1. Write a note on fact and fact in issue?

Fact: S.3 says Fact means and includes:-

(1) Anything, state of things, or relation of things, capable of being perceived by senses. (2) Any mental condition of which any person is conscious.

Ex: (a) That there are certain objects arranged in a certain order in a certain place. 

(b) Any mental condition of which any person is conscious.

Fact in issue: S.3 of IEA defines fact in issue.

Fact in issue: Any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature, or extent of any right, liability, or disability, asserted or denied in any suit or proceedings, necessary follows. It means matter under controversy.

2.Write a note on Proved, disproved and not proved?

Proved: S.3 of IEA defines proved. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

Disproved: Fact is said to be disproved when, after considering the matters before it, the Court either believes it doesn‘t exist, or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it doesn‘t exist.

Not proved: A fact is said not to be proved when it is neither proved nor disproved.

3. Write a note about Presumption?

Ans Presumption is an inference drawn by the court based on certain proved facts. They are of three kinds: May presumptions are indicated in S.86 to 88, 90 & 114. Shall presumptions are indicated in S.79 to 85, 89 & 105. Conclusive proof is contained in S.41, 112 & 113.  It’s a short cut to Proof.

May presumption:  Whenever it is declared by the Act that the court may presume, the court upon proof of one fact may presume proof of another fact, it is called as may presumption. Thus court has a choice either to presume or not. Ex:  On record the following facts are proved: 1. Legal notice is received by defendant with respect to debt he owes to the. 2. Defendant didn’t reply. The court may presume that the defendant is silent because he has liability towards plaintiff or otherwise. If the court doesn’t presumes the fact burden lies on the plaintiff to prove it.

Shall presumption: Whenever it is declared by the Act that the court shall presume, the court upon proof of one fact, shall presume proof of another fact, it is called shall presumption. Thus court is under an obligation to presume a fact. Ex: As per S.113B If a married woman dies in an unnatural manner with bodily burns within seven years of her marriage and it is shown that she is subjected to dowry harassment, the court shall presume husband or his relative committed Dowry death. The court has no choice. This is called shall presumption.  If the accused failed to discharge his burden, he can be convicted for the commission of offence in view S.102 IEA.

Conclusive proof (S.4): If one fact is declared as Conclusive Proof of another, the Court shall not allow any evidence to be given to rebut it.  Under the Act there are only three conclusive proofs: S.41, S.113, 112. 280 days after dissolution of marriage or Marriage is in Subsistence + Sexual Intercourse (access) = Child Born. The Court shall conclusive believe that Child born is a legitimate and shall not allow any evidence to be given to rebut the same. 

4.Write note Resgestae?

Resgestae:  Facts even though they are not in issue but if they are so connected as to form part of the same transaction they are relevant whether they occur at the same time and place or at different times and places. Transaction means an unbroken event. Example:- A is accused of the murder of B by beating him whatever was said or done by A or B or the by standers at the beating, or so shortly before or after it as to form part of the same transaction is a relevant fact.

5. What is the use of facts like motive, occasion, cause, introductory or explanatory, inconsistent etc., as their proof does not determine fact in issue?

Ans: It is true to determine right or liability facts in issue shall be proved and proof of these facts doesn’t amount to proof of fact in issue. However, it shall be noted that every fact in issue has forward and backward linkages which help the court to arrive at conclusion with assertiveness. S. 6 to 11 IEA help parties to give forward and backward linkages for occurrence of fact in issue or any other relevant fact. a) If such fact form part of the same transaction(S.6) b) If it is the occasion, cause and effect of the fact in issue(S.7) c) Facts relating to motive, preparation and previous or subsequent conduct. However, conduct must be accompany and explain act(S.8) d) Facts necessary to explain or introduce relevant facts(S.9) e) If they are inconsistent with any fact in issue or relevant fact (S.11).

6. What is identification parade?

Ans: Identification Parade: Facts establishing the identity of person are relevant facts u/s 9 of IEA. When the accused person is arrested on the basis of physical features given by the eye witness, police arranges the test of identification parade The object of conducting Identification parade is to test the truthfulness of the witness and his capability to identify an unknown person whom the witness seen only once. The mode and manner of conducting test identification parade is spelled out under Rule.34 of A.P.Criminal rules of Practice.

1. Identification parade is conducted in the presence of judicial Magistrate and the police have to leave the scene to ensure the free and fair conducting of Identification Parade,
2. Suspected person will be placed among the other persons who have same physical characters of the accused as far as possible, 3.Then the Magistrate calls the witness to identify the accused person to whom he had seen while committing the offense, 4. If the eye witness identifies the accused and picks up the person to whom he had seen while committing the offense, the Magistrate records to that effect and he completes the proceedings. Later witness will be called by court at the time of trial to identify the accused person.

Evidentary value: It is not a substantive piece of evidence. It has only corroborative and contradictory value.

7. What is S.11 IEA? What is Alibi?

Ans: S.11 says facts not otherwise relevant become relevant 1) if they are inconsistent with any fact in issue or relevant fact. 2). If by themselves or in connection with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.

Ex:Alibi: The plea of alibi postulates the physical impossibility of the presence of accused at scene of offence by reason of his presence at another place. Burden to prove alibi is on the accused. The credibility of alibi greatly strengthened if it be setup at the moment when the accusation is first made and be consistently maintained throughout the subsequent proceedings.

8.Write a note on admissions?

Ans:  It‘s an oral or documentary or electronic statement which suggests an inference as to any fact in issue or relevant fact. It must be a self harming statement except in cases mentioned u/s.21 IEA.  Admission of a fact relieves the burden to prove a fact.  Admission is a substantive piece of evidence. Admission must be always clear, and certain. It must be considered by the courts as a whole. S.31 says Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions of the Act. To treat any statement as admission it must be made by: a) Parties to the suit or their agents b) If they are third person they must have any proprietary or pecuniary interest in the subject matter of proceeding c) Persons from who parties to the suit or proceeding derived their interest in the subject matter of suit.

9.Write a note on and confessions:

A confession is an admission of guilt. Confession is dealt under Sections 24, 25, 26,27,28,29 and 30 of the Evidence Act. As per S.24 Confession is a relevant fact if it is made without there being any (i) inducement (ii) threat or (iii) promise.  It can be made before any person including Magistrate. However, confession made to police officer is irrelevant except in case of S.27. As per S.27 if a fact is discovered in consequence of information received from the accessed, so much of the information as it distinctly relates to discovery of fact is a relevant fact.

10. Write a short note on admissions and confessions?

11. What are essentials of Dying Declaration and mode of recording it?
12. Meaning of Dying Declaration: It is a relevant fact in view of S.32 (1) of the Evidence Act 1872. Dying Declaration is a statement made by a person at the time or before the time of his death as to cause of his death or circumstances relating to cause of his death. As the person who made such Dying declaration is no longer available, the person in whose presence such statement was made can testify the facts about the death of the deceased even though he didn’t perceive actual incident with his own senses.  Thus Dying Declaration is one of the exceptions to the Hearsay rule of evidence.

Evidentiary Value of D.D: It’s a substantive piece of evidence. Once the court is satisfied that the D.D was voluntary and not influenced by any extraneous consideration, and inspires confidence about it truthfulness court convict a person solely on its basis without any corroboration. If the person didn’t die and he is alive his statement can be used for contradiction U/S.145 or corroboration U/S 157 of the IEA.

Mode of recording: The mode of recording D.D is spelled out under R.33 of Criminal rules of practice.

1. D.D may be oral or written. It can be recorded by any person including a police officer depending upon the urgency. If time permits it is always desirable to get the services of the Magistrate to record D.D as it has its own value. If it is in the hospital the certificate of the medical officer about the mental condition is necessary.
2. D.D must be of a person who is competent to testify as a witness, if alive.
3. There is no particular method of recording a D.D. It is desirable to record it in a question and answer and the answers be written in the words of the person making the declaration. It must be complete.
4. The statement must be read over and the signature or thumb impression has to be obtained .The time of recording shall be noted.
5. The court is obliged to rule out the possibility of the statement being the result of tutoring, prompting or vindictive or a product of the imagination.

12. Write a note on Expert Opinion?

Ans: It is dealt under S.45 & 46.  A case can be proved with the aid of expert opinion as it is declared as relevant fact under S.45 of the Evidence Act.  The opinion of a person who is an expert in any of the following subjects is a relevant fact. The subjects are like this: Opinion as to: a) Foreign law b) Science c) Art d) Identity of handwriting or finger impression. Expert opinion shall be supported by reasons. Expert opinion doesn’t bind the court, thus it is not a conclusive in nature. It shall be received like any other evidence and it is only an advisory opinion. 

13.Write a note on Character evidence?

Ans:  The general rule is Character evidence is irrelevant either in civil or criminal cases except under certain situations. They are expressly dealt under S. 51 to 54.

Civil Cases : It is irrelevant except in two conditions. They are: a) Character itself is in issue, b) If it mitigates affects the amount of damages to be awarded.

Criminal Cases: Evidence of good character is relevant. Evidence of Bad character is not relevant except two conditions:

1. a) When it is itself a fact in issue b) To rebut the evidence of good character

14. Which facts need not be proved in the court?

The following facts are need not be proved :(a) facts which the court will take judicial notice (S.57) (b) facts admitted by parties (S.58) However the court may in its discretion require the facts admitted to be proved otherwise then by such admission.

15. Which facts court can take judicial notice?

Ans: S.57 lists 13 facts, which the court is bound to take judicial notice. They are:

1. All laws in force in the territory of India.
2. Articles of War for the Indian Army, navy or Air Force.

3.The course of proceedings of parliament of the U.K, of the constituent Assembly of India, of parliament and of the legislatures established under any laws for the time being in force in the state or in India.

4. The division of time, the geographical divisions of the world, and public festivals, fasts and holidays notified in the official Gazette.
5. The commencement continuance and termination of hostilities between the government of India and any other State or body of persons.
6. The names of the members and officers of the court and of their deputies and sub-ordinate officers and assistance, and also of all officers acting in execution of its process , and  all Advocates, pleaders and  other persons authorized by law to appear or act before it.  7. The rule of the road on land or at sea.

16. What is the meaning of Admissibility or Hearsay rule of evidence?

Admissibility (S.59 & 60): All relevant facts can be proved by way of oral evidence except the contents of documents and as such Oral evidence shall be direct. It means evidence shall be given by those persons who perceived with their own senses. Unless these people give evidence court is prohibited to treat the relevant facts testified them as evidence. This is called admissibility rule. However there are some exceptions to this rule.   Exceptions to hearsay rule of evidence: a) Resgestae(S.6) b) Admissions and confessions c) Statements U/s.32  d) Evidence given in judicial proceeding or before any person authorized to take evidence by law e) Statements in Public documents f) Opinion’s of experts.  The sections exempted from Hearsay rule are: S.21, 22, 27 to 30 b) S.32, 33, 34 to 38, 40 to 42, 45.c) S.51, 53 and 54.

