PART-A

1. Explain the following:

a) Doctrine of Marshalling (3 Marks)

b) Right to Redemption (3 Marks).

a) Doctrine of Marshalling: It is explained under S.81 of the Transfer of Property Act. It recognizes right in favour of the subsequent mortgagee. The subsequent mortgagee to exercise this right the following conditions are satisfied: i) Mortgagor shall have more than one property and he should have mortgaged his properties ii) Later, the same mortgagor, mortgaged the same few or any one of those mortgaged properties to    Thus, the subsequent mortgagee has a right to request, the prior mortgage to realize the mortgage debt out of the property not mortgaged to him

b) Redemption: It is explained under S.60 of the Transfer of Property Act. It recognizes right in favour of the mortgagor. The term redemption means the right of a mortgagor to get back his property or documents of title relating to property from the mortgagee on payment of debt on or before a specified time. Once the money is paid by the mortgagor, he gets the right of redemption immediately. Any stipulation forming part of the mortgage transaction & inconsistent with the right of redemption is a clog on redemption. It is void.

The redemption applies only if the entire mortgage debt is cleared. It means the person having a share in the mortgage property cannot redeem his share in the property as of a right where there are several mortgages, none of them can redeem his share alone, but any of them can redeem the entire mortgage.

2.What are the documents, which compulsorily require registration and what are the consequences of an unregistered document? (6 marks)

Ans: S.17 of the Registration Act, lists document required by law to be registered. They are: 1. Sale or exchange of immovable property of the value of Rs.100/- or upwards. 2) Simple Mortgage,  3) Instruments of gift of immovable property. 4) Other mortgages (except mortgage by deposit of title deeds) when the principal money secured is Rs.100/- or upwards. 5) Lease. 6)Instruments transferring or assigning any decree or order or award of a court of any award when such decree or award purports or operate to create, declare, assign, limit or extinguish.

Consequences of  non-registration: According to S.49 of the Act, an unregistered document required to be registered under law can’t be received in evidence except in case of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument.

3(a). “Evidence may be given of facts in issue and relevant facts” Explain how? (2 Marks)

Ans: To prove a case, fact shall be placed before court.  However, S.5 and S.136 of the Evidence Act puts a prohibition on the court not to receive facts unless expressly recognized as relevant under the Act. They are called as relevant facts. Those relevant facts are listed under S.6 to S.55 of the Evidence Act.  The term fact in issue means that relevant fact which establishes right or liability is called fact in issue.  Thus, fact in issue is also a relevant fact. It is spelled out under S.13, 14 IEA.

 3(b) State the circumstances under which statements of the person who can’t be called as witness are relevant? (2 Marks)

Ans: The relevant facts shall be testified by persons who perceived by their own senses.  However, under certain conditions like: he is dead or incapable of giving evidence or not found or can’t be procured with unreasonable delay, any person can give evidence of his former statement subject to condition laid down under S.32 & 33 of the Act.

 3(c). Discuss the legal provisions about the evidence of accomplice? (2 Marks)

Ans: The confession of co-accused is relevant as per S.30 Evidence Act. It can be used to prove the case against the co-accused also.  Ex: (a) A and B are jointly tried for the murder of C. It is proved that A said—”B and I murdered C”. The Court may consider the effect of this confession as against B. An accomplice is a competent person to testify and it is legal to act upon his evidence though uncorroborated. However, it is settled proposition that court shall look for some kind of corroboration, even, indirect. S.114, illustration (b) of the IEA envisages the presumptive uncredit worthiness of an accomplice.

At outset, it shall be mentioned that the Principal purpose of a Criminal court is to determine the guilt or innocence of the accused. The standard of proof in a criminal case is beyond reasonable doubt.  This touchstone relieves the burden of a defense lawyer in great way as accused by creating doubt about the prosecution case can bailout his client from the case. In this part we will see how criminal case gets into motion and various stages it pass through before it comes to a logical end.  Apart from that it also spells out various tools defense counsel can use to end the prosecution case at various stages or disarm the wheels of prosecution evidence.

Generally, in criminal side, the case would come before court either by way of police report (Charge-sheet) or compliant.  On receipt of charge-sheet or complaint, if the court takes cognizance issues summons to the accused for his appearance. The accused on receipt of documents has a right to file a discharge petition or petition 482 Cr.PC. If discharge is allowed accused would be set at liberty. The following are the grounds on which discharge can be sought by the accused:

(a) Alleged acts facts didn’t disclose any offence

(b) Double jeopardy (S.300 Cr.P.C)

(c) Matter is of civil in nature

(d) Barred by limitation (467-473 Cr.P.C)

(e) The court has no jurisdiction to try the case (177-189 Cr.P.C)

(f) That the prosecution has not been properly launched (190-199 Cr.P.C).

