HINDU MARRIAGE ACT,1955:

Who is Hindu?                                                                                                                                                                                      Ans: This Act applies to Hindus (including converted), Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.

What are the conditions for marriage?

1) Capacity to marry   2) Formalities of marriage.

Capacity to marry: This Capacity constitutes several aspects: i) not already married, ii) Age of marriage, iii) Mental capacity iv) Prohibition on account of relationship by blood or affinity (Sapinda relationship and Degrees of prohibited relationship).

Age of marriage: Bridegroom has completed the age of twenty one years and the bride the age of eighteen years at the time of the marriage; It is void under SMA but not under any other personal laws. If a minor Hindu marries, it shall be neither void nor voidable but valid.

Mental capacity-Soundness of Mind: Under Hindu law, a marriage on account of lack of mental capacity is voidable at the instance of the other party, but under the SMA, it is void. Prohibition on account of relationship by blood or affinity is void.

a)Sapinda Relationship. b) Prohibited relationship.

A Hindu marriage may be solemnized in accordance with the customary rites and ceremonies of either party thereto. Where such rites and ceremonies include the saptapadi, the marriage becomes complete and binding when the seventh step is taken.

What are the legal consequences of violating conditions of marriage?                                                                            Ans: Basing kind of violation of condition of marriage, civil legal consequences are of two kinds:

Void marriage (S.11): a) Bigamy,    b) Prohibited degree of relationship   c) Sapinda relation.

Voidable marriage (S.12):  (a) Not consummated due to impotency of respondent

(b) Unsound mind or suffering from mental disorder to such an extent for unfit for marriage and for procreation of children or recurrent attacks of insanity or epilepsy (S.5 (ii))

(c)  Consent is obtained by force or by fraud as to the nature of the ceremony or as to any material fact or circumstance concerning the respondent. (d) that the respondent was at the time of the marriage pregnant by some person other than the petitioner.

The remedy to petitioner for occurrence of marriage contrary to conditions laid down under S.5, or 11 or 12 is to obtain decree of nullity.

What are rights of parties to marriage?

Ans: 1)Restitution of conjugal rights (S.9)       2) Judicial separation(S.10)

3) Right to divorce( S.13,13B)                    4) Custody of child(S.26)

5) Right of maintenance (24 & 25)            6) Right to seek return of property (S.27).

What are the rights of off-springs born out of voidable or void marriage?

Ans: The children born out of whether valid or void or voidable marriage are legitimate.   However, they can’t acquire rights in the property other than the parents.

What are the grounds for Divorce?

Ans: S.13 list out grounds for Divorce:   a) Adultery          b) renunciation of the world Desertion       c) Cruelty         d) Insanity      e) Leprosy     f) Venereal diseases      g) Conversion                                                                                             h) Presumption of death: unheard for seven years                                                                                                                      i) has not complied with a decree of RCS for one year or more after the passing of decree                                                 j) has not resumed cohabitation for one year or upwards after the passing of a decree for judicial separation. 

A wife has the following additional grounds for divorce:                                                                                            1) that the husband is guilty of Rape, Sodomy and Bestiality.                                                                                                      2) that she has repudiated before attaining 18 years of age her marriage solemnized before she attained 15 years age.  3) That a maintenance order has been passed against the husband and there is no cohabitation thereafter for one year or upwards.

Which court has jurisdiction claims under this Act?

Ans: The Sub-ordinate civil judge.  The appeal lies to district court.  It shall be filed within thirty days. Decree can be enforced as per O.21 CPC

Sapinda relationship:  For any person it extends as far as the third generation(inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned, who is to be counted as the first generation. Similarly, two persons are said to be “sapinda” of each other if one is a lineal ascendant of the other within the limits of sapinda relationship, or if they have a common lineal ascendant who is within the limits of sapinda relationship with reference to each of them;

 Degrees of prohibited relationship: If  two persons are said to be within the “degrees of prohibited relationship”:-

(i) if one is a lineal ascendant of the other; or       (ii) if one was the wife or husband of a lineal ascendant or descendant of the other; or

(iii) if one was the wife of the brother or of the father’s or mother’s brother or of the grandfather’s or grandmother’s brother or the other; or

(iv) if the two are brother and sister, uncle and niece, aunt and nephew, or children of brother and sister or of two brothers or of two sisters.

Explanation.- for the purposes of clauses (f) and (g) relationship includes-

(i) relationship by half or uterine blood as well as by full blood;   (ii) illegitimate blood relationship as well as legitimate;

(iii) relationship by adoption as well as by blood; and all terms of relationship in those clauses shall be construed accordingly.

Rights of Parties to Marriage:

Restitution of Conjugal rights (s.9): If one of the party to the marriage without any reasonable excuse, withdrawn from the conjugal society the other can seek this relief. The court on proof of the same may decree restitution of conjugal rights accordingly. The burden of proving reasonable excuse shall be on the person who has withdrawn from the society.

Judicial separation (s.10): It says either party to the marriage can file a petition praying for a decree for judicial separation on any of the grounds specified in sub-section (1) of Section 13. Once the decree for JS is passed, it shall no longer be obligatory for the petitioner to cohabit with the respondent, but the court, may on the application by petition of either party and by considering the truthfulness in it, rescind the decree of JS.

Right of Divorce: 13-A. The court in a petition four seeking divorce can also grant a decree for judicial separation having regard to circumstances  but in case of the petition is founded on the grounds mentioned in clauses (ii), (vi) and (vii) of sub-section (1) of Section 13.

Divorce by mutual consent: 13-B:

Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together.  If same is found it to be true, court can pass a decree six months after receipt of divorce application.

If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).

Right of Maintenance (S.24 & 25)

Any party pending petition for divorce can grant maintenance to either of the party. Such order shall be made basing on the income of either of the parties.

The court upon the disposal of the divorce petition can order the respondent to pay to the applicant for her or his maintenance and support such gross sum for a term not exceeding the life of the applicant.   The court while passing such order shall take into consideration following facts: a) Income of the parties b) Conduct of the parties c) Other circumstances.

The court can grant such maintenance either on monthly or periodical basis.

This order can be varied or modified or rescinded subsequently basing on changed circumstances.

The above order is applicable only if other party is not re-married or, if the party is not having sexual intercourse with anyone.

Right to have Custody of children(S.26):.- The Court while conducting proceedings under this Act can pass such interim orders for the purpose of custody, maintenance and education of minor children, consistently with their wishes. The same may be made part of the decree. The Court may also from time to time revoke, suspend or vary any such orders and provisions previously made as necessary.

Right to property: As per S.27 the court while conducting proceeding under this Act, the Court may make such provisions in the decree as it deems just and proper with respect to any property presented at or about the time of marriage, which may belong jointly to both the husband and the wife.

