate in agreed extent and data saved by the Client in the Trial version of the Service will be transferred to the paid version of the Service. In case that the Client does not use the option to transfer to the paid version of the Service, the provision of the Trial version of the Service ends when the period, for which the Trial version of the Service was provided to the Client, expires.
4.6. The Client takes into consideration that data saved by the Client in the Trial version of the Service will be after expiration of the period, for which the Trial version of the Service was provided, irretrievably erased. The Client will be informed of upcoming expiration of the Trial version of the Services and deletion of the data after its termination by e-mail or via the internet domain of the Trial version of the Service.
5.1. The Agreement stipulates if it was concluded for a definite or indefinite period of time. The Agreement is concluded for (i) definite period of time for Services provided through the web interface and (ii) indefinite period of time for Services provided through the Client´s servers.
6.1. The Client is obliged to pay the price for using the Service based on delivered tax documents (invoices) issued by the Provider. Invoices will be issued in electronic form. Prices for Services are set according to the Quotation or Price list, unless otherwise agreed in the Agreement.
6.2. The debit/credit card and/or other on-line payment method used by the Client to sign up to use the Service (i) provided through web interface and (ii) provided on the monthly subscription will automatically be charged 30 days from the date the Client signed up to use the Service. If the Client wishes to avoid being charged for the Service, the Client will have to cancel the subscription three days prior to the auto-renewal of the Service use. The Provider recommends checking with the pre-paid card company or bank to confirm whether recurring billing is possible.
6.3. The Client may change his subscription online by simply signing in to the Client zone. To avoid getting charged for the next billing period, the Client has to cancel the subscription at least three days before the renewal date. If the Client cancels his subscription at least three days before the renewal date, his subscription will stop at the end of the current billing cycle.
6.4. The order of any Service can be cancelled without additional charges before the payment has been cleared to the Provider‘s account. For downloadable Products, the Provider does not issue ANY refunds after the download channel has been enabled and any download attempt has been made. Cancellation of the order after the payment has been received is possible on agreement, if the ordered Service was not used or no download attempt has been made.
7.1. The Client takes into consideration that all proprietary copyrights and other intellectual property rights to the Service belongs to the Provider. The Client is therefore obliged to use Service only within the scope of the license provided.
7.2. The Client by the conclusion of the Agreement acquires nonexclusive license to the Service for one or more Users depending on the number of established User Accounts. The Client is not entitled to grant or assign license or sub-license to a third party without prior written consent of the Provider. The Client is also not entitled to rent the Service or otherwise make the Service available, both free of charge or for consideration, to the third parties without prior written consent of the Provider. The license also applies for all updates or adjustments to Service that will be performed by the Provider.
7.3. In case the Service is provided on the Client’s server then the Client is entitled to download the source code of the Product. In case the Service is provided through the web interface then the Client has no right to obtain the source code to the Service, nor to view it, modify it, or interfere with it in any way.
7.4. The Client is not entitled to incorporate the Service in another software equipment without prior written consent of the Provider.
7.6. All Provider’s software excluding software defined in art. 7.5. of these T&C is distributed under GNU/GPL 2 license: https://www.gnu.org/licenses/old-licenses/gpl-2.0.en.html.
8.1. The billing period for Agreement concluded for a definite period of time is the period (number of months), for which the Agreement was concluded. The Provider will issue the invoices with the 14 calendar days due date for the Services provided through web interface or email, unless otherwise stated in the Quotation.
8.2. In case the Agreement is concluded for a definite period of time, before that period expires the Provider will send to the Client the non-binding payment information to pay for the Services for the same period of time. In case the price for the Service is paid in accordance with the payment information, the period of provision of the Service will be automatically extended.
8.3. In case of delay in payment of the price for the Service, the Provider is entitled to receive an interest on late payments in the amount of 0,5 % of outstanding amount for each commenced day of delay. If the Client is in delay with any payment, the Provider is entitled to suspend or limit the provision of the Service until the full payment of the debt. For the period of suspension or limitation of provision of the Service, the Client is still obliged to pay the price in accordance with the delivered tax documents. Repeated delay in payment on the side of the Client is considered as a substantial breach of the Agreement.
9.1. The Provider is entitled to make any changes of the Service or to its extent. In such case the Provider shall inform the Client through the web interface related to the provided Service. The Client is entitled to terminate the Agreement in case of unilateral changes to these T&C, which the Client refuses, if agreed in the Agreement.
9.2. The Provider commits to take all steps within his technical possibilities to ensure that the Service is functional and available, if the Client meets basic system requirements for the Services listed in the Product specification or on the relevant web portal. If a non-standard situation related to the functionality of the Service occurs, the Provider shall proceed in particular in accordance with the Agreement.
9.3. If the Client detects any problem related to the speed of the Service or its availability, he is obliged to immediately report this incident to the Provider via e-mail specified tin the Product specification or by phone through contacts available to accelerate the problem solving process. The Client takes into consideration that there may be events beyond control of the Provider, which may influence the functionality or availability of the Service to the User (such as internet connection malfunction on the side of the Client, natural disaster, DOS or DNS attacks on technical equipment of the Provider and others). The Provider does not bear any responsibility for damages that occurs in connection with such events to the Client.
9.4. The Client takes into consideration and agrees that the Provider may for serious reasons temporarily cease to provide the Service, especially in cases such as to prevent cybernetic attacks, if necessary, or in case of serious malfunction of the Service, which needs to be resolved by necessary shutdown. Notification informing about interruption of the provision of the Service must be send to the Client as soon as possible. The Provider is obligated to create adequate operational and safety measures to minimize potential malfunctions or limited or full unavailability of the Service.
9.5. The Provider undertakes that he is not entitled to provide the content of user data to any third party. Furthermore, the Provider agrees to that he is not entitled to edit, censor or monitor any user content.
9.6. The Parties agreed upon that the Provider does not acquire ownership right to the Client´s data. The Client is solely responsible for the content of data stored on the Client’s server or on the Provider’s server.
10.1. The Client shall not use the Service in conflict with generally binding legal regulations.
10.2. To gain access to the Service, the Provider may request some identification data and additional information from the Client. The Client shall provide true, accurate and current information.
10.3. Upon request of the Provider, the Client shall provide necessary cooperation while fixing malfunctions or making adjustments of Service.
10.4. The Client shall use the API interface provided by the Provider only when accessing the Service through the web interface by the third party applications or services. The Client shall not use or access Service in other automated manner, such as through scripts, bots, web crawlers, etc. for Services provided through the web interface.