17. What is the mode of Proving a document?

Mere filing of original document would not enable the court to read the contents there in the document unless any one of the following person as listed under S.67 come as witness. They are: 1) By calling a person who signed or wrote the document (2) By calling a person in whose presence the document was signed or written (3) By calling a handwriting expert (4) By calling a handwriting expert (5) By circumstantial evidence (6) By calling a person acquainted with the hand writing of the executant.  The above rule spelled out u/S.67 doesn‘t apply in case of public documents. The Public Documents are admitted in evidence as exception to the hearsay rule as the facts contained in them are made by the authorized or competent agents of state in discharge of their public duties.

18. What is the mode of proof of WILL?

A: Will is a compulsorily attestable document as per S.63 of the Indian Succession Act, 1925. Registration is optional. The law relating to proving the contents of the WILL is dealt under S.68 of Indian Evidence Act, 1872.  As per S.68 of Evidence Act, the court to read a WILL as part of evidence, one of the attesstor shall be examined as witness. However, if such attesting witness is dead or can’t be subject to the process of the court or not capable of giving evidence, WILL can be proved in any of the below mentioned ways: They are dealt under S.69 to 71. Thus the aid of S.69 to 71 can be taken only upon exhausting the rule laid down u/s.68.

S.69 says if the attesting witness is not available, the attestation of one attesting witness can be proved by other evidence in his hand writing.

S.71 says If the attesting witness denies or doesn’t recollect the execution of the document; its execution may be proved by other evidence.

S.70: If a party to an attested document admitted the execution of the document.

19. What is primary Evidence?

Primary evidence (S.62): Document itself is produced for the inspection of the court. It is the evidence which the law requires to be given first

IEA recognises any of the following four as Primary evidence:

1. The original document itself. Ex: A WILL
2. If a document is in several parts each part is original Ex: One Will but executed in three parts. Each part is original.
3. If a document is executed in counterpart each counterpart is original as against the party who execute them. Ex: Agreement of Sale signed by the vendor is given to vendee and viceversa. Since, it is in two copies, one is counterpart to another. If vendee files a case the copy signed by vendor is primary against the vendor.
4. If a document is created by uniform process like printing, photography or lithography all are original.

20. What is Secondary Evidence?

Secondary evidence (S.63): a) Certified copies. B) Copies made from the original by mechanical process and copies compared with such copies. c) Copies made from or compared with original. d) Counter parts of the documents as against the parties who did not execute them. e) Oral accounts of the contents of documents by a person who has seen it.

21.Whether secondary evidence can be produced in the absence of primary?

The law relating to this subject is dealt under S.64 to 65 of IEA. The general rule is that document must be proved by primary evidence only and if the case of the party falls in any of the given situation, secondary evidence can be given:

1. If a party wishes to produce secondary evidence, an attempt must be made to produce original by serving a notice on the person in whose possession the document is. If upon, such notice, if the party failed to produce the same, secondary evidence can be given.
2. If the existence of original have been is admitted in writing
3. If the original had been destroyed or loss or cannot be produced
4. If the original is not moveable, 5. If the original is a public document
5. If the original consists of numerous accounts.

22.What is a Public Document?

A: S.74 defines Public Document: 

1. Acts or records of sovereign authorities Ex: Proclamations, Ordinances.
2. Acts or records of acts of official bodies & tribunals.
3. Acts or records of public officers of India or of a foreign country.

The Public Documents are admitted in evidence as exception to the hearsay rule.

Private documents though made by private individuals but kept as record in public offices in order to facilitate public to have access to it are private documents only. Ex: Sale deed.

23. Write about: Ambiguous document, Latent & Patent Ambiguities?

The intention of the document should be clear and certain. However, if it conveys double, doubtful or unclear meaning, such document is called as Ambiguous document.  The ambiguities are classified in two kinds: – Patent and Latent.

Patent Ambiguity (S.93):  If the ambiguity appears on the face of the document itself and it can’t be rectified either with the aid of external or internal tools such ambiguity is called patent ambiguity.  It may be due to wrong description or due to incompleteness of document. No oral evidence can be allowed to remove patent ambiguity. Ex: Raju agrees to sell Shekar a horse for Rs1000/- or 2000/-. The agreement is not clear about the price and hence evidence cannot be given to supply the defect. Therefore Patent Ambiguity cannot be rectified.

Latent Ambiguity (S.95 to 97): The latent ambiguity is in hidden one but the external circumstances don‘t create any difficulty or doubt about its application to subject matter. The general rule is a latent ambiguity can be rectified with the aid of external or internal aid and as such evidence can be given as to those aids. 

24. What is an Ancient Document and ordinary document? Why such distinction is maintained under evidence act?

Ancient Document: A thirty years old document is known as ancient document or five years in case of electronic document. The thirty years period is counted from the date of tendering such document as evidence in the court of law. Any document which is less than thirty years old is known as ordinary document. The advantage of ancient document is that court may presume following facts:

(1) That the signature and every other part of such document were proper and signed or written by the person whose signature it bears. However, it doesn’t mean contents are proved, they shall be independently proved.  .

(2) That it was duly executed and attested by the person by whom it purports to be executed and attested.  To raise presumption u/s 90 document must be produced from the proper custody and in appearance free from suspicion.

Ex: Raju has been in possession of landed property for a long time. He produced from his custody deeds relating to the land showing his title to it.

24. Whether oral evidence is permitted if the transaction is in writing or law mandates to be in writing?

Ans: No, Section 91 says when the terms of contract reduced to the form of a document or in all cases in which any matter is required by law to be reduced to the form of a document no evidence shall be given, except the document itself or by secondary evidence where it is allowed.

26. Whether evidence can be given varying the terms mentioned in the document?

Ans: No, The general rule is no oral evidence is permitted when transaction is reduced to writing. However under the following six exceptional situation oral evidence can be let in. They are: 

1. Any fact which invalidates a document can be proved those facts are like this fraud, intimidation, illegality, wanton or failure of consideration, want of capacity, want of due execution etc.,
2. If the document is silent and matter sought to be proved is not inconsistent with the facts contained in the document, oral evidence can be let in.
3. A contemporaneous agreement constituting a condition precedent to the attaching of any obligation under written agreement not to be enforced until the event of certain event.
4. The existence of any subsequent oral agreement to rescind or modify any contract, grant of disposition of property can be proved, or the parties are free to rescind or modify agreement, however this rule has no application if transaction is required to be in writing or registered.
5. If the contract is silent, oral evidence can be let in, so as to prove usage or custom usually annexed to such contracts.
6. Evidence can be let in as to any fact which would interpret the document.

26A. What are guidelines to Intrepret a document? Whether extrisic evidence can be taken to intrepret a document?

Section 93-98 of evidence Act lay down certain guidelines for interpreting a document. 

Ist Rule: If the document is clear and plain, no external aid is to be taken to interpret the document.  

II Rule:  If the document is defective or ambiguous, no external evidence can be given.

III Rule: If the language used in the document is plain but it is unmeaning in reference to existing facts, evidence can be used to show that it was used in a peculiar sense.

IV Rule: If the language of a document may apply to only one of many facts, evidence may be given to show that to which fact it applies.

V Rule: When the language applied partly to one existing facts or other existing facts but not to the entire document, evidence may be given as to which fact it applies.

VI Rule: If the document is containing illegible or intelligible character, foreign, obsolete, technical or local or provincial expressions evidence may be given to explain meaning of those terms.

VII Rule: If a person who is not a party to the document can lead evidence of any facts tending to show a contemporaneous agreement vary the terms of the document. 

27. Write note General rules of Burden of Proof?

Ans: The term burden of proof indicates obligation to prove a case. The first four basic rules relating burden of proof are hereunder:

28. Whether Court may presume facts without their being any proof?

Ans: Yes, as per s.114 of evidence Act, The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case.

Illustrations The Court may presume—

1. a) that a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession; That an accomplice is unworthy of credit, unless he is corroborated in material particulars; That judicial and official acts have been regularly performed;
2. b) That the common course of business has been followed in particular cases;

c)That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

d)That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

f)That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

29. What are the qualification and disqualifications to be a witness?

Ans: a) Qualification to be a witness: Every person is a competent witness. The only test is that one must be capable of understanding questions put to him and give rational answers to those questions (S.118). To put straight even child, old age persons, sick person, insane persons, dumb persons are competent witness if they are capable of understanding questions put to him and give rational answers to those questions. Dumb witness can give evidence by way of gestures and signs (S.119). In fact, even the wife and husband are competent witness against or for the suit filed by either of the spouse, though, in the eye of religion wife and husband are said to be one and same(S.120). Thus under IEA, there is no discrimination to be a witness either on the base of sex, caste, age, relation between parties to the suit, physical or mental disability, creed, race, religion, position in life, character & conduct of the witness as long as the above test is passed.

1. b) Disqualification to be a witness: Despite fulfilment of test laid down under S.118 to 120, law disqualifies certain person to give evidence. The disqualification is based on certain solemn principles. They can be studied under following seven broad categories: a) Communication during marriage by either of the spouse, b) Evidence as to affairs of State by a person who is in possession of such information c) Confidential Official Communications by a person who is in possession of such information d) Information as to the Commission of offences by a person who is in possession of such information e) Professional communications by a professional (Ex: Lawyer) who is in possession of such information. f) Person who is in possession of documents belongs to others g) Production of documents or giving evidence would incriminate the witness.

30. Explain about Communication during marriage?

Ans:S.122 only prevents disclosure in giving evidence in court of the communication made by one spouse to the other. If the wife appears in the witness box to give evidence about the communication made to her by husband, prima-facie the communications may not be permitted to be deposed to or disclosed unless the husband consents. The protective provision u/s 122 is based on the wholesome principle of preserving domestic peace and conjugal confidence between the spouses during coverture.

Difference between S.122 and 120: According to S.120 the wife of an accused person is a competent witness. But while examining provisions of S.122 should be borne in mind and all direct questions as to the conversations that took place between her and her husband should be disallowed. She should be only asked to state what she did in consequence of what was told to her by her husband. She should not be permitted to state what exactly was told to her and that she did in consequence of that a particular thing or refrained from doing a particular thing.

31. Explain about Professional communications?

Ans: An advocate shall not permitted, except with his client‘s express consent to disclose any communication made to him in the course and for the purpose of his employment or to state the contents or condition of any document with which he has become acquainted in the course and for the purpose of the professional employment or To disclose any advice given by him to his client in the course and for the purpose of such employment (S.126).   The rule applies to interpreters and the clerks or servants of barristers, pleaders attorneys and vakils (S.127). The rule applies to confidential communication which has taken place with a professional legal adviser (S.129).