Status of child born out of void or voidable marriage: S.16 says children born out of void and voidable marriages are legitimate.

Divorce by mutual consent: 13-B:

Parties to marriage by agreement can seek divorce if they are been living separately for a period of one year or more provided they are not been able to live together.  If same is found it to be true, court can pass a decree six months after receipt of divorce application.

If a marriage is dissolved by a decree of divorce it shall be lawful for either party to the marriage to marry again. Provided no appeal is filed or time for appeal is expired or appeal filed is dismissed (S.15).

HINDU SUCCESSION ACT:

Succession: It talks about passing of property to legal heirs of a Hindu, when he or she dies without making a will. The moment a Hindu dies intestate, his heirs (in order of succession) become entitled to succeed to his property.  The Act overrides all Hindu customs, traditions and usages and specifies the heirs entitled to such property and the order or preference among them.

Application: This Act applies to Hindus (including converted), Jains, Sikhs, Buddhists and to any person who is not a Muslim, Christian, Parsi or a Jew.

 Male Hindu: The property of an intestate Hindu male devolves on the following heirs in the order specified below:

(a) Firstly, upon his Class I heirs.

(b) Secondly, if there is no Class I heir, then upon his Class II heirs.

(c) Thirdly, if there is no Class II heir, then upon his Agnates.

(d) Fourthly, if there is no Agnate, then upon his Cognates

The order of succession is in the order specified above. Thus, Class I heirs take the property in exclusion to all others and so on and so forth. The following 12 heirs are Class I heirs –

Son, daughter, widow, mother, son/daughter of a predeceased son/daughter, widow of a predeceased son, son/daughter/widow of a predeceased son of a predeceased son. The above Class I heirs take the property in priority succession to all other heirs. Amongst themselves the distribution is as follows:

(i) The intestate’s children, mother and widow each take one equal share.

(ii) The heirs in the branch of each predeceased child take one share between them.

Class II heirs: The following heirs are Class II heirs –

I. Father             II. Son’s daughter’s children and Siblings          III. Daughter’s grandchildren          IV. Children of Siblings      V. Father’s parents,      VI. Father’s widow (step-mother), Brother’s widow,       VII. Father’s siblings, VIII. Mother’s parents       IX. Mother’s siblings

 Among the heirs specified in Class II, those in the first entry take the property simultaneously and in exclusion to those in the subsequent entries and so on and so forth.

Female Hindu:

Devolves on the following heirs in the order specified below :

(a) Firstly, upon her sons and daughters (including the children of any pre-deceased children) and husband; 

(b) Secondly, upon the heirs of her husband;

 (c) Thirdly, upon her parents

(d) Fourthly, upon the heirs of her father.

(e) Fifthly, upon the heirs of her mother.

The order of succession is in the order specified above. Thus, the heirs in the first entry take the property simultaneously and in exclusion to all others and so on and so forth. Thus, the children and husband of a female Hindu take the property in preference to all other heirs specified.  The order of devolution as regards her husband’s heirs would be as if it was her husband’s property and he had died intestate.  The same principle would apply as regards devolution on her father’s heirs. S.15 (2) creates an exception. It says if a Hindu female dying intestate and without any issue or any children or any predeceased children, any property inherited by her from her parents shall devolve upon the heirs of her father. Such property shall not devolve upon the other heirs specified u/s. 15(1) but not devolve upon her husband or his heirs.

Miscellaneous:

Disqualified Legal Heirs:

1. Any heir who is related to an intestate as the widow of a pre-deceased son, the widow of a pre-deceased son of a pre-deceased son or the widow of a brother shall not be entitled to succeed to the property of the intestate as such widow, if on the date the succession opens, she has re-married(S.24).
2. Person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder.
3. Converts descendants.
4. If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate (27).
5. Disease, defect, etc., not to disqualify.6. Escheat

Agnates and Cognates: Two people are called Agnates of each other if they are related (by blood or by adoption) wholly through males. Agnates could be males or females. Thus, a father‘s brother‘s daughter is an Agnate but a father‘s sister‘s son is not an Agnate because the relation is not entirely through males.

Cognates On the other hand, two people are called Cognates of each other if they are related (by blood or by adoption) but not wholly through males. Cognates could be males or females. A mother‘s brother‘s daughter or a father‘s sister‘s son is a Cognate because the relationship is not wholly through males. The relationship of Agnates and Cognates does not extend to those relationships which arise because of marriage.  Among two or more Agnates/ Cognates, the order of succession is that the heir who has fewer or no degrees of ascent is preferred. If the degrees are same then those who have fewer or no degrees of descent are preferred.

 Full blood preferred to half blood, if the nature of the relationship is the same in every other respect.If two or more heirs succeed together to the property of an intestate, they shall take the property:

(a) save as otherwise expressly provided in this Act, per capita and not per stirpes and

(b) as tenants-in-common and not as joint tenants.

Right of child in womb. A child who was in the womb at the time of the death of an intestate and who is subsequently born alive shall have the same right to inherit to the intestate as if he or she had been born before the death of the intestate, and the inheritance shall be deemed to vest in such a case with effect from the date of the death of the intestate.

Presumption in cases of simultaneous deaths: If two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder.

 Preferential right to acquire property in certain cases:

(1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred.

(2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to it in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application.

(3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred.

REGISTRATION ACT:

PURPOSE: Registration is about keeping a private document in public records for the purpose of information to general public by collecting fee w.r.t legal rights and obligations arising out of a particular property. Thus, its objective is conservation of evidence, assurance of title, publicity of documents and prevention of fraud. SRO maintains 5 books. They are:

B–I: Registrar of non- testamentary documents relating to immovable property

B–II: Record of reasons for refusing to register  

B–III: Register of wills and authorities to adopt

B–IV: Miscellaneous register    

B–V: Deposit of wills

Authorities under the Act:

The state government shall appoint an officer to be Inspector general of registration in the state (S.3). For the purpose of this Act, the state government shall form districts and sub-districts. The state government may appoint one registrar to the district and the sub-registrar to sub-districts. This is the hierarchy under the Act: IG—DR—-SRO.  Generally, it is the sub-registrar who registers the document. S.31 says generally, it is the sub-registrar office is the place where documents are registered or documents are deposited. However, on special cause being shown registrar can attend at residence also. Documents relating to immovable property shall be presented for registration in the office of SRO within whose sub-district the whole or portion of the property to which such document relate is situate.  Document must be presented within four months from the date of execution except will. The four months delay can be condoned.

S.32 says following Persons are competent to present documents for registration:

1) Person executing it or claiming under it.

2) Representative or assignee of such person.

3) by the agent of such person or duly authorized power of attorney holder.