10.5. The Client shall store the access details to Service in secret, the Client is obliged not to tell or enable access to them to any another person, or in any other way enable access to his User Account to any third party. The Client is also obliged to secure his technical equipment in the reasonably required extent in order to minimize the risk of misuse of access details to the User Account.
10.6. Should the Client violate the obligations imposed in this paragraph, the Provider does not bear any liability for damages, that occurs to the Client, and the Client is solely responsible for damages, that occur to the Provider or third parties. Violation of these obligations, furthermore, establishes the right of the Provider to terminate this Agreement. If the Client discovers that there may be access to the Service to third parties due to the leakage of information about access to the Service, the Client shall report this fact to the Provider via e-mail.
10.7.The download of the software is available only for a specified period of time. After this period, the download account will be automatically disabled. The Provider will NOT provide the source files via an e-mail or any other channel, but only using the online account.
11.1. The Client may have one or more User Accounts. Each User Account can be used by one User only. The Client is not entitled to let the User Account set up for a third party, unless it is determined by the Agreement or by these T&C. The Client is not entitled to share the User Accounts among several Users. However, the Client has the right to transfer the unused User Account to the new User at any time.
11.2. In case of violation of art. 11.1. of these T&C, the Provider is entitled to immediately terminate the Agreement and the Client shall pay unjust enrichment to the Provider within 7 days after receipt of the Provider´s demand for payment.
to choose a different User Account that becomes the Administrator.
12.2. The Client bears full responsibility for using the Service by the Users, actions performed by these Users, and all data uploaded into the account of the Client. The Client shall ensure that all of his Users follow the provisions of these T&C.
13.1. The Client shall not upload, send or otherwise store content in the Service portal that may contain software virus or other files and programs that may destroy, damage or limit the functionality of the equipment of the Provider or other Clients. Furthermore, the Client is not entitled to upload the content to the Service, whose possession or distribution is illegal, content that illegally interferes with copyright of a third party or is part of a criminal activity, to distribute spam through the Service or to try to get access to the User Account of another Client or servers of the Provider. The violation of these obligations is considered as substantial and establishes the right of the Provider to terminate the Agreement and to require the Client to pay the contractual penalty in the amount EUR 10.000,- for each breach and furthermore any potential damage.
14.1. The contractual relationship ends by withdrawal from the Agreement, by expiration of agreed duration of the Agreement, by termination of a legal entity (the Provider or the Client) with liquidation, by termination of the Agreement or by agreement between the Parties.
14.2. If the Agreement is concluded for an indefinite period of time, the Client is entitled to terminated the Agreement without a reason at any time. The notice period is one month and begins on the first day of the calendar month following the delivery of the termination notice to the Provider.
14.3. The Provider is entitled to terminate the Agreement without a reason at any time. The notice period is three months and begins on the first day of the calendar month following the delivery of the termination notice to the Client.
14.4. The Client is entitled to terminate the Agreement in cases specified in art. 9.1. of these T&C.
14.5. Should the Client substantially or repeatedly violate his obligations resulting from these T&C or from the Agreement and fail to remedy this substantial and repeated violation within 14 days after the delivery date of the notice informing about that fact in the form of registered letter or from the date of sending the e-mail notification to the Client, the Provider is entitled to withdraw from the Agreement. The withdrawal is effective on the day following the receipt of the notice on withdrawal to the Client.
14.6. In case that the Client violates obligations resulting from these T&C or from the Agreement in particularly serious manner, the Provider is entitled to withdraw from and the Agreement and terminate the provision of the Service immediately after finding such a breach.
15.1. The Parties agreed to that the total liability of the Provider for any claim made on basis of legal relationship arising from the Agreement and the estimated amount of damages shall not exceed and is limited to the amount equivalent of paid amount for provision of the Service in the previous calendar year. If the maximum damages under the preceding sentence cannot be determined, the maximum damages is limited to the current quarter year fee for specific Services subscribed and provided through the web interface.
15.2. The Provider is not responsible for indirect damages resulting from the provision of Services, such as for lost profits, loss of revenues, loss of data, financial or any indirect, special or consequential damages.In case of force majeure, Parties are quit of its obligations, based on the Agreement, and any non observance (overall or partial) or delay in the fulfilment of obligations imposed by this Agreement, will not be considered violation of the Agreement. For the purpose hereof force majeure shall mean any circumstances where liability is excluded in accordance with Czech law, including, but not limited to natural disaster, war, change of the political situation that precludes or inappropriately impedes the performance of the rights and obligations hereunder or any other similar reason, event or fact.
15.3. By concluding the Agreement, the Client takes into consideration that even with the Provider’s best effort, it is possible that a short–term unavailability of the Service may occur, which is caused by circumstances outside of the Provider’s sphere of influence (e.g. internet connection failure). The Client therefore agrees to and undertakes that all of his data stored within the Service will be backed up on another geographical location(s).
15.4. The Client uses the Service AS IS. Incompatibility with other software, hardware configuration or partial misfunctionality does NOT entitle the Client to cancel the order or get a refund.
16.1. The Client declares that he is aware of his legal obligations as an administrator of personal data of the Users and clients. Method and processing of personal data of these entities within the Service is determined by the Client. The Provider does not bear any responsibility for proper fulfilment of legal obligations of the Client as a personal data administrator.
16.2. All data are collected by the Provider from the Client for the purpose of providing Service, improving its quality and sending commercial and marketing notifications only. If the Client is a natural person, the following data are collected: name, surname, billing address, e-mail, phone number, information on use of the Service.
16.3. All communication within the Service is encrypted by SSL protocol. The Client hereby declares that he considers this method of encrypting sufficiently safe.
16.4. The Provider undertakes that he will not provide any information specified by the Client during the registration of his User Account to any third party, unless the Client specifically agrees to it.
16.5. Clients data are stored in electronic systems of the Provider for the duration of the contractual relationship. After its termination the Provider stores data necessary for regulatory compliance only. The Client agrees that the Provider will use the name and the logo of the Client in the Provider’s clients list for and after the duration of the Agreement, unless otherwise agreed with the Client based on his brand guidelines or policy.
17.1. The Parties undertake to maintain confidentiality about any information that they learned during the contractual relationship under the Agreement.
17.2. The rights of the Client arising from the Agreement and these T&C may not be assigned without prior written consent of the Provider.
17.3. For avoidance of any doubt, the Parties explicitly confirm that they are entrepreneurs and that they conclude this Agreement within their business activity.
17.4. If any provision of this Agreement or these T&C is or becomes invalid, ineffective or unenforceable, such fact shall not affect the validity, enforceability or effectiveness of remaining provisions of the Agreement or these T&C. In such case the Parties are obliged to make every effort to conclude an amendment to the Agreement, by which the invalid, unenforceable or ineffective provision will be replaced by new provision corresponding to the purpose originally intended.