It must be noted that a party merely because gives evidence as to any of the affairs transpired between his counsel and himself doesn‘t mean party has consented his counsel to give evidence with respect to such matters. A party is said to have given consent only if the party call such advocate to depose such facts or gives express consent to give evidence. A failure on the part of the client to claim privilege cannot be stretched to the extent of amounting to express consent envisaged in the provision (S.128). If a person is in possession of documents belong to another such person shall not be compelled to produce such documents unless such another person consents for their production (S.131).

32. Discuss about Privilege of state as to production of records?

Ans: Person, who has derived any information from unpublished official records relating to any affairs of state, shall not give evidence of such mattes, except with the permission of the head of the department concerned. The head of the department has power either to give or withhold such permission as he thinks fit (S.123).

33. Whether a public officer can be compelled to give evidence about official confidential information?

Ans: No, as per S.124 IEA, Public officer who has received any official confidential information shall not disclose such matters, if he is of the opinion that disclosure would result harm to public interest.

34. Whether court can ask Magistrate or police officer how he got the information about commission of offence?

Ans: No, as per S.125 IEA, the Magistrate or police officer shall not be compelled to testify how they got any information as to the commission of any offence. Similarly, the Revenue officer shall not be compelled to how he got information as to the commission of offence against the public revenue.

35. Whether a witness can refuse to produce documents or give evidence on the ground that it would incriminate him?

Ans: NO, he shall speak out. As per S.132 a witness shall answer all questions put to him and can‘t take excuse from answering the question on the ground that answering the question would expose him to penalty or forfeiture of any kind. However, basing on this answers witness shall not be subjected to any prosecution except for perjury. Thus court can compel a witness to give evidence for any question even though answer, if given, would incriminate the witness or result forfeiture of property.

36. Whether a person can be a witness against himself?

No, because, one of the basic principles of human rights is that no man shall be a witness against himself, if the evidence given by him would subject to penalty or forfeiture of property. In fact this is also guaranteed under our constitution under A.20 and S.315 of Cr.P.C and 130 of the Evidence Act. The provisions are like this: A.20 of the constitution says no man shall be compelled to be a witness against himself. S.315 Cr.P.C says accused is not a competent prosecution witness but a competent defence witness. He can be called as a witness only upon his request in writing. Further, his failure to give evidence shall not be made subject of any comment by any of the parties the Court or give rise to any presumption against himself or any person charged together with that the same trial.

37. Probative value of the following witness:

Child, Accomplice, Dumb, Prosecutrix.

(a) Child Witness: IEA 1872 does not prescribe any particular age as determinative factor to treat a witness to be a competent one.  Child is a competent witness U/S 118, Competency of the child witness can be ascertained by putting a few questions to them in order to find out whether they are intelligent enough to understand what they had seen and afterwards inform the court. In the case of child witness the court should hold a preliminary examination and also maintain formal record in that behalf. Absence of such inquiry doesn’t make the evidence inadmissible. The evidence of child witness should be received with great care and circumspection. Child shall not be examined on oath. After close scrutiny of child witness, the court comes to the conclusion there is a truth of impress in it, there is no obstacle in the way of accepting the evidence of a child witness.

(b) Accomplice:- An accomplice is competent person to testify. S.114, illustration (b) of the IEA envisages the presumptive uncredit worthiness of an accomplice. But, then section 133 provides that conviction is not illegal merely because it rests upon an uncorroborated testimony of an accomplice. It is an established practice that it is unsafe to rest conviction on the evidence of a guilty partner in an offense without independent corroboration on the material particulars. Corroboration need not be direct, it is sufficient even though it is merely circumstantial of his connection with the offense.

1. c) Dumb Witness:- A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs; but such writing must be written and the signs made in open court. Evidence so given shall be deemed to be oral evidence. Where it is stated by the judge that the deaf and dumb witness was unable to understand the questions put to him in chief or cross-examination, for the most part cannot make his meaning intelligible, his signs intended as answers cannot be accepted as evidence.

1. d) Prosecutrix Evidence: A prosecutrix is a victim. She is competent witness as per S.118 IEA. Her evidence must receive the same weight as it is attached to an injured in cases of physical violence. The court although can convict the accused without requiring corroboration but the judge should give some indication in his judgment that he had the rule of caution in mind and also give reason why corroboration is not necessary or give reason why he considered it to be safe to sustain the conviction without requiring corroboration.

38. Write briefly about various kinds of examinations.

Generally, the evidence of a witness consists of three phases. The first is Examination-in-Chief, the second is Cross-Examination and the last is Re-Examination and same is the order also (S.137).

Examination-in-Chief: The questions put to and the evidence elicited by the person who calls the witness is examination-in-chief.

Cross-Examination: The questions put by and evidence elicited by the adverse party from the witness is called cross-examination.

Re-Examination: Subsequent to the cross examination any questions put to and answers elicited by party who called the witness is known as re-examination.

The examination and cross-examination must relate to relevant facts, but the cross examination need not be confined to the fact to which the witness testified on his examination-in-chief.

39. Explain about leading questions?

Ans: According to S.141 a leading question is one which suggests the answer to the witness or which the person putting it wishes or expects to receive. A question itself contains answer. Ex:– Did you not see the accused running with a blood-stained knife from the scene of murder?. It is needless to say that both the chief or cross is carried with the aid of an advocate and chief is examination of witness by one‘s own counsel and cross is examination by opposite counsel. If in the examination-in-chief if witness is allowed to speak yes or no to the questions posed by his counsel, it is nothing but testimony of a counsel of the case. Therefore, law prohibits asking of leading questions in the examination-in-chief or re-examination except with the permission of the court (S.142). However, they can be asked in cross-examination (S.143).

40. What is meant substantive evidence?

The term substantive refers to real or important. Substantive evidence means real evidence. Judgment of a court must be based upon real evidence. Substantive Evidence is the evidence offered to support a fact in issue.  The depositions of witnesses before the court are substantive evidence. However there are two exceptions to this rule (a) Dying declaration (2) Confession.

41. What does the term mean corroborate?

The term corroborates evidence means Supplementary evidence provided to strengthen or confirm the substantive evidence. If a particular document has a value of corroboration or contradiction it has no value unless person who is party to such document comes before the court and give evidence as a witness. Those documents shouldn’t be looked as a part of evidence either for corroboration or contradiction at least one party to it has come and deposes before the court.

The statement which may be proved under the section in order to corroborate, may be verbal or in writing. The force of any corroboration by means of previous consistent statements must evidently depend upon the truth of the proposition that he who is consistent deserves to be believed. According to S.157 the testimony of witness is allowed to be corroborated with the help of any former statements made by him in respect of the fact in issue or relevant fact, statement made at or about the time when the fact in issue took place or made before any authority legally competent to investigate the facts. Section.157 I.E.A applies to a case where a witness is sought to be examined with reference to his earlier statement.

 Furthermore, as per S.156 when the evidence given by a witness is intended to be corroborated, questions can be asked as to any other surrounding circumstances or events which he observed at or near the place at which such relevant fact occurred. The rule contained in the S.157 applies to statements U/S 32 or 33 of the evidence Act also (S.158). In fact, statements U/S 32 or 33 can be used not only for the purpose of corroboration but also for contradiction.

Use of corroboration: If the evidence of witness is corroborating with his earlier version, it carries more value, as it is safe to act upon such evidence being consistent with earlier version and unshaken by cross-examination.

42. What is contradiction?

It means negate, denying by the same person with his earlier version. This is a general English dictionary meaning. But under law, it is different. It is defined under S.145 of the Act. A person is said to be contradicted with his previous statement only when a party makes a statement inconsistent with his previous statement is put to him and given an opportunity to explain the same. If the previous statements in writing of a witness is to be contradicted (can be used as evidence against him) it must shown to witness and he must be given an opportunity to explain the contradiction. However, there is no bar to cross-examine a witness to with respect to his previous statements without showing him the writing. Use of contradictions: The contradictions are valuable material and if they effect the root of the case, it is a ground to reject the evidence of such witness. Baladin v. State of U.P., AIR1956SC181.

43. What is omission? Whether omission amount to contradiction?

Ans: Mentioning a material fact first in the court without it being mentioned at a previous point of time despite opportunity to state the same is called as omission. Ex: Non-mentioning of certain facts either in F.I.R, 161, 164,etc., but made before the court for first time in the witness box. An omission to state a fact or circumstance in the 161 statements may amount to contradiction if it appears significant and otherwise relevant. See explanation to S.162 Cr.P.C.

EX: 1: Before police: A stabbed B over head.  

Before Court: A stabbed B over head and stomach. In the statement before the police the word only can be implied i.e. the witness saw only A stabbed B over head.

EX: 2: Before police: A stabbed B & ran towards north side;

Before Court: A stabbed B and ran towards south side. Since it is not possible to run towards south and north direction at same point of time, one of them must be necessarily false. In the statement before the police the word only can be implied i.e. the witness saw only A stabbing B

44. What are the values of statements or reports prepared by Police?

45. Whether a person summoned to produce a document becomes a witness?

Ans: No, as per section 139 of the IEA, a person summoned to produce a document doesn‘t becomes a witness. He does not be cross-examined unless and until he is been called as witness.

46. Whether a witness who is having valid objections to produce a document, when he is summoned to produce document is he be excused from withholding the document?

Ans: No, S.162 insists that a witness who has been summoned to produce a document shall bring such document to the court if it is in his possession or power. A witness who has been summoned is not excused from withholding the document although he may have valid objection for its production or admissibility. His first obligation would be to bring the document and raise any objection if he has any. The court, if it sees fit, may inspect the document and determines the admissibility of the document in evidence. The court may in this regard may take other evidence determine the admissibility of the document in evidence. This rule applies to S.123 of the Act.

47.When a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, is he bound to make the document as a part of evidence?

 Ans: yes, he is bound to make it as part of evidence. According to S.163 When a party calls for the production of particular document by giving a notice to the adverse party and has inspected the document on its production, the adverse must make the document as a part of evidence.

48. Whether a party who is in possession of a document refuses to produce it when a notice is served on him for its production, can he subsequently make the document as part of evidence?

Ans: No, According to S.164: When a party who is in possession of a document refuses to produce it when a notice is served on him for its production, he cannot subsequently make the document as part of evidence unless the party asking for production consents or court gives permission.

49. Explain the power of a Judge to put questions to any witness or order production of any document with regard to the provisions of the IEA.