 
The Sub-registrar can verify about title, possession or encumbrances in respect of property sought to be registered or consider regsitrablity of the document w.r.t the provisions under the registration act or any law at the time of registration and refuse the same. If he decides that registration has to be refused, he has to pass an order for refusal, record the same in Book No.2 and make an endorsement on the document in the words ’registration refused’. In such case, he shall, without unnecessary delay furnish the executants or any person claiming under him, on his application a copy of the reason so recorded.

Instruments required to be Registration S.17 of the Act lists document required by law to be registered

1) Sale or exchange of immovable property of the value of Rs.100/- or upwards.

2) Simple Mortgage 

3) Instruments of gift of immovable property.

4) Other mortgages (except mortgage by deposit of title deeds) when the principal money secured is Rs.100/- or upwards. 5) Lease.

5)Instruments transferring or assigning any decree or order or award of a court of any award when such decree or award purports or operate to create, declare, assign, limit or extinguish.

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Consequences and Remedies for  non-registration: According to S.49 of the Act, an unregistered document required to be registered under law can’t be received in evidence except in case of a contract in a suit for specific performance or as evidence of any collateral transaction not required to be effected by registered instrument. S.5A of ROR Act.

Thus under the proviso to Sec. 49 of the Registration Act, an unregistered document, though inadmissible to prove the main or principal transaction, can be received as evidence of any collateral transaction or matter or purpose, not required to be effected by a registered document.  Thus there is no remedy for non-registration of instrument required by law to be registered except registration itself.

Where is the place of registration of documents in case of immovable property?

Ans: S.28 says every documents relating to immovable property shall be presented for registration in the office of SRO within whose sub-district the whole or portion of the property to which such document relate is situate. In case of court decree or order also the above rules applies.

Where is the place of registration of documents in case of movable property?

Ans: Document not coming u/a.s28 can be registered, where the document was executed or in the office of any SRO at which all persons executed and claim under the documents desires the same to be registered.

Is there any requirement of time period to get document registered after its execution?

Ans: Yes, S.23 says a document must be presented within four months from the date of execution except will. The four months delay can be condoned u/S.25.   S.24 says where are there several persons executing a document at different times, such document may be presented for registration and re-registration within four months from the date of each execution. U/s25 registrar has power to condone delay for four months provided by imposing fine not exceeding ten times can be levied before accepting for registration.   If the document is presented after eight months of its execution, the registrar has no jurisdiction to condone the delay, under any circumstances.   A will be presented or deposited at any time.

Is there any obligation on part of the registering authority to seek the opinion of the executants at the time of executing the document? What if executants refuse to execute the document?

Ans: According to S.35, it is the duty of SRO to get satisfied that person who is executing the document, is the one and same person or the person he is claiming to represent. For this purpose, he can examine any person. If any person appears and by whom document purports to be executed, denies its execution, it shall not be registered.  Further, if the executant is lunatic, minor, idiot or it has said that documents purports to be executed is dead or denies execution, document shall not be registered. If he is a registrar followed procedure under part-12 of the Act.

What is the procedure available in case executants denies the execution of document?

Ans: Yes, According to S.74 when denial is made in respect of a document, registrar shall inquire:-Whether the document has been executed b) whether the requirements of the law for the time being in force have been complied. Order of refusal must be placed in BooK no.2.  S.78 talks about remedy against refusal to register:- In case of registration is refused, the person aggrieved may file appeal before registrar, in the event of appellate authority refusing appeal, the person aggrieved may file suit u/S77 within thirty days.

Is there any appeal from the order of refusal to register by SRO on the ground of lack or deficiency of title.

Ans: yes, as per s.73 there is an appeal to District Registrar. Appeal must be preferred within thirty days. Such application must be in writing accompanied by SRO’s refusal order. For this purpose DR can conduct an inquiry. If District registrar allows appeal registration must be done within thirty days takes effect from the date, when it was presented.  In the event District Registrar dismissing the appeal as per S.78 the person aggrieved may file civil suit u/S77 within thirty days.

Is there any appeal from the order of refusal to register by SRO on the ground that executant denies executing document? 

Ans: S.73: If refusal is on the ground other than denial of execution, any person claiming under such document, may, within thirty days affect making of the order of refusal, apply to the registrar to whom such SRO is sub-ordinate in order to establish his right to have the document registered. 2) Such applications hall be in writing and shall be accompanied.  S.74: When denial is made in respect of a document, registrar shall inquire:-Whether the document has been executed b) whether the requirements of the law for the time being in force have been complied. Order of refusal must be placed in BooK no.2.

Whether SRO has power to summon the persons?

A: As per S.36 If any person presenting any document for registration desires the appearance of any person, the registering officer in his discretion, call upon such officer by issuing summons to appear before him.  S.37 on receipt of process, summons will be issued. S.39 says CPC would apply so far as law as to summons, commissions and witness.

STAMP ACT, 1899:

 Q: What is Stamp duty?

Ans: Stamp duty is collected with a view to recognize the transaction by the state and protect the right under it. It’s a device to collect money. They are divided into impressed and adhesive. They are already explained in the introduction part. Originally, only stamps are affixed, now in case of value more than Rs.100/- money is paid. Thus stamp act lost its nominal significance. Section which creates liability to pay duty.

S.3 is the charging section. It says every instrument mentioned in the schedule of the Act shall be chargeable with the duty of the amount indicated therein.

S.4: If several instruments are employed to complete one transaction, only one of them is chargeable with duty and for remaining Rs.1/- only the fee.

Cancellation: Every stamp must be cancelled by writing over it. Cancel is by writing or across the stamp his name or initials. The object is to prevent further use. Authorities under the Act.

 As per of S.33 of Stamp Act every person having by law or consent of parties authority to receive evidence or in charge of a public office except police officer, before whom any instrument, chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall if it appears that such instruments is not duly stamped, impound the same.

Impounding: It is used in the sense of ‘seziure’ of the document. A document is said to be impounded when it is ordered by a court or public officer to keep in the custody of office.

 Any person can seek the opinion of the collector(District Registrar) as to the quantum of duty be paid in respect of any instrument even on the basis of a mere draft and even before its execution. Then collector shall determine the duty. He shall certify it and endorse over the documents. Certificate is issued by collector that an instrument is duly stamped is conclusive (S.40(2))and civil court cannot go behind the certificate and decide its validity. There is no time limit to seek opinion. The time limit one month prescribed under the proviso to S.32 is only for the purpose of endorsement there under and for the purpose of adjudication under this section.

Chief Controlling revenue authority is the superior authority over Collector.

Consequences and Remedies for NON-STAMPING

Consequences are two-fold:

I) As per S.35 such instrument shall not be: a) Received in evidence       b) Acted upon           c) Registered        d) Authenticated   hall not be used for any purpose.