17.6. These T&C are governed by the law of Czech Republic, the member of the European Union. Any dispute arising in connection with or out of the performance or the interpretation of the Agreement, which the Parties cannot settle amicably, shall be finally settled by Czech arbitration body the Arbitration Court attached to Economic Chamber of the Czech Republic and Agrarian Chamber of the Czech Republic by three arbitrators appointed in accordance with the Rules of that Arbitration Court. Each Party shall nominate one arbitrator. Both arbitrators shall agree on the third arbitrator within 30 days. Should the two arbitrators fail, within the above time-limit, to reach the agreement on the third arbitrator, he shall be appointed by the Chairman of the Arbitration Court. The arbitral award shall be final and binding upon the Parties. The Parties hereby irrevocably commit not to challenge the enforcement of the arbitral award under any jurisdiction.
17.7. These T&C come into effect on 1. 7. 2017.
Let us inform you how Easy Software (hereinafter also referred to as “we” or “our Company”) processes your personal data in connection with offering, concluding, providing and maintaining Company products and services.
The purpose of this Principles is to give you information about the particular personal data we collect, how we treat them, what sources we get them from, what purpose we use them for, whom we may provide the data to, where you can obtain information about your personal data we process, or what are your individual rights concerning the protection of personal data.
Our Company is subject to various statutory obligations regarding the processing of client personal data that we must comply with, particularly with regard to fulfilment of our contractual obligations or exercise of official authority. In this regard, we would be unable to provide our products and services at all without being given your personal data. Also, we process personal data of clients beyond the framework of our statutory obligations for the purpose of customer care, and to address you with targeted offers of products and services. We need your consent to do this. If you decide to not grant your consent in these cases, our provided products or services may be limited or otherwise adjusted, depending on the scope of data we are entitled to process. Every client is informed about the scope of limitations or adjustments.
Unless explicitly stated otherwise, all of the information contained herein also applies to the processing of personal data of prospective customers, i.e. persons with whom we are in contact but have not established a contractual relationship yet, as well as former clients. The information contained herein also applies, to a reasonable extent, to the processing of personal data of other persons, with regard to whom the Company has certain obligations, or with whom our Company is in direct contact without being in a contractual relationship with them (such as representatives of legal entities).
(d) At our Company we adhere to adequate technical and organizational measures to ensure a level of security matching all possible risks; all persons who come into contact with client personal data are obliged to keep confidential the information acquired in connection with the processing of such data.
This usually concerns situations where you are obliged to disclose certain personal data to us as a condition to let us provide you with our product or service, or where we are entitled to process your personal data acquired otherwise.
(ii) compliance with archiving obligations.
(b) Conclusion or performance of a contract with you.
(c) Protection of rights and interests protected by law, particularly in respect of resolution of any and all disputes, particularly for the purpose of court or other disputes.
This particularly concerns situations where you voluntarily agree that we process the provided or otherwise acquired personal data. Not granting your consent may be a reason preventing our Company from providing certain products or services or forcing it to reasonably adjust the availability, scope or conditions of provided products and services.
(b) offering of products and services; in particular, this includes distribution of information, offering of products and services of our Company and other parties, including product and service offers targeted at particular clients, all via various channels, such as by mail, electronic means (including electronic mail and messages sent to mobile devices via a telephone number), or by telephone, via a website. To a certain extent, in these cases, our Company is also entitled to offer products and services to clients without obtaining their consent; if implied by the law, you will be informed in this regard about your right to express your disagreement with any further offering of products or services. In this regard, your personal data may also be forwarded to third parties for the purpose of distribution of information and offering of products and services of such third parties. More details are provided below in these Principles.
Our Company processes your personal data to an extent as necessary to meet the above purposes. We particularly process contact and identification data. Detailed information about the scope of processed personal data of clients is stated in Annex 1 to these Principles.
The method how our Company processes your personal data includes both manual and automated processing, including algorithmic processing, in our Company’s information systems.
Your personal data are mainly processed by employees of our Company and, to an extent as required, by third parties. Before any disclosure of your personal data to a third party, we always enter into a written agreement with the third party, containing the same warranties in respect of personal data processing as adhered to by our Company in line with its statutory obligations.
Your personal data are made available particularly to our Company’s employees in connection with performance of their professional duties requiring work with personal data of clients, however only to an extent necessary in the particular case and in compliance with all security measures.
In addition, your personal data are disclosed to third parties participating in the processing of personal data of our Company’s clients, or, such personal data may be made available to them on other grounds in line with the law. Before any disclosure of your personal data to a third party, we always enter into a written agreement with the third party to stipulate the processing of personal data in a way to contain the same warranties in respect of personal data processing as adhered to by our Company in line with its statutory obligations.
other parties to an extent stipulated by legislation, such as to third parties for the purpose of collection of our receivables from clients.
2.5.2. Subject to your consent entitling us to dispose with information representing the personal data to the relevant extent, we also disclose your personal data to Easy Software ltd. for the purpose of distribution of information, offering of products and services of our Company, protection of rights and interests of our Company and customer care.
Your personal data are processed in the territory of the Czech Republic and other states of the European Union where International Group entities are seated and which share the same personal data protection standard as the Czech Republic. Neither our Company nor the entities participating in the processing of client personal data disclose personal data of clients to countries outside the European Union.
(c) customer care are processed over the term of the contractual relationship with the client; then, the relevant personal data are usually usable for ten years.
In this Principles we tried to explain why we need your personal data and that for certain purposes we may process them with your consent only. You are not obliged to grant consent to our Company to process your personal data and you are also entitled to revoke your consent. At this point we would like to remind that we are also entitled to process some personal data for certain purposes without your consent. If you revoke your consent, we will discontinue the processing of the relevant personal data for purposes requiring the relevant consent; however, we may be entitled or even obliged to process the same personal data for other purposes.
(b) refuse to provide you with our products or services once we find out that such consent is necessary to provide the product or service on the given terms.
(c) own activities through processing and evaluation of other personal data of the clients.
(b) request remedy of the defective state; in particular, you may request correction or amendment of the personal data; if needed, the data will be temporarily blocked or destroyed.
If we find your request legitimate, our Company or the third party participating in the processing of data will remove the defective state free of charge and immediately.
In certain cases, our Company also handles client personal data by authorization of another party (another administrator). For example, these cases include cooperation with Easy Software ltd., for third-party products or services, or cooperation with third parties. For detailed information, it is always necessary to contact the particular administrator of personal data, unless our Company is authorized to provide information in the particular case.