Ans: A court has unlimited power U/S 165 of IEA, to put any question to any witness or order him to produce any documents. This invariably should be done to do justice in the case, to ensure that no guilty go unpunished and no innocent person is convicted of an offence not committed by him. If the Magistrate finds that witnesses is not telling the truth he may put the question to make the matter clear. Under this section court may examine or recall or re-examine any witness in the interests of justice. Although the law allows the judge to put any question at any time, the time generally considered proper for an extended examination is when the lawyers for both parties have finished their questions or at least when the lawyer examining the witness at the time is passing on to a new subject. Where contingency arises on the part of the prosecutor due to omission of certain facts, the court may act u/s 165 and may question the witness to elicit the matter.

Restrictions on the power of the Judge:

1. The judge must cross-examine or order the production of a thing only to obtain proper proof of relevant facts.
2. Though irrelevant questions may be put by court, the judgement must be based upon the facts declared by this act to be relevant and duly proved.
3. The court shall not compel any witness to answer any question or to produce any document which are privileged u/s 121 to 131 both inclusive.
4. The judge shall not ask questions which are held to be improper u/s 148 and 149. A judge shall not dispense with primary evidence of documents for the purpose of proving the contents of a document unless justification is shown for the admissibility of secondary evidence u/s 65 of the Act

50. What are the various methods provided under IEA to test the credibility and reliability of the witness?

Ans: To act upon the evidence of the witness it must be credible. The credibility of the witness can be questioned in two ways. The one is posing questions to the witness himself and the other is by bringing independent evidence i.e., examining a witness.

Ist method: The credibility of the evidence varies from the person who deposed the fact i.e., his connection to the case and position he holds in the life or his character and conduct (S.146). In order to ascertain the same the witness can be questioned on the following issues. They are: a) Questions that test the veracity of a witness, b) Questions that establish the identity of the witness and position he holds in the life, c) Questions connected to the character of the witness.

IInd Method: S.155 enables the party to give independent evidence witness for the purpose of impeaching the credit of witness so as to convince the mind of the court that the evidence of the witness in question is not safe enough to be relied on.

1. By receiving evidence of persons who can testify that they, from their knowledge about the witness, believe him to be unworthy of credit.
2. Independent evidence can be adduced to impeach the credit of witness by showing that he is a professionally hired witness receiving a bribe or some other corrupt inducement.
3. By showing that the witness has made statements on previous occasion which are inconsistent with any party of his evidence, and which are liable to be contradicted.

Proof of such contradictory statements can be given to the extent which S.153 permits such contradiction. The previous contradictory statements made by a witness can be used for the purpose of discrediting his evidence but not other witnesses. The FIR which is recorded U/S 154 and 156 Cr.P.C can be offered as proof for the purpose of proving the inconsistency between FIR and the evidence given by witness.

51. Write a note on Hostile Witness?

Ans: Section 154: If a party calls a witness but such witness unexpectedly turn hostile towards the cause of the party or he may be unwilling to speak truth, such a witness is called as hostile witness. In such cases it is just reasonable that the party calling such witness must be given an opportunity to put questions that can be asked in the cross examination.  

Value of hostile witness evidence: Court can rely upon the evidence of hostile witness evidence to the extent it is supported by other evidence on record.

52. Write a note on Refreshing Memory?

Ans: Section 159 to 161: Section 159 permits a witness to refresh his memory by making reference to any writing made by him if court opines that same fresh in the memory of the witness at the time of transaction or so soon afterwards. Further, witness can also be permitted to refer any document written by any person provided if it is seen by him in above said time. An expert may refresh his memory by reference of professional treatises. Witness can refresh his memory with the aid of copy of the document also provided he gives proper explanation for the absence of original.

S.161 says the above said document through witness refreshed his memory must be shown to cross-examiner also, if he asks. If a witness who is having valid objections to produce a document, when he is summoned to produce document doesn’t produce it, subsequently he can’t be allowed to produce the same. 

53. What are the limitations on the counsel conducting cross-examination?

Ans: If the character of the witness is freely allowed to be attacked in the cross examination, it is natural that no self respecting witness would be inclined to appear in the court to depose evidence. It is therefore necessary to avoid unpleasant questions being put to the witness. Some protection must be assured to him. They are hereunder:

1. In the cross examination any question that imputes anything to the witness is permitted provided it would seriously affect the opinion of the

Court as to the credibility of the witness on the matter of which he testifies. However, if there is a great disproportion between the imputation made against the witness‘s character and the importance of his evidence, court shall not allow the counsel to ask such questions (S.148). It is one of the principles that the Court may, if it sees fit, draw, from the witness‘s refusal to answer, the inference that the answer if given would be unfavorable.

1. Court has power to direct the lawyer not to ask the question referred under S.148 if such imputation is not well founded or it has no reasonable grounds (S.149).
2. Section 153 says when the witness answers a question relating to the inquiry which is put to him to shake his credit by injuring his character no evidence shall be given to contradict the answer given by the witness. Whatever be the answer the witness gives, it must be received without any contradiction. However if he answers falsely he may afterwards charged for giving false evidence. To this above rule there are two exceptions: (a) previous conviction (b) impeaching his impartiality. In both two cases witness answers can be contradicted.

1. Similarly, S.151 authorizes the court to forbid indecent or scandalous questions being asked even though such questions or enquires may have some kind of bearing on the questions before the court.
2. e) Furthermore, S.152 authorises that court to forbid any question which appears to it to be intended to insult or annoy, or which, though proper in itself appears to the court needlessly offensive in form.
3. f) If the advocate crosses the above limits and he is ruthless in questioning the witness and thereby injuring the character of witness and same is not based on reasonable grounds, the court can report the actions of such advocate to the appropriate authority i.e., Bar Council or High Court (S.150).

54. What is meant by Issue Estoppel? When does it apply in a criminal proceeding?

The rule of issue estoppel arises in criminal proceeding. In a criminal trial is that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favour of an accused, such a finding would constitute an estoppel or res judicata against the prosecution, not as a bar to the trial and conviction of the accused for a different or distinct offence, but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently even for a different offence which might be permitted by the terms of Section 300. This is was discussed by a Constitution Bench of the Supreme Court in Manipur Administration v. Thokchom Bira Singh.  

1. Who are the different Kinds of Parties to a Negotiable Instrument?

Ans: Drawer: The maker of a note, bill or cheque is called the drawer.

Drawee: The person who is directed to pay is called the drawee.

Acceptor: In case of a BOE, the drawee becomes the acceptor when he signs his assent upon the bill and delivers the same or gives notice of such acceptance to the holder or to some person on his behalf. A cheque is not required to be accepted by the drawee.

Payee: The person to whom the payment is to be made is called the payee.

Indorser: The person who indorses the NI in favour of another is called the indorser. Indorsee: the person to whom a NI is indorsed is called the Indorsee.

2. Define Promissory Note.

Promissory Note:  It is defined under Section.4 of the N.I Act and Section 2(K) of the Limitation Act, 1963.

Promissory note:- A promissory note is an instrument in writing (not being a bank-note or a currency note) containing an unconditional undertaking, signed by the maker, to pay a certain person or to the bearer of the instrument.

Ex: I promise to pay B or order Rs 500.

Limitation Act: It says Promissory Note means any instrument whereby the maker engages absolutely to pay as a specified sum of money to another at a time therein limited, or on demand, or at sight.

3. Bill of Exchange:

It is defined u/S.5 of the N.I Act, 1881 and s.2(c) of the Limitation Act, 1963.

A  Bill of exchange is an instrument in writing containing an unconditional order, signed by the maker, directing a certain person to pay the bearer of the instrument. There are three parties to a bill of exchange viz., a drawer, drawee and payee.

Limitation Act:  It says bill of exchange includes a hundi and cheque.

4. Define Cheque.

Cheque:- It is defined under S.6 of the N.I Act, 1881.A cheque is a bill of exchange drawn upon a specified banker and payable on demand. Thus cheque is Bill of exchange, with the following two additional qualifications :(i) it is always drawn on a specified banker, (ii) it is always payable on demand.

5. Distinction between Pro note and BOE:

1) In a Pro note there only two parties – the maker and the payee, In BOE there may be three parties- the drawer, the drawee, the payee. A note is never payable to the maker himself, while in the bill the drawer and the payee may be the same person. 2) A note contains an unconditional promise to pay a certain sum of money to the payee or his order, while a Bill contains an unconditional order upon the drawee to pay a certain sum of money to the payee or to his order. 3) the liability of the maker of a note is primary and absolute and in case of BOE it is secondary and conditional. 4) the maker of a note stands in immediate relation with the payee, while the drawer of a bill stands in immediate relation with the acceptor and the payee. 5) In case of dishnour of a bill, due notice of dishonour must be given to the drawer and the immediate indorsers, but no such notice is required to be given to the drawer in case of dishnour of a note.

6. Distinction between Cheque and BOE:

1) A BOE may be drawn on any person, while a cheque is always drawn on a banker 2) A BOE may be payable on demand, or on the expiry of a certain period, or on a certain date, or at sight, while a cheque is always payable on demand. 3) A bill must be accepted before payment can be demanded on it, where a cheque requires no acceptance as it is intended for immediate payment. 4) A grace of three days is allowed in case of time bills, while no such grace is allowed on cheques. 5) A cheque doesn’t require any stamp whereas bill is ordinarily stamped. 6) A cheque may be crossed, but not bill. 7)A cheque is not required to be noted or protested for dishonour, while a bill is required to be noted and even protested in some cases.

7. Holder: – It is defined u/S.8 of the Negotiable Instruments Act, 1881. Any person on his own name entitled to the possession and to receive or recover the amount due thereon from the parties thereto of a Negotiable Instrument. If the negotiable instrument is lost or destroyed, its holder is the person so entitled at the time of such loss or destruction.

8. Holder in due course: – It is defined u/S.9 of the Negotiable Instruments Act, 1881. Holder in due course means any person who for consideration became the possessor of a Negotiable instrument if payable to bearer, or the payee or indorsee thereof, if payable to order, before the amount mentioned in it became payable and without having sufficient cause to believe that any defect existed in the title of the person from whom he derived his title.

9. A minor issues a cheque in discharge of a liability and it was dishonored, whether he is liable to be prosecuted u/S.138 of the N.I Act.

Minor or unsound person is incompetent to enter into a contract as per S.11of the Indian Contract Act, 1872. However, S.26 of the Negotiable Instruments Act 1888 permits unsound or minor to draw, indorse, deliver and negotiate a negotiable instrument so as to bind all parties except himself.  Thus they are empowered to convey valid title and acquire rights over the negotiable instrument but can’t be burdened with liability.