If the accused plead not guilty, prosecution produces its evidence in support of their case. The court upon completion of prosecution evidence is under an obligation to examine the accused u/s.313 Cr.P.C by explaining the incriminating prosecution evidence. The accused has every right to adduce defense evidence and upon closure of his evidence, the court hears arguments and pronounce verdict.  If court convicts accused, he will be heard on sentence. Apart from this main course there are many intermediate and incidental proceedings would run parallel during the pendency of the main criminal case and they are called as Criminal Miscellaneous applications.  In this course we study all those important issues and stages from practical angle with the aid of wild life offence, 304AIPC, 498A & 324 IPC.     Due to paucity of time this course limits to these offences only.

CRIMINLA CASE – ADJUDICATORY PROCESS:

The Principal purpose of a civil court is to determine the existence of right in favour of plaintiff and liability on part of the defendant. In order to establish his right plaintiff has to set out his grievance by way of plaint. Plaint is a statement of allegation setting out right of the plaintiff by way of facts and its violation by defendant and as such making a request to court to grant relief in the favour of the plaintiff and against the defendant.

On receipt of plaint, the court would allot a number to it and issue summons to defendant. The defendant by way of written statement makes out his version. On a comparative reading of both, if there is any variance court would settle issues for trial and finally on completion of trial, the court soon after hearing the parties pronounces judgment and it is followed by a decree. The party who suffers decree shall oblige the same and in the event of its default, execution proceedings can be initiated. Apart from this main course there are many intermediate and incidental proceedings would run parallel during the pendency of the main suit and they are called as Interlocutory proceedings.  In this course we study all those important issues and stages from practical angle with the aid of money suit and injunction suit.     Due to paucity of time this course deals only about money suit and permanent injunction suit.

CIVIL SUIT – ADJUDICATORY PROCESS:

INTERLOCUTORY PETITION IN A CIVIL SUIT ADJUDICATORY PROCESS:

WRIT PETITION – ADJUDICATORY PROCESS:

MONEY SUIT –STORY:

    Scene-I:  Around thirty years back in Shameerpet village there used to be two friends by name Ram and Krish. They had their schooling and Inter together at Shameerpet Village. With the passage of time they became thick friends so much so that there is hardly a moment when they are not together. In fact there is hardly a man unknown of their intimate friendship and concern for each other.

Scene-II: Ram and Krish upon completion of 10+2 wrote NALSAR CET-2003. In the said CET though Ram got seat but krish failed to. Hence, Krish is constrained to undertake and complete his Law Graduation at Mathma Gandhi College, Hyderabad. Soon after completing the law, both of them enrolled as advocates.

Scene-III: As Ram got campus placement, he joined in a Corporate situated at Delhi and started drawing Rs.50,000/-(Rupees Fifty thousand only) per month.  Since Krish attempts to get a job yielded no result, having left with no alternative, he started practicing as an advocate at Jr.Civil Judge Court, Medchal.

Scene-IV: Krish journey as a young advocate as unsupported by any sort of background it was very tough. In fact he finds it difficult to get even five thousand per month. As the days rolled off, during the year 2009 a good match came to Krish sister and mantle of responsibility to perform her marriage fell upon Krish.

Scene-V:  Since, money is an immediate solution, though krish made an attempt to secure the same, his efforts are unfruitful. As usually for 2009 Diwali festival, Ram came down to Shameerpet and met his friend Krish. Krish reluctantly informed the Ram the pressing financial need. Upon receiving such request, Ram without hesitation decided to lend money to him besides unfolding his philosophy of helping near & dear.

Scene-VI: Accordingly, Ram lent an amount of Rs.1,00,000/-(Rupees one lakh) on 2.10.2009 at Shameerpet by way of hand loan by withdrawing thirty thousand from HDFC and ICIC Accounts and Forty thousand from Indian bank account. At that time Krish executed a demand promissory note for an amount of Rs.1,00,000/-(Rupees one lakh) @ 2% per month interest. The same is scribed by Sarpach who happened to be their school friend.

Scene-VI: With the passage of time Ram needs and responsibilities multiplied but not his income. Further in the month of Jan 2011, the untimely operation which has to be done to mother of Ram necessitated Ram to search for funds.

Scene-VII: At this junction Ram having learnt that due to construction of outer ring road near Shammerpet village, Krish made good money in a land deal, hence, requested Krish to return the amount. Krish though promised to return the same within a day or two, later stopped attending his call. Despite Ram’s best efforts to communicate Krish including through village Sarpanch, it yielded no result.

Scene-VIII:  Ram at the request of friends and well wishers constrained to issue legal notice on 11.11.2011 by way of Registered post. In response to it, Krish gave a reply notice disputing all the contentions besides stating that pronote is a forged one and executed without consideration and there is no necessity for him to execute pronote.  Having aghast with this kind of response and having learnt that time is running out to make a legal claim, his family and friends insisted to file a money suit. At last, Ram decided to file a suit for one lakh(without interest) on 02.01.2012.

It is evident from previous chapters that our justice system is premised on existence of right or liability.  It means one can approach court if his right is violated or about to be violated.  It is to be noted that approaching court doesn’t mean physical appearance. In adversarial method of adjudication, the role of judge is not active but to act upon version placed on either side.  It shall be reminded that reporting grievance and getting remedy from the court is not a post man job or message transmitter affair.   It is a multifarious activity and for this reason the activity of placing of version of the client before the court and getting remedy from the court is called as science and art of highest grade.  This seemingly simplified activity involves variety of duties and following few are amongst them:

 1) Conversion of human problem into a legal problem.