As part of customer care, our Company develops technologies to let you use modern electronic means of communication and mobile applications to use our Company’s products and services. In particular, these include services related to the use of the internet, social networks and various mobile applications.
Social networks. Also, you can address us through various social networks. We particularly use these communication channels as marketing tools; our products and services are not provided through social networks at this moment.
These Principles are valid and effective as of ___________. The current version of the Principles is published on our Company’s website and is also available at our branch offices.
Contact data – name, surname, contact addresses, telephone numbers, email addresses or other similar contact data. Other similar contact data may be IP address of used computer and files of specific authentication data we agree to use.
In the event that you withdraw a submitted application for a product or service, we also process the application withdrawal date along with the data provided before the withdrawal.
(ii) records of your preferred communication language, expressed interest in a product or service, your investment strategies, or your specific requirements disclosed to us.

matches:
art. 4
art. 4
art. 7
art. 9
art. 11
art. 12
art. 14
art. 15
art. 16
art. 17
art. 7
art. 11
art. 9


text:
For the Petitioner: M.A. Rane with Madhav Jamdar, Advocate. For the Respondent: Narendra V. Walawalkar and P.L. Naik, Advocates.
SORRY! You need to be a member to access this feature!
Shri Vasant Rajaram Narvekar, the original plaintiff in Regular Civil Suit No. 71 of 1975 on the file of Civil Judge Junior Division. Malvan. District -Sindhudurga has preferred this Second Appeal against the judgment and decree passed by the Assistant Judge, Ratnagiri in Civil Appeal No. 113 of 1978 on 17th April. 1984.
The present appellant Shri Vasant Rajaram Narvekar is son of Shri Rajaram Laxman Narvekar. Smt. Bhagirathi is the wife of the said Rajaram Laxman Narvekar. Defendant No. 1 Ankush, defendant No. 9 Yashwant and defendant No. 10 Prabhakar are brothers of the appellant Vasant Rajaram-Narvekar and they are sons of Rajaram and Bhagirathi Rajaram Narvekar. These four brothers have got 2 sisters by name Asha and Gulab. Asha was married to Sitaram Phansekar. She lost her husband in the year 1950 and then she returned to her parental house and she entered the witness box as P.W. 1 as the plaintiff's witness No. I to support the claim of the original plaintiff-appellant Vasant Rajaram Narvekar.
3. The property in dispute is a land and a house building standing thereon situated within the Municipal limits of Malvan. The said property is bearing Municipal House No. 2794. The appellant-original plaintiff has come before the Court with a case that the suit property is donated. Defendant No. 2 is wife of the defendant No. 1 Ankush. It is the claim of the plaintiff that defendant Nos. 1 to 8 are wrongfully in occupation and possession of the portion of the said house property. Though he had asked them to vacate the said property, they are not ready and willing to vacate the same. He, therefore, brought the present suit to get declaration that he is the owner of the suit property and to get a decree of possession against defendant Nos. I to 8 and to get a decree of perpetual injunction restraining them from disturbing his possession Vahiwat of whole of the suit property.
exclusively no right title or interest as claimed by him. Therefore, in the circumstances, the plaintiff is not entitled to get a decree sought for, and therefore, the suit of the plaintiff be dismissed with costs. Defendant Nos. 2 to 8 have adopted his contentions by filing purshis at Exhibit 22. Defendant No. 9 though duly served remained absent. Whereas defendant No. 10 by filing written statement at Exhibit 17 admitted the suit claim and consented to pass a decree in favour of the plaintiff as claimed by him.
5. In view of the rival pleadings of parties, the trial Court has settled as many as 8 issues at Exhibit 26 and recorded the evidence for both sides. The trial Court held that there was a valid Gift Deed in favour of the plaintiff. The trial Court has also held that the plaintiff's donor Bhagirathi was exclusive owner of the property in question. He, therefore, came to the conclusion that the plaintiff was entitled to get a decree sought for. He, accordingly, decreed the plaintiff's suit by his order dated 3rd October, 1978.
6. Being felt aggrieved by the aforesaid decision, original defendant No. 1 Ankush Rajaram Narvekar had preferred Civil Appeal No. 113 of 1978 in the Court of Assistant Judge, Ratnagiri. The said appeal was heard by Assistant Judge, Ratnagiri and by his judgment and decree dated 17th April, 1984, he reversed the decree of the trial Court by holding that the property is purchased in the name of Bhagirathi-was of Rajaram Laxman Narvekar and Bhagirathi was only Benamidar. He has also come to the conclusion that the house property was standing in the name of Rajaram Narvekar. Rajaram Narvekar is the owner of the said house property. The Appellate Court further came to the conclusion that the Gift Deed in favour of the appellant/original plaintiff was not legal and valid. Therefore, in the circumstances, the First Appellate Court has come to the conclusion that the plaintiff was not at all to get any decree sought for. He, therefore, allowed the appeal and set aside the judgment and decree passed by the trial Court and dismissed the plaintiff's suit-by directing the parties to bear their respective costs.
7. Being felt aggrieved by the said decision, the original plaintiff Vasant has come in Second Appeal before this Court. The suit property consists of the land and house standing therein situated within the Municipal limits of Malvan. It is an admitted fact that .the land in dispute is purchased by registered Sale Deed in the name of Bhagirathi in the year 1921 by purchased Deed dated 15th January, 1921 .It is also an admitted fact that when the said land was purchased, it was open land and there was no building standing on the same. The house building in dispute is subsequently raised in the said land. There is a dispute between parties as to whether the suit house was built by Bhagirathi or her husband.
"The Benami Transaction (Prohibition) Act contains no specific provision making its operation retrospective. The Act is a piece of prohibitory legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the right to defences against recovery of benami transactions as defined in section 2(a) of the Act. The Parliament has jurisdiction to pass a declaratory legislation. As a result of the provisions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive. The Act contains no specific provision making its operation retrospective."
"For the landlord claiming eviction of his tenant from a non-residential premises on ground that he requires the premises personally for starting a business it is essential to establish that he is the owner of the disputed premises. Where in such a suit the lower courts had without considering the tenant's admission of the landlord's title to disputed property as contained in his reply to the notice given by the landlord and in the numerous rent receipts issued by the landlord, recorded the finding that the landlord had failed to establish his ownership to the disputed property, the High Court was right in reversing the finding of fact. The Court is under a duty to examine the entire relevant evidence on record and if having direct bearing on the disputed issue and the error which arises is of a magnitude that it given birth to a substantial question of law, the High Court is fully authorised to set aside the finding. Such was the situation in the case."