However, if it is an unstamped receipt, which is required to be stamped, is produced, the same cannot be received in evidence unless the penalty of three rupees is paid by the person tendering it. But the same principle is not applicable to any instrument tendered to receive in evidence in any criminal Court other than the proceedings under Chapter IX or X(D) of the Code of Criminal Procedure

II) Penal consequences: Taking proceeding or payment of penalty shall not bar to prosecute for offence under this law. However, sanction of collector is necessary and collector should opine it was done with an intention to evade payment.

NEGOTIABLE INSTRUMENT, 1881:

CROSSING OF CHEQUES:

Status of Lost or unlawfully obtained Negotiable Instrument:

Persons competent to make, draw, accept, delivery and negotiable Instrument:

Every person who is competent to contract may become a party to a NI and bind himself by making, drawing, acceptance, delivery and negotiation of a NI.  If a party is incompetent to contract, he doesn’t incur any liability as a party to NI, doesn’t in any way diminish the liability of the other competent parties.

Minor: A minor may draw, indorse, deliver, and negotiate a NI so as to bind all parties except himself. Thus, an instrument doesn’t become void merely by reason that a minor is a party to it; it remains binding upon all other parties. But a minor’s rights under an instrument are not affected. If a minor is a payee or indorsee or holder, the payment can be enforced by him or on his behalf.The same is the case with persons of unsound mind. However, such a person may bind himself to NI executed by him during a lucid interval.

Corporations – A corporation being an artificial creation of law, it possesses only those rights which are conferred upon it by the charter of incorporation or the Memorandum of Association. If it exceeds its owners and executes a bill or note, the instrument being ultravires, is void and incapable of ratification even by the unanimous consent of all its members. Such an instrument cannot be enforced even by a bona fide holder in due course.

Agents: An agent can bind his principal by acting on his behalf only in manner in which he is duly authorised to become a party to a NI. A general authority to transact business and to receive and discharge debts doesn’t confer upon an agent the power if accepting or indorsing bills of exchange so as to bind his principal. The agent has to make it clear that he is acting in representative capacity. The form of signature must show that he intends to act as agent or that he does not incur personal liability otherwise he is personally liable.

Legal Representative:  A legal representative of a deceased person is entitled to all the instruments. He can sue on them for the recovery of the amount. If the LR signs his name to an instrument, he is personally liable thereon unless he expressly limits his liability to the extent of the assets of the deceased received by him as such.

Different Kinds of Parties to a Negotiable Instrument:

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

Drawee: The person on whom a bill or cheque is drawn and who is thereby directed to pay is called the drawee. In case of a cheque, the drawee is always a banker.

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 named in the note, BOE or cheque to whom or to whose order the money is by the instrument is directed to be paid is called the payee. In a BOE or a cheque, the drawer himself may be the payee.

Indorser: The person who indorses the NI in facour of another is called the indorser.

Indorsee: the person to whom a NI is indorsed iscalled the Indorsee.

Holder: The holder of  a NI is a person, entitled in his own name to the possession thereof and to receive or recover the amount due thereon from the parties thereto. Where the NI is lost or destroyed, its holder is the person who person so entitled at the time of loss or destruction. Therefore, a person who has obtained possession of an instrument by theft, or under a forged indorsemnt, is not a holder, as he is not entitled to recover the amount of the instrument. However, the LR or the person entitled by operation of law, who can give a valid discharge to the maker or acceptor of the instrument, becomes a holder and can sue on the instrument.

Holder in due course: A holder in due course is a person who for consideration became the possessor of a Pron note, BOE or Cheque 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 whim he derived the title.

Thus holder of a NI becomes a holder in due course if – i) he receives the instrument for consideration ii) he receives it before its date of maturity; and iii) he takes the instrument in good faith and without notice of any defect either in the instrument or in the title of the endorser.

    NEGOTIATION  :

INDORSEMENT:

Steps to Constitute offence under Section 138 Negotiable Instrument Act, 1881:

1.  The cheque is drawn on a bank for the discharge of any legally enforceable debt or other liability.
2. The cheque should 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 insufficient funds
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 has failed to pay within 15 days from the date of the receipt of notice.

The complaint should have been failed within one month from the date of expiry for the payment of amount before a Metropolitan Magistrate or a Judicial Magistrate not below the rank of a 1^st class Judicial Magistrate.

Miscellaneous:

MATERIAL ALTERNATIONS:   According to S.87:  It is not any unsubstantial alteration that becomes material alteration but only such alterations as would adversely affect the interests of the other side can be called material alterations. Filling up the interest column initially left blank in the printed promissory note form was held to be material alteration rendering it void.

ORIGIN OF STATE AND LAW:

Men desire absolute and unlimited freedom. In fact it is one of the basic instincts of human being to acquire control over men and material. However, the similar and equally powerful instinct on part of his fellow human beings is a great hindrance to enjoy freedom absolutely and without any limitations.  Furthermore, the dangers that nature offer coupled with compelling necessity of organized life by man to have minimum secured life made it imperative for him to live with his fellow human beings and establish society.

Men in order to ensure social cohesion amongst members of society on proper lines after due consideration of human instincts like sex, love, possession tied up people with certain bonds and links in the name of tribe, family, lineage, kinship etc.,. Further to ensure perfect and effective operation of these links and bonds, he attached certain values ideas and beliefs either in the name of religion or customs. In ancient times when contact with members outside the community is minimum these values and community customs used to work out well and ensured peaceful co-existence. However, the rapid advancement made in the field of science and technology greatly weakened social solidarity of societies as such custom and community values role in safeguarding rights of weak became out-dated. However, it doesn’t weakened interdependence of one person over other and rather it enhanced in geometric proportion, though in a different form and scale. The net result is organization of people under a roof called nation states from the primitive tribe. The modern states tied up relationship between state and people and inter-se in the name of law replacing values and custom. Therefore, there necessitated an organized legal system to protect the rights of man for due discharge of state’s duties. Perhaps, for this reason only Sir John Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice”.

The above referred idea about origin of society or state is called as theory of Social contract. The Prominent political thinkers who advanced this theory are: Thomas Hobbes, Rousseau, John Locke, and John Rawls. The theme of their opinion is that individuals are self-interested. However, to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony they created society. Thus, by sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. It is also widely accepted by many Nations.  The Magna Carta of British which guarantees certain rights to citizens and American Declaration of rights of man, 1789 stand as true testimonies for acceptante of this theory about origin of society and state.  In foregoing chapters we study certain core general principles of law on which legal system is constructed so as to translate the promise made by state to its citizens and persons.

OPERATIVE TOOLS OF LAW:

Rights and Duties:    Bentham who is the forerunner of Analytical School of thought states that the relationship between State and its subjects and inter-se is governed by rules of rights and duties. Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them.