 2) Knowledge and wisdom in application of laws to the real human problems to get the desired result.

 3) Skill of ascertaining facts through the client so as to bring them within or outside the fold of right or offence and ability of processing in the court of law so as to prove or disprove it.

 4) Proving or disproving the case with legally relevant and admissible evidence with utmost credibility with the aid of competent persons.

 5) Coordinating and convincing various individuals including judge to reach our goal. It is quite often told that in our justice system 90% of the fate of our case depends upon judge and 9% upon facts and remaining 1% law.

 6) In this entire long drawn process ensuring and sustaining the faith of the client about the possibility of securing justice is also a tough challenge.

It is crystal clear from the above that system demands great many things from the trial lawyer.  Of which, understating human being stands first and the reason he is meant to resolve human problems with the aid of other imperfect and self-centered human beings.  It must be mentioned that before we understand others, we shall understand ourselves.   We must have clear idea about ourselves i.e, our strengths and limitations i.e, personality and landscape with which we have to operate. It helps us identify defects and develop necessary skills and knowledge. If we don’t understand our defects, it will be magnified by opposite party and he will take manifold advantage and ultimately we do more harm and injustice to cause of our party.  In this connection it must be noted that in the modern age the war zone is converted into court room.   As such in accessibility to justice is a serious threat to harmonious, peaceful co-existence and vibrant democracy.   The reason is person whose right is not remedied would wish to his resolve problem by illegal means and if this remains unchecked chaos and confusion would become order of the day and finally it would turn into revolution. All the above suggests successful democracy mandates lawyer with astounding personality, skills, values and qualities.  Now let us turn to those qualities:  

Client interaction, Choosing Legal forum, Art of Drafting, Art of Adducing evidence and conducting Cross-examination, Art of submitting arguments, Attitude towards Judge, Art of dealing with colleague lawyers & Bar, Art of Handling Court staff and others, Art of handling Case, Reading and Organizing Case file and reading court docket.

CLIENT INTERACTION:

Well begin is half done. Lawyer’s job is a matter of trust. The first task of a lawyer shall be to ensure long lasting faith in the mind of client about his ability and integrity in discharging duties.

 Make out a case:  The first duty of a lawyer is to make out a case. The term making out a case means converting wounded human emotion into a legally remedied solution.  To put it otherwise, court is meant to solve only legal problems. It means those emotions which resulted violation of legal rights declared by law of the land can only be resolved by courts.  For this purpose lawyer shall have clarity about various legal rights and duties especially those which are more frequently violated in the area of his practice and place of practice.  Further, it is the duty of the advocate to ascertain from the client various tools that would aid the proof of the violation of legal right or duty.

 Knowledge of law and Law of evidence: In order to do make out a proper case and ensure success lawyer must have a grand idea about various rights under which problem of the client falls and various institutions that redress the legal grievances. More importantly robust understanding of law of evidence is very essential. The reason is facts can be proved before court with relevant and admissible facts.

Creating proper climate:  It means client must come out with facts (logical or illogical) so that client can speak anything without any hesitation or fear in mind so much so that as if he is speaking to himself. A lawyer can ensure such mental climate if he possesses personality of accepting peaks and depths, summits and shallows, which are quite common in any one’s life. In other words lawyer shall not be an either a condemner of vices or virtues in a human being.  Further, every lawyer in India must know that no person approach a client unless he has a genuine grievance.  A comment made by well known scholar that in India docket exclusion is more than docket explosion fortifies this fact.  It must also be mentioned that person approaches a Lawyer only when his beliefs, values and feelings are wounded and soul is disturbed though what actually he lost and seeking for is in terms of material terms (property or liberty or remedial action). Therefore, it is all the more important for a lawyer possess empathy, impeccable integrity, ability, courage and court craft so to give relief to his clients. This would help to properly present grievance or provide effective defense.

Good listener:  To properly appreciate the violation of legal right or duty, lawyer has to be good listener.  The term good listener means giving a patient hearing and properly understands the facts narrated by the client. In fact a patient hearing also gives a soothing touch to wounded soul and a mental relief. It is not advisable for a lawyer to hear facts with an ear of critique or commentator. Listening patiently and understanding rightly would not solve the problem advocate must express his doubts genuinely and clarify missing links honestly so as to remedy the grievance through the process of law.   It must be noted that any question lawyer puts shall be such that they are only meant to elicit further details and drive the client to come out with true facts.

 Note taking: Lawyer shall jot down the entire important points client spells out in the course of interaction. The lawyer for this purpose shall maintain diary. This sort of activity encourages client to come out with more facts and enhance faith in the lawyer.

 Conclusion:  All these qualities and skills would enable lawyer acquire a vision how take the case to its logical end. If client can perceive these things in his advocate a sort of confidence, if not love, develop so much so that client doesn’t mind, even if case is lost. After all, success or failure at court of justice depends on variety of factors not only on advocate skills and knowledge alone.