Thus in the latter case, the Supreme Court has observed that if the lower courts have without considering the material evidence on record property and have recorded an erroneous finding then the High Court was quiet right in reversing the finding of fact recorded by the courts below. Therefore, having bearing the ratios laid down by the Supreme Court in the case of Karbalai Begum v. Mohd. Sayeed and another, A.I.R. 1981 S.C. page 77 as well as in the case of Dilbagrai Punjabi v. Sharad Chandra, reported in A.I.R. 1988 S.C. 1858, I am proceeding to consider the material on record to find out as to whether the findings of the First Appellate Court regarding the building in question and the Gift Deed in favour of the appellant-original plaintiff are erroneous and whether interference with the same to justify in the circumstances of the case.
9. The land on which the house property is standing, admittedly was purchased by the Sale Deed dated 15th January, 1921 in the name of Bhagirathi and the house property subsequently raised on the said land which is purchased by the Sale Deed standing in the name of Bhagirathi. Therefore, the natural presumption would be that the house property must have been raised by the person in whose name the land below the house is standing. Therefore, in the circumstances, the trial Court was justified in putting the burden on the original defendant No. 1 to show that the building in question was raised by Rajaram Laxman Narvekar. That putting of the burden on defendant No. 1 was not only properly appreciated by the First Appellate Court but the First Appellate Court had observed that the act of the trial Court in putting of the burden on defendant No. 1 was erroneous and incorrect. That observation in the First Appellate Court itself clearly shows that the approach of the First Appellate Court in the matter was not correct. When admittedly the land is standing in the name of Bhagirathi and the house property is standing on that land then the burden would be on the person who is contending that the house is built by somebody else than the Bhagirathi to show the same.
10. The said house is built after 1921 and some time prior to 1936. I am saying that the said house is built sometime before 1936 because there is one Mortgage Deed dated 25th March, 1936 executed by Bhagirathi in favour of one Govind Narayan Gogte. The said document is produced at Exhibit 60. The original plaintiff Vasant Rajaram Narvekar as well as contesting defendant Ankush Rajaram Narvekar, both were admittedly minors when the construction in question took place. Therefore, in the circumstances, neither of them could have any personal knowledge of the said construction. The Mortgage Deed of Exhibit 60 is not considered by the said document is in modiscript and the translation of the said document was not produced in Marathi language or English language either in the trial Court or First Appellate Court. The said translation is made available at the time of the hearing of this appeal. If the said document is considered then it would be quiet dear that the said document is of great importance in considering the controversy between parties. I am unable to understand as to how the First Appellate Court has come to the conclusion that the said document of Exhibit 60 has come into existence after the death of Rajaram Laxman Narvekar. There is no death extract or any other document to show what is the exact date of the death of Rajaram Laxman Narvekar. The First Appellate Court has not also stated in his reasoning as on what basis he was holding the said document of Exhibit 60 has taken place after the death of Rajaram Narvekar. No doubt in the cross-examination of the appellant-original plaintiff's witness Asha, it has come in para 10 of her evidence that her father has died in the suit house in 1936. The said Asha is real sister of both the appellant-original plaintiff as well as .contesting defendant Ankush Rajaram Narvekar. Even if the said statement of Asha in para 10 of her cross-examination is taken into consideration, it could not be said that the said statement is showing that the death of Rajaram Laxman Narvekar has taken place prior to 25th March, 1936. On the contrary, the document itself shows that the death of Rajaram Laxman Narvekar must have taken place after the said document. Because the said document at Exhibit 60 shows that Rajaram Laxman Narvekar is one of the attesting witness to the said registered Mortgage Deed dated 25th March, 1936. It is also to be mentioned here that Bhagirathi has also not described in the said document as Exhibit 60 as a widow of Rajaram Laxman Narvekar. If contents of the said document of Exhibit 60 are read then it would be quiet clear that at the time of execution of the said document, her husband Rajaram Laxman Narvekar was alive. Because in the document itself, it has been clearly mentioned that her husband Rajaram Narvekar is ill and because of his illness, she had incurred debt from others to a great extent, and therefore, in order to satisfy the said debts and for maintenance of the family, she was raising the said loan. In the said document she has described the house property as well as the house as of her ownership she had mortgaged the said house property as well as land to Govind Narayan Gogte and that the document is signed as an attesting witness by Rajaram Laxman Narvekar. The conduct of Rajaram Narvekar in signing the said mortgage deed, as an attesting witness in which she has described the property as of her ownership, goes to a great extent in not accepting the contention of the contesting defendant that house was of his father's ownership. The document of Exhibit 60 shows that the mortgagee was an Advocate and when the mortgagee was an Advocate he would not have accepted the mortgage only from Bhagirathi if Bhagirathi was not the owner of the house property in question. No doubt, this document at Exhibit 60 itself is not a direct document of title of Bhagirathi but it is the document which is proving the conduct of Bhagirathi as well as Rajaram Narvekar and the said document is an old document, and therefore, it is of much importance. The First Appellate Court has not at all looked into the said document by holding that the said document has taken place after the death of Rajaram and consequently, he has committed an error which has resulted into the miscarriage of justice. The said document also shows that by the said transaction, she had also got satisfied a bond executed by Rajaram Laxman Narvekar in favour of the Mortgagee Govind Narayan Gogte.
"Rajaram was serving in Bombay till 1920. It is my case that Rajaram was getting Rs. 150/- p.m. by way of salary. Narayan used to tell me that he was in Port Trust."
If the above evidence of the same witness in his cross-examination is taken into consideration then it would be quiet clear that at the time of purchase of the land in 1921, Rajaram had no job. As stated earlier, in 1921, Rajaram must be around about 25 to 26 years old, and therefore, he must not have retired from his service but he must have lost his job on account of some happening wrong with him or must have resigned his job. If his age is taken into consideration at that time, there is no likelyhood of his bringing some big amount from his job. Asha has clearly stated that her father was not earning single money and her father had no money at any time. It has come in the evidence of Asha that her mother was working in Cashew factory and she was getting 10 to 12 annass per day. Therefore, her monthly earnings were about Rs. 20 to 25 per month in the year 1921-22. It is also claim of the appellant-original plaintiff that Bhagirathi's sister Yashoda had given financial help to his mother in purchasing the land as well as in raising the house on the said land in question. It has come in evidence that after purchasing the land in 1921, 2 years thereafter they have raised the building therein. Then it is not the claim of the respondent-original defendant either in his examination-in-chief or in cross-examination of Asha that her father was having some business or any particular source of income then it becomes very difficult to hold that the house must be raised and constructed by Rajaram Laxman Narvekar. No doubt, it has come in the evidence of Asha, in the evidence of contesting defendant Ankush Narvekar as well as his witness Shankar Dhondu Bagade that after raising of the building in question, Rajaram Laxman Narvekar was running a hotel in the same .building and that the hotel was also being run by Bhagirathi. But the running of a hotel has taken place after the construction of the building in question. It is very pertinent to note that there is no claim that Rajaram was having hotel business at some other place than the building in question before its construction. In view of the above circumstances, the finding recorded by the First Appellate Court is erroneous and is not at all warranted by any material on record.