10. What is meant by Material Alternation?

S.87 talks about Material alteration. Any alteration or changes in the instrument which changes the rights and liabilities of the parties to the instrument is called material alteration. Material alteration makes the instrument void. Material alteration discharges those who became parties prior to the alteration. It makes no differencec whether the alteration is beneficial or prejudicial. Ex: Alteration or Change of amount or interest rate in the instrument contrary to contract is a material alteration.

11. What is meant by Indorsemnt?

Ans: The act of signing on the back of the instrument by the transferor so as to complete negotiation is called as Indorsement.

12. What is Negotiation and how it is done?

Ans: Negotiation means the transfer of property or ownership of the instrument from one person to another in such a manner as to convey title and to constitute the transferee, the holder thereof. Negotiation can be done by two ways: a) Indorsemnt and delivery, if, it is payable to order b) Mere delivery without any indorsemnt, if it is payable to bearer.

13. What are the essential ingredients of offence u/S.138 of N.I Act?

To constitute Civil Liability for recovery of cheque amount, mere non-payment of money upon demand is adequate. However, in order to constitute criminal liability the following conditions shall be fulfilled:

1. The cheque shall be issued for the discharge of any legally enforceable debt or other liability.
2. It shall have been presented within the period of six months or within the period of its validity whichever is earlier.
3. The cheque is returned by the bank unpaid due to insufficiency of funds in the accused bank account.
4. The payee has given a notice to the drawer claiming the amount within 30 days of the receipt of the information by the bank.
5. The drawer failed to pay within 15 days from the date of the receipt of notice.
6. If the accused didn’t pay the amount within fifteen days, his omission of non-payment amounts to offence on 16^th day.

The complaint should have been failed within one month from the date of expiry for the payment of amount before a Metropolitan Magistrate or JMFC.

14. What is meant by Crossing of Cheque? What are Different types of Crossing?

A crossed cheque is one which bears on its face two parallel transverse lines, usually on the top left hand corner of the cheque. The payment of a crossed cheque can be obtained only through a banker. The holder has first to open an account with some banker and then deposit the cheque into his account to enable the banker to collect its payment on his behalf and credit it into his account. This makes it easy to trace the receipt of money, if it subsequently turns out that some wrongful person has obtained the payment. On other hand if such crossing is absent such cheque is called open cheque. An open cheque is therefore, prone to a great risk. If the rightful holder of a cheque loses it, any wrongful person who finds it may go to the bank and obtain payment, unless the payment has already been stopped.  Types of Crossing: a) General Crossing b) Special crossing.

1. a) General Crossing: A cheque is said to be crossed generally when two parallel transverse lines are drawn with or without the words ‘and company’, ‘account payee only’ or ‘not negotiable’ or any abbreviation thereof, between the lines, but there is not the name of any bank. When a cheque is crossed generally, the drawee bank shall not pay it unless it is presented by a banker.

1. b) Non-Negotiable Crossing: When the crossing carries the words ‘not negotiable’, it is said to be ‘not negotiable’ crossing. According to S.130 a, mere writing a word of “Not negotiable” does not mean that the cheque is not transferable. It is still transferable, but the transferee cannot get title better than what transferor had. The cheque remains fully negotiable but is negotiable value is diminished. Any person taking such a cheque doesn’t become a HDC, he only gets the rights of the transferor. Ex: Venu drew a blank cheque crossed ‘not negotiable’ and handed it over to his agent to fill in the amount and the name of the payee. The agent fraudulently completed the cheque and transformed to one P, in payment of a debt of his own. Held, the agent had no title to the cheque and as such P had no better title to the cheque.
2. c) Account Payee only Crossing: Theoretically speaking, a cheque crossed ‘account payee only’ remains transferable. In Practise, however, the transferee will find it difficult to get the cheque collected for him. Account payee only crossing is a direction to the collecting banker that the proceeds of the cheque shall be received only for the payee and credited to his account. If the banker receives the proceeds of such a cheque for and on behalf of any person other than payee, the banker will be guilty of negligence. Thus a cheque crossed account payee only becomes non-negotiable for all practical purposes.

Special Crossing: A cheque is said to be crossed specially, when the lines of crossing carry the name of a banker with or without any additional words, in between the lines. The payment of a special crossed cheque can be obtained only through the particular banker whose name appears in between the lines or through its agent bank for collection. A cheque may be crossed by drawer, holder and banker. Drawer: The drawer of a cheque may cross it generally or specially. Holder: Where the cheque is open the holder may cross it generally or specially. Where the cheque is crossed generally, the holder may cross it specially. Banker: Where the cheque is crossed generally or specially, the holder may add the words ‘not negotiable’ Banker: where the cheque is crossed specially, the banker to whom it is cross may against cross it especially to another banker or his agent for collection. This is also known as double crossing and is generally resorted to when the banker in whose favour the cheque is specially crossed is not a member of the clearing house or doesn’t have a branch where the cheque is to be paid.

15. What is difference between Inland and Foreign Instrument?

Ans: Inland and Foreign Instrument: A promissory note, bill or cheque which is both drawn and payable in India or drawn upon any person resident in India, is deemed to be an inland instrument. An instrument which is not an inland instrument is a foreign instrument.

16. What is an Inchoate Instrument?

Ans: An instrument which is incomplete in some respect is called an inchoate instrument. When a person signs and delivers to another, a stamp paper, either wholly blank or after having written thereon an incomplete NI, he thereby authorises that other person to make or complete upon it a negotiable instrument for any amount not exceeding the amount covered by the stamp. The person so signing is liable upon such instrument, in the capacity in which he signed the same, to a HDC, for such amount. However, a person other than HDC, can recover from the person signing that instrument only the amount intended by him to be paid thereon.

17. What is meant by Escrow?

Ans: An Escrow is a NI delivered conditionally or for a special purpose as a collateral security or for safe custody only, and not for the purpose of transferring the property therein absolutely. As between the immediate parties, the liability to pay on an escrow doesn’t arise unless the conditions agreed upon are fulfilled or the purpose for which the instrument was delivered is not satisfied. However, a HDC of an escrow can sue on it irrespective of whether the conditions are fulfilled or the purpose is satisfied or not.

1. What are the essentials of Contracts?

Ans:  The Indian Contract Act,1872 deals with law relating contract between parties. S.2(h) ICA defines Contract is an agreement that is enforceable by law. Thus in this definition we find two elements :(a)An Agreement (b) Enforceability by law. The essential of contract are as follows:.

1. Offer and Acceptance: – For every contract there must be at least two parties, one making an offer or proposal and another accepting it. The offer must be definite and the acceptance must be unconditional. The acceptance must be communicated to the offer and according to the mode prescribed.
2. Intention to create legal relationship: – When the parties enter into an agreement, there must be an intention on part of the parties, to create a legal relationship. In the absence of such intention, the agreement does not become a contract. Such agreements are social agreements. (Balfour Vs. Balfour).
3. Lawful consideration:- Consideration means something in return. It is an advantage or benefit moving from one party to another. An agreement must be supported by lawful consideration to become a contract. Consideration need not be in cash. It can be an act, abstinence or a return promise. Ex.– X promises to sell his house to Y for Rs.2,00,000/-.  House is the consideration to y for parting with 2 lakhs is X’s consideration.
4. Capacity and competence of the parties to contract:- The parties to the agreement must  be competent to contract. A person is competent to contract if. (i) He has attained the age of majority.(ii) He is of sound mind and (iii) he is not disqualified to enter into contracts by law. Ex: He becomes insolvent. If any of the above requirements are not satisfied the agreement does not become a contract.
5. Free and Genuine consent: When a proposal is made by one party, the consent or acceptance of the other party must be free. Consent is said to be not free it has been obtained through coercion, undue influence, misrepresentation or fraud. If the consent to the proposal has been through any of the above means, the contract become voidable at the option of the party whose consent has been so obtained.
6. Lawful object: The object or the purpose of the agreement must be lawful the object must not be illegal, immoral or against public policy.
7. Agreements not declared void: The agreement must not have been expressly by declared as void by any law in force. If it is so, the agreement cannot become a contract.
8. Certainty and possibility of performance: The agreement must be certain, definite and possible to be performed. If the agreement is to perform an act that is impossible to be performed, then it does not give rise to contractual obligations. Ex: A agrees to sell 100 tones of oil to B. This is not a valid contract as agreement does not specify the type of oil to be sold. Similarly, if X agrees to put life into the dead body of Y’s wife for a price’, Contract is not valid as same is an impossible act.
9. Legal Formalities: A contract may be in writing oral. Law does not differentiate between these two contracts. However it is in the interest of the parties that the contract is in writing. There are some other legal formalities which have to be fulfilled in order to make an agreement legally enforceable. Thus formalities like registration stamp, witness etc, must be complied with where ever necessary.

2. Write a note on different kinds of Contracts:

Classification of contracts:  Contracts may be classified on the basis of (a) Validity (b) Formation (c) Performance.

Classification on the basis of validity:-A contract is based on an agreement.  An agreement becomes a contract, if all the essential elements are satisfied.  In such a case, it becomes a valid contract.  If one or more of the elements are not present the contract is voidable, void, illegal or unenforceable. Therefore on the basis of validity contracts can be classified as: (i) Voidable contract. (ii) Void contract. (iii) Unenforceable contract. In addition to the above there are void agreements and illegal agreements:

(i) Voidable contract: Section.2 (i) says an agreement that is enforceable by law at the option of one or more of the parties thereto, and not at the option of other, or others as Voidable Contract. In case of voidable contract, the consent of the parties to the contract is not free. This may happen due to Coercion, Undue Influence, Fraud, Misrepresentation, and Mistake. The party whose consent is not free may rescind the contract (avoid the contract) or decide to be bound by it. This option is not available to other party.  A Voidable contract is valid until it is avoided by the party entitled to do so.  Ex: L agrees to sell his car to M for Rs.5,000/- only.  His consent is obtained by use of force.  The contract is Voidable, which means that if L chooses he may stand by the contract or avoid the contract.

(ii) Void Contract: A contract which is entered into may be valid initially.  It may subsequently become void due to the occurrence of some event.  A contract which was valid initially, but has become void due to the occurrence of some event is called a void contract. Sec.2(j) defines a void contract as “A contract which ceases to be enforceable by law becomes void when it ceases to be enforceable”. Ex: A contract to import goods from another country is a valid contract but if war breaks out between the two countries, the contract becomes a void contract.

(iii) Unenforceable contracts:  An unenforceable contract is one which cannot be enforced in the court of law due to some technical defect, such as stamping and registration has not been done where it is necessary such contracts may be executed or carried by the concerned parties. But in case of a breach, the aggrieved or affected party cannot approach the court of law for remedy.  In addition to the above there are two more categories called the void agreements and illegal agreements.

(iv) Void agreement: An agreement that is not enforceable by law in a void agreement.  Such agreements do not create any legal rights, and are void ab-initio (i.e., From the beginning). Ex: An agreement with a minor is a void agreement.