The synonyms of right are: Liberty, Power, Privilege, and Immunity.

The synonyms of duty are: Liability, Disability, no right.

Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right without there being corresponding obligation one another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another.   Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa. To put straight, law is either rights or obligation or both. Infact all modern legal systems are constructed on the edifice of this principle only.

Now the question is what is the meaning of term right?  It means something that is due to a person or governmental body by law, tradition, or nature.

According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”

According to Holland: “A right means a capacity residing in one man of controlling with the assent and assistance of the state the acts of the other”

According to Ihering such of those interests that have gained legal protection can be regarded as legal rights.

In strict sense – legal rights are correlatives of legal duties – interests which law protects by imposing duties on others.

In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law.  It can also be said that to call something as right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.

In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This concept is explained through two following legal maxims:  Injuria Sine Damno and Damnum sine Injuria.

Injuria Sine Damno: Plaintiff can sustain a legal action for the infringement of his legal right even though he didn’t suffer any loss or damage. Ashby v. White (1702) 2LD Raym 938. Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intended to vote, was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.

Damnum sine Injuria: Mere sustenance of loss or damage by plaintiff doesn’t give rise to cause of action if there is no infringement of legal right. The important case law in this context is:

Gloucestor Grammar School Case: In this case, the defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant.  Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.

It is evident from above discussion one can seek the aid of court only if there is an invasion or threat to invasion of right guaranteed by law.  Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In fact under law we basically study about legal rights under substantive law.  These rights can also be classified into following heads:-

1) Fundamental rights       2) Public rights

3) Personal rights          4) Customary rights       5) Contractual rights

Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation.  The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to action of hurt, victim can’t demand removal of eye of the accused unless it is recognized by law.The following are the major remedial measures provided under various laws.

Constitution provides following kinds of remedial measures for protection or enforcement of violated fundamental rights. They are:

a) Habeas Corpus       b) Quo Warranto       c) Mandamus      d) Certiorari       (e) Prohibition.

Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights.:-

(a) Specific performance       (b) Injunction        (c) Declaration      (d) Recovery of possession                                       (e) Cancellation            (f) Recession.

The other reliefs available under Civil law are:

(a) Damages           (b) Maintenance              (c) Mesne profits,

(d) Partition              (e) Grant of succession certificate.

Indian Penal code and other penal laws provide followings kinds of remedial measures for violations duties prescribed under them. It is also known as punishment.

a) Death             b) Imprisonment for life               c) Imprisonment, which is of two descriptions, namely:—

(1) Rigorous, that is, with hard labour.        (2) Simple;

d) Forfeiture of property.                e) Fine. Court can also award compensation.

Redressal of right:

The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed.  As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important.  In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are:

(a) Constitution of India and Writ rules

(b) Civil Procedure Code and Civil rules of Practice,

(c) Criminal Procedure Code and Criminal rules of Practice

(d) Limitation Act

(e) Suit Valuation and Court Fee Law

(f) Stamp and Registration Law

(g) Indian Evidence Act

(h) Legal Services Authority

(i) Arbitration and Conciliation Act 1996

(k) Consumer Protection Act.

In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently including especially in adjudicating a claim which has large scale implications on the lives of citizens.    Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these fundamental principles on which any civilized adjudicatory forum operate. The principles are:

1) Principle of Locus standi,

2) Resjudicata, Admissions,  Estoppel,

3) Jurisdiction,

4) Law of Limitation,

5) Stamp Act and Registration Act,

6) Suit Valuation and Court Fee Law,

7) Principles of Pleadings,

8) Summons,

9) Fixing up disputed question,

10) Recording of evidence,

11) Arguments

12) Adjudicating claim or judgment,

13) Appeal, Enforcement of judgment.

The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:

1. WRIT court   
2.   Civil Court
3. Criminal Court   
4.  Legal Service Authority
5. Mediation and Arbitration forum
6.  Consumer Tribunal
7. Endowments Tribunal                 
8.  Family court
9. Administrative Tribunal 10. Arbitration

What is the exam Pattern?

Ans: There will be ten questions carrying eight marks each.  Though he says ten questions, but in reality you are supposed to write thirty questions. Ours is a three hours exam and he tests eighteen subjects.

How many words shall be written?

Ans: In three hours exam atleast one should write three thousand words.  It is difficult for many to write three thousand words. There is no fixed word limit in the civil judge exam, the emphasis is on quality. The ideal word limit is 1800 to 2000. So, one should write sixteen words per minute if you write 3000 W/3H and you have to write ten words per minute if you write 1800 W/3H.

Whether impression carries any weight?

Ans: Yes, good handwriting and legibility fetch more marks. After all, man carried away by impressions.   People are mad off beauty and attractions. Exploit it, to fullest extent.

Whether we should by heart answers?

Ans: Yes, but when you write in the exam it should indicate that our answer full of right information and it is brief and precise and it is a comprehensive one. Thus the way we write answer shall indicate your practical approach rather than academic approach.

Whether we shall write sections and case laws?

Ans: Yes, it is always important to write correct sections. Writing case law is not necessary.

Whether we should read law journals?  

Ans: Yes, it is always ideal to read previous two years law journals.  This helps us to know latest trend and approach of judges and it also enhances our richness in understanding the subject.

Whether Guess work works out?

Ans: There is hardly any necessity of guess work, read all previous questions.

What is the advantage of relying upon previous questions?

Ans: Nearly 80% questions are from previous exams.

What is the mode of Preparation?

Ans: As 80% questions are repetitive, intensive study of all previous question is very important.  One should repeatedly write all previous question and answers again and again.   This will help you have you to acquire time management and stress management and come out from the exam hall with more ease and not struggle your mind for life time and think about next notification.

When 80% are previous question are from old question papers, can we left reaming 20%?  How to study the remaining 20%? 

Ans: Aspirant must be very through with previous questions and readiness to attend any question asked in the exam is also very important. Because, if you survey previous years question papers, they ask one trick or off-beat question for more marks that would alter our fate, despite writing remaining all question correctly and properly. So having grand idea and ability to attend all questions is also equally important.

What is meant by legal Jargon?

Ans: They are certain legal words, which would convey exact meaning and helpful in conveying the idea in a brief and precise manner. We shall use them in presenting our answer.

Why should we write small sentences? How to write small sentences? 

Ans: It always ideal to express only one idea in each sentence, long, complicated sentences often mean that you aren’t sure about what you want to say. Shorter sentences are also better for conveying complex information; they break the information up into smaller, easier-to-process units. Complexity is the greatest enemy of clear communication.  Sentences loaded with dependent clauses and exceptions confuse the audience by losing the main point in a forest of words. Resist the temptation to put everything in one sentence; break up your idea into its parts and make each one the subject of its own sentence.