12. I have already considered the Mortgage Deed of Exhibit 60 and I have observed that the conduct of Rajaram Laxman Narvekar in signing the mortgage deed as one of the attesting witness in which Bhagirathi has described the house property as of her ownership makes the claim of respondent/original defendant Ankush Rajaram Narvekar that his father was the owner of the building in question unbelievable and unacceptable. His conduct of signing the said mortgage deed as an attesting witness could be also taken into consideration even assuming that what Ankush Rajaram Narvekar is contending was true and correct as conduct of making Bhagirathi as Benamidar owner and the said house property for him. Because by signing the said mortgage deed as an attesting witness, he had posed before the mortgagee that the real owner of the house property is the said Bhagirathi. Thus, by attesting the said mortgage deed, she had made Bhagirathi as Benamidar of the said house property. Even if it is accepted in favour of the contesting defendant Ankush that Rajaram was real owner of the said house property. Therefore, signing of the said document of Exhibit 60 by Rajaram Laxman Narvekar could be taken into consideration in this light also. Then on account of provisions of Benami Transactions (Prohibitions) Act, 1988, Bagirathi would also become the absolute owner of the said property i.e. house building property and it is not open for respondent/original defendant to raise a contention that his father was the real owner of the property in question.
13. The learned Advocate Shri Walawalkar for the respondent-defendant urged before me that the appellant had not entered into the witness box and his failure to enter the witness box should be taken into consideration and an adverse inference should be drawn against the appellant Vasant Rajaram Narvekar. He has contended before me that the case is completely covered by section 114(g) of the Evidence Act. I have already stated earlier that both the appellant as well as contesting defendant Ankush Narvekar have born 5 years after the purchase of the land in question and they are born after raising of the building in question. I have already referred to the Mortgage Deed Exhibit 60 which took place on 25th March, 1936. At the time of the said mortgage deed, the appellant Vasant Narvekar was hardly 10 years old and therefore, in the circumstances, it could not be said that the appellant Vasant was knowing certain material facts for deciding the controversy between parties and he avoided-the cross-examination in order not to disclose the fact within his knowledge. An adverse inference could be drawn against parties under section 114(g) of the Evidence Act only in case if party purposefully withholds himself. In the case of (Pandurang Jivaji Apte v. Ramchandra Gangadhar Ashtekar)4, A.I.R. 1981 S.C. 2235, it has been clearly held that when the material on record on the point in issue is clear, no presumption could be raised against the person who failed to appear in the Court. In the case of (Eastern Bank Ltd. v. Parts Services of India Ltd.)5, reported in A.I.R. 1986 Calcutta page 61, the following principles are laid down regarding the application of the provisions of section 114(g) of the Evidence Act.
"The common principle of law is that if by cross-examination the opposing party can discredit the plaintiff's witness to show that there is no case to answer then in that case whether he himself deposes or not is not a ground on which the plaintiff can question the conduct of the defendant to establish his own case."
Therefore, in view of the circumstances, it is not possible to hold that the appellant Vasant Narvekar has purposely avoiding the cross-examination. The appellant Vasant had no personal knowledge about the construction in question, and therefore, his entering the witness box is not so material.
14. Therefore, in view of the above discussion, I hold that the First Appellate Court has committed an error to such an extent by not properly considering the material on record that it has resulted into miscarriage of justice, and therefore, the interference in the said finding of the First Appellate Court regarding ownership of the building in question is justified as laid down by the Supreme Court in the case of Dilbagrai Punjabi v. Sharad Chandra, reported in A.I.R. 1988 S.C. 1858.
(2) Nothing in sub-section (1) shall apply to the purchase of property by any person in the name of his wife or unmarried daughter and it shall be presumed, unless the contrary is proved, that the said property had been purchased for the benefit of the wife or the unmarried daughter."
"(3) Whoever enters into any Benami transaction shall be punishable with imprisonment for a term which may extend to three years or with fine or with both.
(4) Notwithstanding anything contained in the Code of Criminal Procedure. 1973, an offence under this section shall be non-cognizable and bailable."
Therefore, from sub-section (3), it is obvious that the Criminal action could be taken against the person who entered into benami transaction after the said Act of 1988 comes into force. Therefore, the provisions of the said sub-section (3) will not prevent the implication of sub-section (4) of section 3 of the Benami Transactions (Prohibition) Act, 1988. Therefore, in the circumstances, the submissions made by the learned Advocate Shri Walavalkar for the respondents-original defendants that the transaction in question is saved by sub-section (2) of section 3 of the said. Act, 1988 is not correct.
Whether defendant No. I proves that plaintiff obtained the gift deed dated 29th May, 1973 from Bhagirathi with fraud and undue influence and therefore it is not binding upon him?
17. Therefore, it is quiet obvious that the trial Court had not accepted the contention of the original defendant No. I before me that the gift deed in question was obtained by the appellant-original plaintiff by playing fraud. The Gift Deed in question is registered document. If section 123 of the Transfer of Property Act is considered, then it would be quiet clear that in case a gift of immoveable property, the transfer must be effected by registered instrument of document signed by the donor and attested by at least 2 witnesses. If the document of gift on record at Exhibit 59 is seen, then it would be quiet clear that the document is executed by Bhagirathi and it is attested by 3 witnesses. Admittedly, donor as well as donee were residing in the said house property and the acceptance of the registered gift deed would amount to the acceptance of the gift deed by the donee. The original gift dead is coming from the custody of the appellant-original plaintiff and that shows that he had accepted the gift. Therefore, in the circumstances, there is a valid gift in favour of the appellant-original plaintiff Vasant Rajaram Narvekar. No circumstances are pointed out to hold that the finding of the trial Court as well as the First Appellate Court regarding valid gift in favour of the appellant/original plaintiff is erroneous to such an extent that interference with the same in the Second Appeal is justified.