(v) Illegal Agreement:  An illegal agreement is one which goes against some rule of basic public policy or which is criminal or immoral in nature.  An illegal agreement is not only void between immediate parties but has a further effect on the collateral transactions. Ex: A rents B’s house to store some smuggled goods.  B is aware of A’s purpose.  The agreement between A and B is collateral to the agreement of buying smuggled goods.  Both agreements are illegal.

(v) Unlawful agreement: An unlawful agreement is one which like a void agreement is not enforceable by law. It is void abiinto and is destitute of legal effects altogether. It affects only the immediate parties and has no further consequences. All collateral transactions to it also become tainted will illegality.

3. An offer can’t be accepted after it has been terminated. Explain when an offer ceases to be capable of acceptance.

Ans: Yes, an offer can’t be accepted after it has been terminated. An offer ceases to be capable of acceptance or offer lapses or comes to an end in the following circumstances:

1)  By communication of notice of termination of offer to the offree

2) By lapse of the specified or reasonable time  3) By death or insanity of the offer  4) By counter offer 5) By not being accepted according to the prescribed or usual mode. 6) By non-fulfillment of a condition precedent.

4. Whether a promise to pay time barred bet is valid and if so under what conditions?

Ans: An agreement without consideration is void. But to this rule, certain exceptions are recognized and amongst them promise to pay a time barred debt is one. It is set out u/s.25(3) of the Indian Contract Act,1872.  The conditions to be fulfilled for its maintainability in the court of law are: – It shall be in writing and signed by the person or by his agent to pay debt either in part or full, which the creditor might have enforced but for the law for the limitation of suits.

5. Write a note on Privity of contract or Stranger to Contract?

Ans: Only parties to the contract can enforce contractual obligations, but no other, even if it solely for the benefit of third party. It is known as privity of contract. But it has no applicability in India. It was held by the S.C in M.C.Chacko Vs. State Bank of Travancore. Thus a person who is not a party to the contract can enforce contractual obligations. The following are the situations: (a) The beneficiary may enforce a contract though he is a stranger to the contract creating trust.  (b)Where a an agreement is made in connection with marriage and a provision is made for the benefit of a person, he may take advantage of the agreement although he is not a party to it.  (c) If a provision is made in a partition or family arrangement for maintenance or marriage expenses of female members, such members though not parties to agreement can sue on the footing of the agreement.  (d) If a charge is created in favour of a stranger in respect of a specific immovable property. (e)Acknowledgment or estoppel  (f) Covenants running with the land

6. Write a note on Misrepresentation?

Ans: S.16 ICA deals with it. Misrepresentation is a statement of fact which one party makes in the course of negotiations to another with an intention to induce the other party to enter into a contract.  Representations may be expressed by words spoken or written or implied from the behaviour of the parties.

7. Write a note on Fraud?

Ans: An intentional material representation of a fact with an intention to induce a party to enter into a contract and act upon it. Due to which, party acted upon it and suffered an injury. S.17ICA deals with it. The following acts committed by a party to a contract with intent to deceive another party or to induce him to enter into the contract are also called as frauds:

(i) A false suggestion known to be false or not believed to be true

(ii) The active concealment of a fact, with knowledge or belief of the fact

(iii)A promise not intended to be performed,

(iv) Doing any other act fitted to be deceive

(v) Doing any such act or omission as the law specially declares to be fraudulent.

Mere silence as to facts likely to affect the willingness of a person to enter into a contract is not fraud unless the circumstances of the case reveal:

(a) That it is duty of the person keeping silence to speak; or (b) his silence is, in itself equivalent to speech.  In either case of misrepresentation or fraud the aggrieved party can: (a) Avoid or rescind the contract (Voidable). (b)Accept the contact but insist that he shall be placed in the position in which he would have been if the representation made had been true (rescission).

8. Doctrine of Quantum Meruit:

Ans: Quantum meruit literally means “as much as merited or earned”. When a person has done some work under a contract and the other party repudiates the contract or some event happens which makes the further performance of the contract impossible then the party who has performed the work can claim remuneration for the work he has already done.  The claim for quantum meruit arises in the following cases:- 1) When an agreement is discovered to be void u/S.65. 2) When something is done without any intention to do so gratuitously u/s.70 3) when there is an express or implied contract to render service but there is no agreement as to remuneration 4) When the completion of the contract has been prevented by the act of the other party to the contract 5) When a contract is divisible.  6) When an indivisible contract is completely but badly.

9. Write a note on Quasi Contracts?

Ans: Quasi Contracts: A Quasi contract is not a contract between two parties but a legal obligation imposed by court of law, which puts both parties in the same position as if there is a contract between them.

The concept of quasi contracts is dealt under S.68 to 72.

S.68: If a person under obligation or to a person who can’t enter into contract is supplied with Necessaries suited to his condition in life, the person who has furnished such supplied must be reimbursed from the property of that person.

S.69: Person who is interested in payment of money which another is bound to pay.

S.70: Obligation of person enjoying benefit of non-gratuitous act:  New Model car.

S.71: Responsibility of finder of goods.

10. Write a note on Liquidated damages?

Ans: ‘Liquidated damages’ represent a sum fixed or ascertained by the parties in the contract, which is fair and genuine pre-estimate of he probable loss that might ensue as a result of the breach. A penalty is a sum named in the contract at the time its formation, which is disproportionate to the damage likely to accrue as a result of breach. The courts in India allow only reasonable compensation.

11. Define “Contract of Guarantee”, Surety”,”Principal debtor”, and “Creditor”.What are the nature of liablities under Contracts of Indeminty and Guarantee?

Indeminty Contract: S.124 of the Contract Act, says “A contract by which one party promises to save the other from the loss caused to him by the conduct of the promisor himself or by the conduct of any other person”.

The person who gives the indeminty is called the indemnifier, the person for whose protection indemnity is called Indeminty holder.

Example: A contracts to indemnify B against consequences of any proceedings which C may take against B in respect of a certain sum of Rs 2000. This is called Contract of indeminty.

Contract of Guarantee: A contract of Guarantee is also known as Contract of surety ship. S.126 of the contract Act defines a contract of guarantee as “ a contract to perform the promise or discharge the liability of a third person in case of his default”.

Example:A advances a loan of Rs100 to B and c promises to A that if B doesnot repay loan, he will do so. This is a Contract of Guarantee.

12. Write a note on Nature of liabilities under Contract of Guarantee and indemnity:

Scton 128 says the liability of surety is co-extensive with that of the principal debtor, unless it is otherwise provided by the contract.

Section 125 speaks about the liabilities of the indemnifier:

1. All the damages which indemnity holder may be compelled to pay in any suit in respect of any matter to which the promise to indemnify applies;
2. All costs which indemnity holder may be compelled to pay in any such suit if, in bringing or defending it, he did not contravene the orers of the indemnifier, and acted as it would have been prudent for him to act in the absence of any contract of indemnity, or if the promisor authorised him to bring or defend the suit;
3. All sums which he may have paid under the terms of any compromise of any such suit, if the compromise was not contrary to the orders of the promisor, and was one which it would have been prudent for the promisee to make in the absence of any contract of indemnity, or if the promisor authorised him to compromise the suit.

13. Agency doesn’t require consideration – Comment

Ans: S.185 says no consideration is necessary to create an agency.  The reason is as the affairs of the principal are placed in the hands of the agent, consideration in the sense of determent is enough to support the contract and as such no further consideration is necessary.   Therefore, an agent under a gratuitous contract of agency will be as much bound by his contract as a paid agent.

Max Marks: 80

Instructions

1. All questions are compulsory
2. All questions carry equal marks
3. Write your name and Phone number

Civil Law

1. Write a short note on the following:

1) Doctrine of Quantum Meruit 2) Will-full default

1. Distinguish between the following:

1) Relevant fact and fact in issue 2) License and Lease

III. Comment about the following:

1) Once a Mortgagor is always a mortgagor

2) Having a legal right and right to sue are not one and the same

1. Write about the following:

1)  Explain about Inherent Jurisdiction of a Civil court?

2)  How to prove an attested document especially WILL?

Criminal Law

1. Write a short note on the following:

1)  Expert Opinion  2) S.313 Cr.P.C

1. Distinguish between the following:

1) Robbery by theft and Robbery by Extortion

2)  Warrant case and Summons case

III. Comment about the following:

1) Cognizance and Cognizable case are two different words

2)  Every kind of intoxication exempts a person from criminal liability

IV. Write about the following:

1) Write a about Right of Private defense

2) Write about s.41A Cr.P.C?

FREE GUIDANCE FOR JR.CIVIL JUDGE (MAINS) EXAM

(Conducted by High Court of Hyderabad)

PALSAR offers result oriented Strategic Mains Guidance for Jr.Civil Judge Exam. The admission into this free course is subject to following rules and conditions.

Rules:

1. The admission is subject three hour theory exam followed by an interview. The decision of the interview committee is final.
2. The theory examination and interview will be conducted completely in accordance with the mode prescribed by High court of Hyderabad in its present notifications.
3. This is one month free course subject to registration charges.
4. The Mains Classes starts most probably upon declaration of screening result or even before depending upon circumstances.
5. The interested candidates are requested to send their profile containing following particulars to anilkirankumar@gmail.com or kiranjdg@gmail.com. The last date for applying is 20/8/2015.
6. Any kind of influence to get admission entails unilateral rejection of application.
7. During the course period student shall regularly attend classes and write all exams conducted by the institution and any deviation entails cancellation of admission.
8. No telephonic communication is accepted over this matter except over by above mail id’s.

CANDIDATE PROFILE

 




Prelims Jr.Civil Judge Exam by High court of Hyderabad on 12/07/2015

DISCLAIMER

Dear aspirant, 

PALSAR with the aid of its students from their memory could gather following questions asked in the exam. Apart from that it suggested safest answers and we claim no responsibility of their correctness and it is subject to decision of the High court.  This is only for educational purpose and for no other reason.