What are Connectors? What is their use?

Ans: A connector is a word that is used to join words and sentences. They play key role in connecting the paragraph as well.  You should many what are connectors and how to use them.

How much time is adequate to prepare for Mains Exam?

Ans: Six months time is required.

When will be the exam?

Ans: God knows.. Don’t ask us..

ORIGIN OF STATE AND LAW:

Men desire absolute and unlimited freedom. In fact it is one of the basic instincts of human being to acquire control over men and material. However, the similar and equally powerful instinct on part of his fellow human beings is a great hindrance to enjoy freedom absolutely and without any limitations.  Furthermore, the dangers that nature offer coupled with compelling necessity of organized life by man to have minimum secured life made it imperative for him to live with his fellow human beings and establish society.

 Men in order to ensure social cohesion amongst members of society on proper lines after due consideration of human instincts like sex, love, possession tied up people with certain bonds and links in the name of tribe, family, lineage, kinship etc.,. Further to ensure perfect and effective operation of these links and bonds, he attached certain values ideas and beliefs either in the name of religion or customs. In ancient times when contact with members outside the community is minimum these values and community customs used to work out well and ensured peaceful co-existence. However, the rapid advancement made in the field of science and technology greatly weakened social solidarity of societies as such custom and community values role in safeguarding rights of weak became out-dated. However, it doesn’t weakened interdependence of one person over other and rather it enhanced in geometric proportion, though in a different form and scale. The net result is organization of people under a roof called nation states from the primitive tribe. The modern states tied up relationship between state and people and inter-se in the name of law replacing values and custom. Therefore, there necessitated an organized legal system to protect the rights of man for due discharge of state’s duties. Perhaps, for this reason only Sir John Salmond defines law as “the body of principles recognised and applied by the state in the administration of justice”.

The above referred idea about origin of society or state is called as theory of Social contract. The Prominent political thinkers who advanced this theory are: Thomas Hobbes, Rousseau, John Locke, and John Rawls. The theme of their opinion is that individuals are self-interested. However, to protect themselves from each other and to create rules of the game that ensure the ability to live together in peace and harmony they created society. Thus, by sacrificing some of their liberty, they obtain greater liberty than they could have ever known in the state of nature. It is also widely accepted by many Nations.  The Magna Carta of British which guarantees certain rights to citizens and American Declaration of rights of man, 1789 stand as true testimonies for acceptante of this theory about origin of society and state.  In foregoing chapters we study certain core general principles of law on which legal system is constructed so as to translate the promise made by state to its citizens and persons.

OPERATIVE TOOLS OF LAW:

Rights and Duties:    Bentham who is the forerunner of Analytical School of thought states that the relationship between State and its subjects and inter-se is governed by rules of rights and duties. Right means advantages, benefits a person can enjoy. Obligations on the contrary are duties or charges imposed on a person, who is under the obligation to full-fill them.

The synonyms of right are: Liberty, Power, Privilege, and Immunity.

The synonyms of duty are: Liability, Disability, no right.

Rights and obligations though distinct and opposite, they are no manner different as one cannot exist without other. They are simultaneously same in origin. There cannot be a right without there being corresponding obligation one another. However, it is expressed as right at one place and duty at another place basing on the context. To illustrate, a person in settled peaceful possession of property has every right to continued to be in possession of the property without the interference of another and there is an obligation on the whole world to respect the same. If we read the same from penal law perspective, it can be said that no one shall commit trespass into possession of property in the hands of another.   Thus penal law converts obligation on part of individual into offences. Penal law creates an offence either by way of positive command or by a prohibition. Thus civil law is in fact only another aspect of penal law and to establish right means prohibition on another and vice-versa. To put straight, law is either rights or obligation or both. Infact all modern legal systems are constructed on the edifice of this principle only.

Now the question is what is the meaning of term right?  It means something that is due to a person or governmental body by law, tradition, or nature.

According to Salmond: “A legal right is an interest recognised and protected by a rule of legal Justice – an interest the violation of which would be a legal wrong done to whom whose interest it is and respect for which is a legal duty”

According to Holland: “A right means a capacity residing in one man of controlling with the assent and assistance of the state the acts of the other”

According to Ihering such of those interests that have gained legal protection can be regarded as legal rights.

In strict sense – legal rights are correlatives of legal duties – interests which law protects by imposing duties on others.

In essence right refers to something which others are due to a person and it is a claim recognized by state and enforced through process of law.  It can also be said that to call something as right there should be a remedy. Otherwise, it is not a right. Ubi jus, ibi remedium – The maxim was first recorded in the laws of England some 700 years ago by King Edward I.

In this connection it must also be mentioned that violation of right is the only pre-condition to seek for redressal of court but not quantum of damage sustained. This concept is explained through two following legal maxims:  Injuria Sine Damno and Damnum sine Injuria.

Injuria Sine Damno: Plaintiff can sustain a legal action for the infringement of his legal right even though he didn’t suffer any loss or damage. Ashby v. White (1702) 2LD Raym 938. Plaintiff is a legally qualified voter. The defendant, returning officer, maliciously prevented the plaintiff to exercise his franchise. The plaintiff sued the defendant even though the candidate, to whom he intended to vote, was declared elected. Holt C.J held the defendant liable on the ground that the plaintiff’s legal right was infringed.

Damnum sine Injuria: Mere sustenance of loss or damage by plaintiff doesn’t give rise to cause of action if there is no infringement of legal right. The important case law in this context is:

Gloucestor Grammar School Case: In this case, the defendant started a school and collected reduced fee from students. As a result, the students in plaintiff’s school transferred to defendant’s school. Consequently, the plaintiff suffered loss and sued the defendant.  Hankford J. held that plaintiff’s suit is not actionable on the ground that his legal right is not infringed by the defendant.

It is evident from above discussion one can seek the aid of court only if there is an invasion or threat to invasion of right guaranteed by law.  Therefore a robust understanding of some of the most basic and relevant rights is very much necessary. In fact under law we basically study about legal rights under substantive law.  These rights can also be classified into following heads:-

1) Fundamental rights      2) Public rights

3) Personal rights          4) Customary rights       5) Contractual rights

Remedies: Any person who’s right is violated or who has an apprehension that his right may be violated can approach the court to protect his right or to prevent its violation or for remedy provided under law for its violation.  The Law basing on the kind and nature of violation of legal right sets-out certain remedial measures. It must be mentioned that in democracy wedded with rule of law aggrieved or victim upon violation of his rights can’t demand for enforcement of a remedy which is not recognized by law. To put straight one cannot demand a remedy from court which he opines correct. Ex: If eye is lost due to action of hurt, victim can’t demand removal of eye of the accused unless it is recognized by law.The following are the major remedial measures provided under various laws.