18. Apart from the above discussed material, there are other circumstances on record to hold that the claim of the appellant must be true and correct one. I have already pointed out that besides the contesting defendant Ankush Rajaram Narvekar, the appellant/original plaintiff Vasant Rajaram Narvekar has got two other brothers by name Yashwant and Prabhakar and they have got two sisters by name Asha and Gulab. The material on record shows that the appellant/original plaintiff's brother Prabhakar has filed his written statement supporting the claim of the appellant/ plaintiff. Asha has entered into the witness box as witness of the appellant/plaintiff to support the case and she has deposed in support of the plaintiff's case. Though defendant No. 9 Yashwant was duly served with the suit summons, be has not come forward to deny the claim of the plaintiff Vasant Rajaram Narvekar. That conduct of Yashwant suggests that he also admits the claim of the appellant/original plaintiff Vasant Rajaram Narvekar. It must be remembered that these brothers and sisters of the contesting defendant Ankush Narvekar are deposing and conducting themselves against their own interest and they are supporting the claim of the appellant Vasant Narvekar. That conduct of those persons who would be co-owners with equal shares with that of the share of the contesting defendant Ankush Narvekar as per his own contention could not be ignored or lost sight of. That conduct of brothers and sisters of contesting defendant Ankush Rajaram Narvekar also supports the claim of the appellant/original plaintiff Vasant Rajaram Narvekar.
19. Therefore, in view of all above discussion and consideration, it would be quiet clear that the original plaintiff Vasant Rajaram Narvekar has proved that he has become owner of the suit property by the Gift Deed dated 29th May, 1973. Therefore, he is entitled to get declaration sought for. He is also entitled to get a decree for possession as well as perpetual injunction sought for. The First Appellate Court was not at all justified in reversing the decree of the trial Court and dismissing the plaintiff's suit.
20. Therefore, in the circumstances, I hold that the present Second Appeal will have to be allowed. Accordingly the present Second Appeal is allowed. I, therefore, set aside the judgment and decree dated 17th April, 1984 passed by the First Appellate Court in Civil Appeal No. 113 of 1978 and restore the judgment and decree passed by the trial Court on 3rd October, 1978 in Regular Civil Suit No. 71 of 1975 with only modification that the respondent/original defendant Ankush Rajaram Narvekar is granted time to vacate the house property till 15th January, 1995 and direct both the parties to bear their respective costs throughout.

matches: V. v. v. v. v. v.


text:
The issue here is whether, in a state proceeding under a general assignment for benefit of creditors, Section 3466 of the Revised Statutes, 31 U.S.C. 191, 31 U.S.C.A. 191, gives priority to a claim of the United States over a landlord's lien and a municipal tax lien.
Mrs. Oeland Roman, the assignor, operated a restaurant in Danville, Virginia, on premises leased from respondent, Waddill, Holland & Flinn, Inc. On June 19, 1941, she executed a general deed of assignment to a trustee for [323 U.S. 353, 354] the benefit of creditors, specifically conveying all personal property, fixtures and equipment used by her in the conduct of the restaurant and located on the premises. This property remained on the premises until sold by the trustee on July 12, 1941. After deduction of appropriate administrative expenses, a sum of $1,407.29 remained. Four creditors claimed priority of payment from this amount.
(2) The Virginia Unemployment Compensation Commission made a tax claim of $66.38, plus interest. The Commission's claim, however, was conceded to be subordinate to that of the United States and need not be further considered here.
(4) The landlord, Waddill, Holland & Flinn, Inc., claimed $1,500.00 for six months' rent due and to become due. The assignor's lease from this firm ran for five years beginning January 1, 1937, at a monthly rental of $ 250.00. On July 1, 1941, twelve days after the deed of assignment was executed, the firm obtained the issuance of a distress warrant for 3 2/5 months' past due rent and an attachment for 2 3/5 months' future installments of rent. On the same day, the firm levied the warrant and attachment on the assignor's property located on the leased premises.
The trustee under the general assignment filed a petition in the Corporation Court of Danville, reciting the various claims and requesting advice as to the proper distribution. That court held that the landlord was entitled to priority in payment over the claims of the United States and the [323 U.S. 353, 355] Virginia Unemployment Compensation Commission but that its claim was subordinate to that of the City of Danville for taxes in the sum of $222. 31. On appeal by the United States, the Supreme Court of Appeals of Virginia affirmed this order of distribution. 182 Va. 351, 28 S.E.2d 741. We granted certiorari because of the importance of the problems raised and because of asserted conflict with this Court's decisions in People of State of New York v. Maclay, 288 U.S. 290 , 53 S.Ct. 323, and United States v. Texas, 314 U.S. 480 , 62 S.Ct. 350.
Section 3466 of the Revised Statutes provides in pertinent part that 'the debts due to the United States shall be first satisfied' whenever any person indebted to the United States is insolvent or, 'not having sufficient property to pay all his debts, makes a voluntary assignment thereof.' We hold that this statute clearly subordinates the claims of both the landlord and the municipality to that of the United States. The judgment of the court below must accordingly be reversed.
The words of Section 3466 are broad and sweeping and, on their face, admit of no exception to the priority of claims of the United States. Thelusson v. Smith, 2 Wheat. 396, 425; United States v. Texas, supra, 314 U.S. at page 484, 62 S.Ct. at page 352. But this Court in the past has recognized that certain exceptions could be read into this statute. The question has not been expressly decided, however, as to whether the priority of the United States might be defeated by a specific and perfected lien upon the property at the time of the insolvency or voluntary assignment. Conard v. Atlantic Insurance Co., 1 Pet. 386, 441, 444; Brent v. Bank of Washington, 10 Pet. 596, 611, 612; Spokane County v. United States, 279 U.S. 80, 95 , 49 S.Ct. 321, 325; United States v. Knott, 298 U.S. 544, 551 , 56 S.Ct. 902, 905, 104 A.L.R. 741; People of State of New York v. Maclay, supra, 288 U.S. at pages 293, 294, 53 S.Ct. at page 324; United States v. Texas, supra, 314 U.S. at pages 485, 486, 62 S.Ct. at pages 352, 353. It is within this suggested exception that the landlord and the municipality seek to bring themselves. Once again, however, we do not reach a decision as to whether such an exception is permissible for we do not [323 U.S. 353, 356] believe that the asserted liens of the landlord and the municipality were sufficiently specific and perfected on the date of the voluntary assignment to cast any serious doubt on the priority of the claim of the United States.