*********************************************************************************************************

Prelims Jr.Civil Judge Exam by High court of Hyderabad on 12/07/2015

1. S.72 of Contract Act deals with unjust enrichment
2. Court is under an obligation to apply S.10 of CPC. It is mandatory.
3. Adultery u/S.497 IPC is punishable is with five years imprisonment
4. Third days is the imprisonment for non-payment of maintenance u/S.125 Cr.P.C
5. Under Cr.P.C District & Sessions Judge has no power to quash the F.I.R.
6. 376 (d) : It is about rape on the management or on the staff of a jail, remand home or other place of custody established by or under any law for the time being in force or of a women’s or children’s institution, commits rape on any inmate of such jail, remand home, place or institution; or    S.376(g):–  commits rape during communal or sectarian violence.
7. Husband is not entitled to maintenance u/S.125 Cr.P.C.
8. The mother can acquire property of her daughter, who died intestate provided following are not there:   1) Sons, 2) Daughters or children of Sons and Daughters and 3) Husband.
9. S.191 IPC defines perjury (false evidence) and it is punishable u/S.193 IPC
10. An offence can be compounded provided it is listed u/S.320 Cr.P.C
11. S.38 of Specific relief Act sets out grounds for granting Perpetual injunction
12. S.31 Specific Relief Act talks about cancellation of instrument or decree.
13. Restitution of conjugal right petition can’t be allowed in favour of HIV patient
14. S.27 of limitation act talks about extinguishment of right in property upon expiry of limitation period.
15. The period for acquisition of Easement by way of prescription over government property is thirty years.
16. Time for issuing statutory notice in case of dishnonour of cheque is thirty days.
17. In a Suit for specific performance of contract plaint shall aver and prove readiness and willingness as per S.16(c) of the Specific Relief Act.
18. O.6 R.17 CPC- Amendment of pleadings can be allowed at any stage provided court comes to conclusion that despite exercise of due diligence the party could not have raised before commencement of trial.
19. There is no 1^st appeal against a claim whose value of subject matter is less than Rs.10,000/-
20. Suit has to be instituted in lowest court of pecuniary limits or lowest grade which has a competency to try – S.15 CPC.

21. A files a suit and was returned to comply with certain objections within 15 days but forgot to file within 15 days then the court to may permit for extension of time u/s. 148 of CPC.
22. Clerical and arithmetical errors can be carried out even after pronouncement of judgment (S.154 CPC).
23. Court has power to condone delay in appeals filed u/o 41.R 3A CPC.

24. In offences u/s 354 or 376 IPC, evidence of the character of the victim of or such person’s previous sexual experience with any other person is not relevant.
25. Accused Good character is relevant.
26. S.11 IEA- Facts which are inconsistent with fact is issue are relevant
27. Preparation is also punishable with respect to certain offences.
28. The punishment for attempt to commit offence is ½ of the punishment provided for that offence.
29. Rent control act is not applicable to rent exceeding Rs.3500/- Hence, for rent of Rs.4000/- it is not applicable.
30. Will must be in writing and attestation is mandatory. Registration is optional.
31. Plaint shall contain material facts but not evidence or law
32. Industrial disputes Act bars Jurisdiction of civil court.
33. As per Cr.P.C complaint can either oral or written to a magistrate. It shall not be to a police.
34. Extra-judicial confession is not substantive piece of evidence
35. A judgment passed by a court having no jurisdiction doesn’t operate as resjudicata
36. Inquest speaks about apparent cause of death.
37. Agent can’t appoint sub-agent unless expressly permitted.
38. O.I Rule.8 talks about representative suit.
39. Mutatis mutandis phrase meaning “the things being changed which need to be changed” or more simply “the necessary changes having been made”.
40. Unduly stamped document can be impounded by any public servant or court but not police officer.
41. Agent damaged the property of other in the course of his duties and in such case principal is liable.
42. Person dispossessed from immovable property must file a case within six months as per S.6 of the Specific relief Act.
43. Where in the course of any inquiry into, or trial of, an offence, it appears from the evidence that any person not being accused has committed any offence for which such person could be tried together with the accused, the Court may proceed against such person for the offence – U/s 319 Cr.P.C
44. S.138 is a Compoundable offence
45. Injury under IPC relate to: mind, body, reputation, property.
46. Inconsistent pleas can be raised in written statement
47. As per Rule.37 of Criminal rules of Practice one accused can represent the other accused.
48. Seven years boy committed an offence, he is exempted from criminal liability as S.82 IPC
49. A married B, later child ‘C’ was born to them. Thereafter marriage is declared as void, however, child remains to be Legitimate (S.16 Hindu Marriage Act,1955).
50. Will need not be registered
51. Third party exhibits are marked in X series.
52. A sold motor car to C. Registration is not required. It is a movable property.
53. In Mortgage registration and attestation are mandatory.
54. S.10(c) grounds for eviction under rent control Act – armed forces.
55. For possession of immovable property based on previous possession and not on title, when the plaintiff while in possession of the property has been dispossessed, — 12 years
56. Section 5 of Limitation Act does not apply to – Provisions of O.XXI CPC.
57. The jurisdiction to decree specific performance is – Discretionary.
58. Hindu Marriage Act is not applicable to – Parsis
59. If either of the party to has marriage has spouse at the time of marriage, it is Void Marriage.
60. Marriage occurred due to fraud – Voidable
61. Cancer is not a ground for divorce.
62. Desertion for two years is a Ground for divorce.
63. Maintenance pendete lite and expenses of proceedings can be filed u/s 24 of HMA by   — Either wife or husband.
64. Judicial work can be done on holiday in exceptional circumstances with the consent of both the parties.
65. After conclusion of trial and arguments, the court came to know that court has no jurisdiction and in such case, Suit has to be returned to file before proper Court.
66. The fair copy of judgment required for record in the Court shall be prepared within five days.
67. Normally, in civil cases when judgment is reserved, it shall pronounce within thirty days.
68. Execution of probate of wills is Optional.
69. Execution of Perpetual injunction shall be under – O.21 Rule.32 CPC
70. Books of Accounts is not liable for attachment S.60 CPC.
71. As per S.80 CPC notice is mandatory to file a suit against the Government.
72. A suit to be filed by or against the Central Government Union Govt. represented by the Secretary to the government. .
73. Public interest litigation under CPC can be filed – U/s 91 CPC
74. A person files a suit for several reliefs but omits to seek to certain reliefs and as such subsequently, he is barred from claiming reliefs which were omitted.
75. Doctrine of “Non-Traverse”:- O.VIII Rule.3, 4 & 5 CPC.
76. Orders passed by the Civil Court u/O.21 R.97 are subject to Revision only.
77. Execution of mortgage deed may be at place where immovable property is situated.
78. The easement by prescription cannot be granted for Easement by utilizing ground water
79. Acquisition of easement by prescription – Twenty years
80. U/s. 10(3) of R.C.Act who can be put into possession – Land Lord
81. A contract which is not void generally – Valid Contract.
82. In a contract, though penalty is agreed, for breach of contract, court ahs discretion either to award such penalty or such reasonable compensation not exceeding the amount so fixed for.
83. M direct N to damage the house of C and M says he will indemnify for the consequences to N. N damages house of O. Then M is liable for damages to O
84. The liability of sureties is co-extensive with that of Principal Debtor (S.126 of Contract Act)
85. Novation means – Substitution of new contract with the old one
86. The agreement of sale is doesn’t create charge or interest over the immovable property. However, if the seller wrongfully declines to deliver the property, buyer has charge over the property to the extent of pre-paid purchase money.
87. Mortagor transfer his property with a condition that it shall be re-transferred after payment of due amount – English Mortgage.
88. Motive and preparation are – Relevant facts
89. If a document is required by law to be attested then atleast one attester shall testify
90. Attesstor need not know the contents of the documents.
91. A court has passed orders for permanent maintenance and filed a petition after 3 or 4 years to enhance maintenance. Whether it is maintainable – Yes
92. Police has no power to re-investigate the case after filing charge sheet.
93. The Magistrate can dispense with the personal attendance of the accused and permit him to appear by his pleader as per S.205 Cr.P.C.
94. The offence u/s 497 is compoundable with the permission of the Court.
95. The High court and sessions court has power of revision in Criminal cases.
96. A finds a key of Z’s house door, which Z had lost, and commits house trespass having opened the lock with key. – House breaking
97. Conviction can be given basing on sole testimony of dying declaration.
98. The court has to make copy of the judgement made available to the parties within five days of its pronouncement.

Dear friends,

PALSAR is thankful to the following for their help and support in placing the above questions and probable answers. Their names are: Mr.Shravan Kumar, Nageshwar rao, Barghavi, Fathima. Keep it up. We hereby inform everyone that anyone having any doubt can raise their legal question only and can be answered by any one. We hereby inform one and all that PALSAR is only a facilitator.

Thank you so much to all of you.

PALSAR.

Revised Key For Certain question in Mock Tests




Students raised doubts and pointed out mistakes in key w.r.t certain questions and they are hereby clarified.  They are hereunder:

Mock Test-I

Q.36.What is not true?
(a) Witness may be cross-examined as to previous statement in writing
(b) Leading question may be asked in cross-examination
(c) Person called to produce document can be cross-examined
(d) Party calling the witness may cross-examine him with the permission of Court
Comment : The Correct answer is Option “C”.  S.139 Evidence Act. It says Person called to produce document doesn’t become a witness. Hence, he can’t be be cross-examined and as such the statement mentioned in option c of Q.36 of Mock test-I wrong. Hence, the answer given by us as option B is wrong. we hereby correcting it. We regret. Thank you.

60. A lease of immoveable property does not determine:-
    (a) By efflux of the time limited thereby (b) on death of the lessor (c) By surrender
    (d) Where such time is limited conditionally on the happening of some event by the happening of such time.
    Comment: The appropriate option is b only but not a.  It is evident from S.111 of Transfer of Property Act. We regret.                                                                                                                                                                                                                                                                                   73.A, a tradesman leaves his goods at B’s house by mistake B uses the goods as his own. Then :-
    (a) B need not pay to A, provided it is gratuitous act
    (b) B is bound to pay A, provided it is non-gratuitous act
    (c) A & B are right  (d) None of the above

Comment: Let us read S.70 of Contract Act. It speaks as follows:
“Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such another person enjoys the benefit thereof, the letter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered”.
Thus central point to be determined to seek compensation is whether act is done gratuitously or not. If it is, he can seek compensation, otherwise not. In our question option (a) says B need not pay if it gratuitous and if it is not gratuitous B has to pay. This is option (b). Hence, both are right answers. The intention of A in preserving the goods is the central criteria. Intention is gathered from facts and circumstances and relationship of the parties.

93.Question which shall be determined by the court executing decree :-
(a) Decree obtained by fraud
(b) Whether any person is or is not the representative of a party
(c) Decree obtained by Collusion  (d) None of these
 Comment: The appropriate option is b only but not a.  We regret.

Mock Test-II

Q.47. Leading question:-

(a) May be asked in examination in chief (b) May be asked in cross examination
(c) May be asked in re-examination (d) Cannot be asked in any circumstances
Comment:  It’s a tricky question. The answer can be option’s A, B and C also.  However, it must be noted that usually leading questions can be asked only in Cross examination. In Examination-in-chief or re-examination, they can be asked only under specified circumstances like: Duly proved facts, admitted facts, introductory facts.  If in examination, this kind of question is asked mark that it is in cross-examination.  