Constitution provides following kinds of remedial measures for protection or enforcement of violated fundamental rights. They are:

a) Habeas Corpus             b) Quo Warranto                c) Mandamus           d) Certiorari               (e) Prohibition.

Specific relief Act,1963 provides following remedial measures for protection or enforcement of violated of Civil rights:-

(a) Specific performance       (b) Injunction          (c) Declaration            (d) Recovery of possession                                 (e) Cancellation            (f) Recession.

The other reliefs available under Civil law are:

(a) Damages           (b) Maintenance          (c) Mesne profits        (d) Partition         (e) Grant of succession certificate.

Indian Penal code and other penal laws provide followings kinds of remedial measures for violations duties prescribed under them. It is also known as punishment. a) Death, b) Imprisonment for life, c) Imprisonment, which is of two descriptions, namely:— (1) Rigorous, that is, with hard labour; (2) Simple;                                                         d) Forfeiture of property; e) Fine. Court can also award compensation.

Redressal of right:

The Court in order to grant any remedy, it is necessary for it to ascertain the existence of such right which is being claimed.  As such, it is imperative for court to follow uniform and effective procedure for ascertain the existence of such right and enforce the remedy in the event of allowing the claim. Thus apart from right and remedy, the procedure for reporting the grievance and its adjudication, enforcement is also equally important.  In order to look after these affairs basing upon kind, nature of right and remedy sought for certain laws are enacted. These laws are called procedural laws. Some of the most important procedural laws are:

(a) Constitution of India and Writ rules

(b) Civil Procedure Code and Civil rules of Practice,

(c) Criminal Procedure Code and Criminal rules of Practice

(d) Limitation Act

(e) Suit Valuation and Court Fee Law

(f) Stamp and Registration Law

(g) Indian Evidence Act

(h) Legal Services Authority

(i) Arbitration and Conciliation Act 1996

(k) Consumer Protection Act.

In a Democracy wedded with rule of law the concept of fairness must embrace in every action of state both apparently and inherently including especially in adjudicating a claim which has large scale implications on the lives of citizens.    Therefore, based on above public policy considerations and administrative convenience or limitations of adjudicatory forums following principles or rules are scaled out and organized accordingly with the aid of above mentioned laws. In fact these fundamental principles on which any civilized adjudicatory forum operate. The principles are:

1) Principle of Locus standi,

2) Resjudicata, Admissions,  Estoppel,

3) Jurisdiction,

4) Law of Limitation,

5) Stamp Act and Registration Act,

6) Suit Valuation and Court Fee Law,

7) Principles of Pleadings,

8) Summons,

9) Fixing up disputed question,

10) Recording of evidence,

11) Arguments

12) Adjudicating claim or judgment,

13) Appeal, Enforcement of judgment.

The following are the major dispute resolution mechanisms wherein we find the operation of these principles with minor variations here and there:

1. WRIT court    
2. Civil Court
3. Criminal Court  
4. Legal Service Authority
5. Mediation and Arbitration forum
6. Consumer Tribunal
7. Endowments Tribunal                 
8. Family court
9. Administrative Tribunal 10. Arbitration

What is meant by Bonafide Requirement (S.10)?

Ans:  The bonafide requirement of landlord of his premises is the ground for seeking eviction of tenant. The term bonafide means good faith.  That requirment of the landlord should not be a mere desire that means the landlord must require the requirement of his business or it must be an additional requirement for his business.

What is meant by Wilful default (S.10)?

Ans:  “Wilful default” implies intentional violation of obligation to pay rent. Default must be real and not mere technical. It shall be conscious violation of duty or obligation to pay the rents, having knowledge of consequences, which shall follow.

 Write a note about Appeal under Rent Control law?

Ans: S.20: APPEAL:  The person aggrieved by the order of the controller can appeal before Chief judge or Principal subordinate judge as the case may be.  The appellate court upon such appeal may order stay of further proceedings, pending appeal.  The appellate court shall decide the appeal after giving opportunity to party on either side and if necessary making inquiry either personally or through controller shall decide the appeal.  The order of appellate authority is final. The decision of controller is final subject to the order of appellate authority.  Explanation:  The appellate authority may while confirming the order of eviction passed by the controller grant an extension of time to the tenant for putting the landlord in possession of the building.

Commentary: 1.Appeal is a continuation of original proceedings and the appellate authority will exercise all powers of original authority in applying procedural law and granting releif. A plain reading of S.20 would show there are no restrictions on appellate authority to reverse or modify order of rent controller.  The Appellate authority has powers to confirm, reverse or modify the order of the rent controller.   Sree Datta Agencies, Hyderabad v Dinesh Kumar Kucheria 2008 (5) ALD 344 = 2008 (5)ALT 400.

2. Appellate authority has power of remand. This is integral part of S.20.
3. The appellate authority has power to receive additional evidence if there exist circumstances stated under O.41 R.27. It is not a right of the party.
4. Appeal against interlocutory orders of Rent controller is not maintainable. Revision u/A.227 is maintainable.

Appeal against conviction is not maintainable without deposit of arrears of rent as determined by rent controller.

     5. Appeal is maintainable against an interlocutory order if it affects the rights of the parties. Dismissal of interlocutory application by a third party for impleading in the proceedings is appealable as it can’t be said that the order does not affect the rights of the parties. B.Y.Ramulu v Budhan Saheb Mosque Committee, 2002 (3) ALD 377.

     6. Appellant Court being the last court for appreciation on facts should take care to see that the issue with regard to the ground of eviction is considered in a more perspective manner on all aspects and it has to necessarily meet the findings and all the reasons given in the findings of the court below and by giving its own reasons must reverse it by its own findings. Merely giving different independent and its own reasons and dehors the reasons given the by the court below would not be a valid reversal.

Write a note about Revision under Rent Control law?

Ans: S.22 Revision: The High court may, at any time, on the applciaiton of any aggrieved party call for and examine the records relating to any order passed or proceeding taken under this Act by the controller in execution u/S.15 or by the appellate authority on appeal under S.20, for the purpose of satisfying itself as to the legality, regularity or of propreity of such order or proceeding, and may pass such order in reference thereto as it thinks fit.

2)  The costs of and incident to all proceedings, before the high court under S.s(1) shall be in its discretion.

Comment: 1. Power of high court in revision under the Act is wider than the power of revision under CPC.

2. It is settled law that admission in a pleading can’t be allowed to be withdrawn by way of an amendment. The tenant admitting in the counter initially filed by him that he was paying rents but receipts were not given by landlord, could not have subsequently sought for an amendment of the counter raising the plea that there was no landlord-tenant relationship between them.
3. No revision lies against an order refusing amendment in a pending rent control case. It can be challenged by way of main appeal. This is not an interlocutory order.