The landlord rests its claim upon certain provisions of the Virginia Code of 1936. Sections 5519 and 5523 authorize a landlord to levy distress for six months' rent upon 'any goods of the lessee ... found on the premises, or which may have been removed therefrom not more than thirty days ... for not more than six months' rent if the premises are in a city or town.' Section 5524 provides that the goods of the tenant on leased premises in a city or town may not be removed by a lienor or purchaser, nor taken under legal process, save 'on the terms of paying to the person entitled to the rent so much as is in arrear, and securing to him so much as is to become due,' not to exceed six months' rent. Other sections provide for officers making the distress under warrant from a justice, founded upon an affidavit of the person claiming the rent, and for such officers to make returns of their actions and proceedings upon such warrants. Provisions are also made for legal proceedings looking toward the possession and sale of the property to satisfy the debt.
The Supreme Court of Appeals of Virginia has here held that these sections 'give the landlord a lien which is fixed and specific, and not one which is merely inchoate, and that such a lien exists independent of the right of distress or attachment, which are merely remedies for enforcing it.' 182 Va. at page 363, 28 S.E.2d at page 746. It has also held that such a lien 'relates back to the beginning of the tenancy,' 182 Va. at page 364, 28 S.E.2d at page 746, thus giving it force and effect on date of the voluntary assignment. These interpretations of the Virginia statutes, as propositions of state law, are binding. But it is a matter of federal law as to whether a lien created by state statute is sufficiently specific and perfected to raise questions as to [323 U.S. 353, 357] the applicability of the priority given the claims of the United States by an act of Congress. If the priority of the United States is ever to be displaced by a local statutory lien, federal courts must be free to examine the lien's actual legal effect upon the parties. A state court's characterization of a lien as specific and perfected, however conclusive as a matter of state law, cannot operate by itself to impair or supersede a long-standing Congressional declaration of priority. Field v. United States, 9 Pet. 182, 201; United States v. Oklahoma, 261 U.S. 253, 260 , 43 S.Ct. 295, 297; Spokane County v. United States, supra, 279 U.S. at page 90, 49 S.Ct. at page 323.
Tested by its legal effect under Virginia law, the landlord's lien in this instance appeared to serve 'merely as a cave at of a more perfect lien to come.' People of State of New York v. Maclay, supra, 288 U.S. at page 294, 53 S.Ct. at page 324. As of the date of the voluntary assignment, it was neither specific nor perfected. It gave the landlord only a general power over unspecified property rather than an actual interest in a definitive portion or portions thereof.
Specificity was clearly lacking as to the lien on June 19, 1941, the date of the assignment. On that day it was still uncertain whether the landlord would ever assert and insist upon its statutory lien. Until that was done it was impossible to determine the particular six months' rent, or a proportion thereof, upon which the lien was based. The lien did not relate to any particular six months' rent but could attach only for the rent which might be due at or after the time when the lien was asserted. Wades v. Figgatt, 75 Va. 575, 582. And if it were asserted at a time when the tenancy had terminated or would terminate within six months of the date to which rent had been fully paid, the lien could only cover less than six months' rent. Conceivably the amount of rent due or to become due was uncertain on the day of the assignment. The landlord may have been mistaken as to the rental rate or as to payments previously made and the tenant may have been entitled [323 U.S. 353, 358] to a set-off. See Allen v. Hart, 18 Grat. 722, 59 Va. 722, 737; Hancock v. Whitehall, etc., Co., 100 Va. 443, 447, 41 S.E. 860. Moreover, while the lien legally attached to all such property as might be on the premises when the lien was asserted or within thirty days prior to distraint, the landlord could distrain goods only to the extent necessary to satisfy the rent justly believed to be due, the tenant possessing an action for damages for excessive distraint. Va.Code, 5783; Fishburne v. Engledove, 91 Va. 548, 22 S.E. 354; Gurfein v. Howell, 142 Va. 197, 128 S.E. 644. Thus until the extent of the lien was made known by the landlord and until some steps had been taken to distrain or attach sufficient property to satisfy the lien, it was impossible to specify the goods actually and properly subject to the lien. Some of the goods on the premises may have been subject to mortgages or liens which attached before the goods were brought on the premises, in which case the landlord's lien would be inferior. Va.Code, 5523. And if other goods were removed after the date of the voluntary assignment but more than thirty days before the distraint, or attachment, the right of distraint and attachment as to those goods would disappear. Va.Code, 5523; Dime Deposit & Discount Bank v. Wescott, 113 Va. 567, 75 S.E. 179. These factors compel the conclusion that neither the rent secured by the lien nor the property subject to the lien was sufficiently specific and ascertainable on the day of the voluntary assignment to fall within the terms of the suggested exception.
Nor was the statutory lien perfected as a matter of actual fact, regardless of how complete it may have been as a matter of state law. The tenant was divested of neither title nor possession by the silent existence of the landlord's statutory lien on the date of the assignment. Only after the lien was actually asserted and an attachment or a distraint levied, enabling the landlord to satisfy his claim out of the seized goods, could it be argued that such goods [323 U.S. 353, 359] severed themselves from the general and free assets of the tenant from which the claims of the United States were entitled to priority of payment. Prior to that time, the lien operated to do no more than prevent the removal of goods from the premises by certain classes of persons, Va.Code 5524, and give the landlord priority in distribution under state law provided that the goods remained on the premises. Such a potential, inchoate lien could not disturb the clear command of Section 3466 of the Revised Statutes. Something more than a 'caveat of a more perfect lien to come' was necessary.
The lien of the City of Danville stands in no better position insofar as the claim of the United States is concerned. The municipality contends that it assessed taxes on specific items of furniture and equipment pursuant to annual levies made by the city council and that a lien attached to such property on January 1, 1941, by operation of state law. It claims that this lien attached before the claim of the United States was acquired and hence had priority.
Under Virginia law, however, a municipal tax confers a lien on personal property which enables the city to follow it wherever it may be taken only if the assessment is specifically made on such property. Drewry v. Baugh & Sons, 150 Va. 394, 400, 401, 143 S.E. 713; Chambers v. Higgins, 169 Va. 345, 351, 352, 193 S.E. 531. The Corporation Court of Danville recognized that the city had not made such an assessment in this case since it held that assessment of the furniture and equipment as a unit was sufficient to satisfy this rule 'so long as they remained on the premises where the owner's business was conducted.' It realized that if this property unit were separated or removed from the premises different results would follow. Unless and until distraint was levied, which in this case occurred thirteen days after the voluntary assignment, it was uncertain whether the furniture and equipment would remain intact as a unit on the premises and hence be sub- [323 U.S. 353, 360] ject to the tax lien. If such property had been removed, distraint could then have been levied on other undetermined property of the tenant. At least until actual distraint, therefore, there was no certainty as to the property subject to the lien and no transfer of title or possession relative to any property. Such a lien cannot be said to be so explicit and perfected on the date of the voluntary assignment as to fall within the claimed exception to the priority of the United States.

matches: v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v. v.