82.In case of a gift if the donee must accept the gift: –

(a) During the life time of the donor  (b) He is competent to contract

(c) He must be have transferrable right over the property   (d) All the above

Comment: The right answer is option (d) All must be fulfilled .. it is not Mere competence . Read S.122 provio of T.P.Act in conjunction with S.7 of the T.P.Act. The answer is not b, it is option d.

98. 98.A gives a lakh of rupees to B, reserving to himself, with B’s assent the right to take back Rs. 10,000 at pleasure out of that amount This gift is :-
    (a) Absolutely Valid (b) Absolutely Invalid (c) This cannot be said to a gift (d) Holds good as to Rs. 90,000 but it is void as to Rs. 10,000.                           

Comment: The right answer is Option (d) But not (c).  Because, to the extent of Rs.10,000 only, it depends upon the will of the donor and as such to that extent only it becomes void. In this connection it must be informed that to the extent up to which it becomes depend upon the will of the donor only, gift becomes void but not entirely. Hence, gift to the extent of Rs.10000/- only void. The reaming portion is valid.

Section.126:  The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.

Mock Test-III

32. Under section 34, a declaration can be sought by a) a stranger who has no interest b) a person having a legal character or a right as to property which is denied c) a person whose legal character or right to property not denied (d) all the above. Comment: The appropriate option is b only but not a.  We regret.

52. Propositions are : I.A void marriage remains valid until a decree annulling it has been passed by a competent court. II. A void marriage is never a valid marriage and there is no necessity of any decree annulling it.  III. A voidable marriage is regarded as a valid subsisting marriage until a decree annulling it has been passed by a competent court.  In respect of the aforesaid proposition which is correct

(a) I and III are correct and II is incorrect  (b) II & III are correct and I is incorrect,     (c) I, II & III all are correct                           (d) I & III are incorrect but II is correct.

Comment: B is right answer. We verified.

67. Husband convicted for offence S.……… IPC, entitled wife for divorce?   a)S.302 b) 304 A c) 377 d) Any one of them Comment: It is not only S.376 IPC but also S.377IPC

84. Amongst the one is eligible for succession? A) Murder b) Converter to another religion c) HIV Patient d) All  Comment: This is the right answer.

87. Among the following one is wrong? a) Agnates are person related through males b) Daughter is barred from claiming partition with brothers in respect of dwelling house c) Daughter is a coparcener d) None  Comment: As per latest law even daughter can claim partition with brothers in respect of dwelling house. Refer S. 23 of HMA.

88. Amongst the following one is right? a) Plea of limitation shall be specifically raised by the defendant b) Defendant can excuse the Plaintiff to continue the suit after limitation c) Court has to consider the plea limitation though it is not raised by defendant d) None  Comment: The appropriate option is C only but not a.  We regret.

89. Amongst the following one is right?  a) Upon expiry of time limitation, right extinguishes b) Upon expiry of limitation, claim bars c) There is no time limitation for execution of mandatory injunction d) None Comment: In fact, option B alone is right and the other two are wrong legal propositions.

91. Amongst the following one is Wrong? a) If the last day happens to be a holiday suit can be filed on the next working day b) If the advocates abstain from attending work, suit can filed on next working day c) Disability doesn’t come in way once time limitation starts.  d) None

92. The following time period shall be excluded from counting  a) Time taken for obtaining certified copies of award, Judgment, Decree b) Day of Judgment shall be excluded. c) Time taken for obtaining leave to sue as an indigent person d) All the above  Comment: It is true not must be there before ‘Shall’ in the question

95. Amongst the following one is wrong? a) Time taken for obtaining sanction from Government shall be excluded b) If a party is impleaded during the progress of suit limitation has to be reckoned from date on which he is impleaded or from any other date as the court orders. c) Suit for recovery of possession of immovable property is dealt under Art. 64& 65 d) None Comment: All are correct legal propositions.   Thus, nothing is wrong and as such answer is d option.

98.Among the following one is wrong?  a) If the special act provides time limitation, it prevails over Limitation Act. b) The time period in case of Suit for cancellation of document is counted from the date of knowledge c) Suit for setting aside sale of joint family property is Twelve Years. d) None Comment: All are correct legal propositions. Hence, option is d right.

PALSAR is very thankful to Mr. SHRAVAN KUMAR and Ma’m Jyothi for their pointed remarks so as to come up with right answers. Thank you so much.

Some important concepts which were not covered on the last day of Prelims Guidance Classes due to paucity of time:

1. If property is under attachment private alienation of property is void ( Sec. 64 CPC) Exception: Transfer of property or delivery of possession of the property in pursuance of agreement entered or registered before the attachment.
2. After sale becomes absolute property can be said to be vested in the purchaser from the date and time when the property was sold and not from the time when it becomes absolute (Sec. 65)
3. Rateable distribution of assets of J.Dr among his creditors(Sec. 73)
4. Resistance or obstruction of execution of a decree for possession of immovable property entails detention of civil prison up to thirty days. ( Sec. 74)
5. Courts shall not grant interim orders against the Government without giving notice ( Sec. 80 (2) CPC )
6. Decree against Government or against any public officer with regard to his officials functions shall not be executed unless three months time is given (Sec. 83)
7. Interpleader Suit Order 35, Sec. 88 CPC: When there are two rival claimants for any sum of money or amount from another person who infact has no interest in the dispute between those two, the said third person can institute a suit making them as defendants.
8. Agents and tenants cannot file Interpleader Suit (Order 35 Rule 5) against their principals or landlord interpleading them with others other than person claiming through their principals or landlords.
9. Civil court under its inherent jurisdiction(power) given under Sec. 94 can a)issue warrant to arrest against the defendant to furnish security,b)Attach property for production of property, c) Grant temporary injunction and commit for civil prison in case of its d) Disobedience e)Appoint receiver f) Pass interlocutory orders as it thinks just and convenient.
10. Appeal is a matter of right where as revision is not of right.
11. Appeal lies to District Court and also to High Court, Where as under Civil law Revision lies only to High Court under Sec. 115. Revision is not maintainable against all interlocutory orders.
12. Revision is also not maintainable where there is a provision for appeal.

13.Revision is on three grounds where the lower court failed to exercise the jurisdiction vested in it, exercised the jurisdiction not vested in it and exercised the jurisdiction with material irregularity or illegally ( Sec. 115)

14. No appeal is provided against a decree passed with the consent of the parties (S.96(3) ) and no appeal where the subject matter is worth Ten Thousands only.
15. Second appeal only when High Court satisfied that it involved substantial questions of law ( Sec. 100 CPC) No Second appeal where the original suit is for recovery of money not exceeding 25,000/- ( Sec. 102)
16. Reference to High Court Sec. 113
17. Review Sec.114 to be filed before the court which passed the decree when no appeal is permitted by CPC or where no appeal is preferred when appeal remedy is there. Grounds: a) discovery of new and important matter or evidence which could not be produced during trial despite of due diligence. b) Mistake or error apparent on the face of the record c) for any other sufficient reason

*If Superior Court (High Court or Supreme Court) gives a judgment on a similar question of law subsequent to the judgment, is not a ground to review.

* Notice to opposite party is a must.

* Strict proof of due diligence is required i.e. party must establish that he had taken all care for finding out the evidence.

18. Under Sec. 135A members of legislative bodies are exempted from arrest under civil process if the house is in session ( MPs, MLA, MLC)
19. Restitution under Sec. 144 before the court which passed the decree. Order amounts to decree and can be executable.   No separate suit is maintainable if the relief could be obtained under Sec. 144.
20. Sec. 151 Inherent powers to Subordinate courts and also to High Court for the ends of justice or to prevent abuse of process of civil court ( 482 CrPC only to High Court)

21.Payment made outside the court, which is not certified by court shall not be recognized by the court executing the decree.

22.Court can refuse execution of decree against the property and person of the judgement debtor at the same time.

23. Execution of decree for specific performance for restitution of conjugal rights, or for an injunction Order XXI, R.32
24. Execution of decree for immovable property Order XXI, R.35
25. Garnishee order Order XXI, R.46A
26. Order XXI, R.55: Removal of attachment a) amount under decree is paid b) Satisfaction of the decree c) decree is setaside. d) when there is no direction even after EP is dismissed (rule 57).

27.Time for payment in full of purchase money by the auction purchaser Order XXI, R.85 within 15 days.

28. Setting aside the orders passed in exparte Order XXI, R.106 CPC
29. If Right to sue survives suit will not abate. Order XXII ( Right to sue survives= right of continuing proceedings)
30. No abatement by reason of death after hearing.Order XXI, R.6 (Abate= stop, put an end)

31.Insolvency will not abate.  If receiver or assignee declines to continue suit will abate.

32.No fresh suit is allowed to be filed if suit is abated.

33.Counsel for a party to inform about the death of the party order XXII, R10A

34.Compromise must be lawful ( not void or voidable agreements)

35.Commissioner can be appointed for examination of witnesses, to make partitions, for local inspection, ascertaining the market value, to ascertain the mesne profits, damages or profits  ( Order 26)

36. Order XXVI, R.18A says Order XXVI also apply to EPs.
37. Suits by minor or unsound persons to be filed by next friend Order XXXII
38. Natural guardian to be the next friend after him any other person in whose care and custody of minor or unsound person to be the next friend.
39. If minor becomes major next friend to be discharged.
40. If suit is filed under Order XXXII, an affidavit of third party under Rule 172 of Civil Rules of Practice to be filed. A statement by the next friend to the effect that he has no adverse interest to the mionor to be mentioned in the plaint.
41. Suit by Indigent Persons Order XXXIII: Permission to file suit without court fee has to be granted by court and solvency has to be established that the party is not in a position to pay the court fee.
42. Court can reject the application to leave sue as indigent person. Even during the pendency if indigent person becomes rich permission earlier granted can be withdrawn and he may be asked to pay court fee.(dispauper)

43.If application is reject no second application is allowed to be filed.

44.Order XXXIV:  Mortgage suits. Plaint proforma seperate,Decree seperate

45. Order 39 R1 grounds for granting injuction. R.2A disobedience.

R.3: Reasons to be recorded for dispensing notice. R3(a) party obtained exparte injunction send all copies of documents and plaint to the other party, failure results in vacation of injunction.

R.3A application has to be disposed off with in thirty days.

1. 4 injunction can be varied or setaside on change of circumstances.
2. Order XL: Appointment of receivers.
3. Order XLI: Appeals from Decrees R.3A: application for condonation of delay

Order XLI R.19 Restoration of appeal which has been dismissed for default.

Order XLI R.23 Appellate court can remand the appeal.

48. Order XLI R. 27 Additional evidence by appeallate court.
49. Order XLIII Appeals from orders ( IA’s)