Interference when justified:

1. If the courts below misdirected themselves and didn’t consider the evidence in the proper perspective by adverting to the provisions contained in S.10 of the Act, the high court is justified in interfering with concurrent findings.
2. The general rule is revision court can’t interfere with finding of fact. Interference of revisional court can’t be totally ousted not only on the question of law but also on finding of fact provided the said findings of fact provided the said finding was not based on evidence or if the finding is contrary to law.
3. Concurrent findings of fact can be interfered with in revision if they suffer from inherent defects and are based on irrelevant material. P.V. Venkata Krishna Rao: 1989 (3) ALT 284.
4. Question of bona fide requirement of landlord, being a mixed question of fact and law, can be gone into in revision by high court. Nallabill Satyanarayna :1999(2) ALD 659.

                                                                                                                                                                                                      What is the fate of proceedings in the event of death by petitioner in rent control case?

Ans: S.24:- Proceedings by or against legal representatives: –

1) Any application made, appeal preferred or proceeding taken under this Act by or against any person, may in the event of his death, be continued by or against his legal representative.

2) Where any application, appeal or other proceeding could have been made, preferred or taken under this Act by or against any person, such application, appeal or other proceeding, may, in the event of his death, be made, preferred or taken by or against his legal representatives.

Comment: Section 24 of the Act empowers the person to initiate proceedings by or against the legal representative in the event of death of the party. It is stated in Clause (2) of Section 24 of the A.P. Buildings (Lease, Rent and Eviction) Control Act, 1960 that any application, appeal or other proceedings could be preferred under this Act, by or against any person, such application, appeal or other proceeding, may, in the event of death of the party, be made, preferred or taken by or against his legal representatives. Rule 19 of A.P. Buildings (Lease, Rent and Eviction) Control Rules, 1961 prescribes period of limitation of thirty days for bringing legal representatives on record. Rule 19(2) mentions that application can be admitted after expiry of the period of limitation if the applicant satisfies the Controller or Appellate Authority that he had sufficient cause for not making the application within the time. Nanik Ram vs Bavarlal (Died) : 2004 (6) ALD 200

Abatement of appeal:  During the pendency of the appeal, the original landlord died and all his sons were not brought on record.  The court said it is not necessary that all must be brought on record. Another point to be noted that either tenant or landlord can continue the suit even after their death by their legal representatives.  On the death of the original tenant during the pendency of the CRP filed u/r.22 of the Act, one of the LRS of the deceased tenant, in whatever capcity he might have been on record, carried the matter unsuccesfflly  upto the apex court. Other LRs of the orignal tenant contended that they were not brought on record as LRs of original tenant and the proceedings became abated and non-est in the eye of law and therefore execution can’t be don agasint them.  It is rejected as one of the tenant effectively represented the rights. K.Megamal @ M.Meghamal :2006(3)ALD810.

What is the Object of this Act?

Ans: The object of this Act is to provide measures for checking unauthorised occupation of Government lands and to protect the government property. This is done by the imposition of penal assessment or by subjecting unauthorised occupants to summary eviction.

What are the properties for which this law is applicable? What is government property?

Ans: Government properties only. The term government property means all public roads, streets, lanes and paths, bridges, ditches, dykes and fences, on or beside the same, the bed of the sea and of harbours and creeks below high water mark, and of rivers, streams, nalas, lakes and tanks and all canals and water courses and all standing and flowing water and all lands situated are the property of the Government including Railway lands and land in Port limits. (Section 2(1)).

All public roads and streets vested in any local authority shall be deemed to be the property of the Government. (Section 2(2))

What are the coercive tools available under the Act against unauthorized occupations?

Ans:  They are: 1) The imposition of assessment and penalty 2) summarily evicting the person in occupation.

What is the mode of recovery?

Ans: It may be recovered as arrears of land revenue under A.P.Revenue Recovery Act, 1864. (Section 9 of the Act)

What is the mode of assessment in respect of unauthorized occupations?

Ans: This is done by the Tahsildar. He levies assessment basing on two considerations. They are: 1) Village or town 2) Assessed or unassessed land.

What is the method of evicting unauthorised occupant?

Ans: He can be summarily evicted. Before taking proceedings under Section 5 or 6, service of Notice is a mandatory and it should contain specification of the land so occupied and calling on him to show cause before certain date why he should not be proceeded against him under Section 5 or 6. If such Notice is not obeyed, the eviction to be carried out after hearing objections if any filed. If he resists or obstructs the Tahsildar, may issue Warrant for the arrest of the said person for such a period not exceeding 30 days in order to prevent the continuance of such obstruction or resistance or may send him with a Warrant in form of schedule for imprisonment in the Civil Jail of the District for the like period. (Section 6 & 7of the Act). Authorities constituted under the Act cannot take eviction proceedings against person in unlawful and illegal encroachments of Government lands without following the procedure laid down under Section 6 & 7 of the Act. (K.R.Zilla Parishad High School Committee, Katur Vs. The State ofA.P., 1976(1) An WR 86)

Write a note about S.7-A of the Act?

Ans: Section 7- A of LE Act was introduced by means of an amendment in 1980. When a group of persons without entitlement and with a common objection of occupying and Government land occupy and do not vacate on demand by the Collector shall order without notice and immediate vacation of the encroachers and for taking possession of the land. Thereupon, the encroachers should be evicted from the land by force, taking such police assistance as may be necessary and take possession of the land. An order U/s 7-A of the Act for eviction so passed by the Collector shall be final and shall not be questioned in any Court. If any dispute arises as to whether any land is the property of the Government, such land shall be presumed to be the property of the Government until the contrary is proved.

Is there any appellate forum against the order of Tahsildar?

Ans: yes, Appeal lies to the RDO against the orders of Tahsildar, to the District Collector against the orders of RDO and to the CCLA against the orders of District Collector otherwise than an Appeal. No Appeal shall be brought after the expiration of 60 days from the date of receipt of the copy of order. The District Collector and the CCLA have got revisional powers. (Sections 10, 11 & 12 of the Act). he Government have power to call for records and pass necessary orders. [Section 12(A)] .

What is the punishment provide for re-enter by unauthorisdely occupied person?

Ans: Any person who unauthorisedly re-enters and occupies land from which he was evicted, shall be punishable with imprisonment upto 6 months or with fine upto Rs.1000/- or with both. (Section 6 (3) of the Act)

Whether civil court has Jurisdiction?

Ans:  This Act provides Conclusiveness of decision as to amount of assessment payable under Section 3 shall not be questioned in any Civil Court. (Section 4 of the Act). Further,   no decision made or order passed under this Act except proceeding effecting the title to the land of a person shall be called in question before Civil Court. (Section 14 of the Act)