€¦ · Web viewLESSON 1:- THE CONSTITUTION OF INDIA. THE UNION AND ITS TERRITORY. 1. Name and...

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LESSON 1:- THE CONSTITUTION OF INDIATHE UNION AND ITS TERRITORY

1. Name and territory of the Union.—(1) India, that is Bharat, shall be a Union of States.(2) The States and the territories thereof shall be as specified in the First Schedule.(3) The territory of India shall comprise—(a) The territories of the States;(b) The Union territories specified in the First Schedule; and(c) Such other territories as may be acquired.2. Admission or establishment of new States.—Parliament may by law admit into the Union, or establish, new States on such terms and conditions as it thinks fit.3. Formation of new States and alteration of areas, boundaries or names of existing States.—Parliament may by law—(a) Form a new State by separation of territory from any State or by uniting two or more States or parts of States or by uniting any territory to a part of any State;(b) Increase the area of any State;(c) Diminish the area of any State;(d) Alter the boundaries of any State;(e) Alter the name of any State:4. Laws made under articles 2 and 3 to provide for the amendment of the First and the Fourth Schedules and supplemental, incidental and consequential matters. —(1) Any law referred to in article 2 or article 3 shall contain such provisions for the amendment of the First Schedule and the Fourth Schedule as may be necessary to give effect to the provisions of The law and may also contain such supplemental, incidental and consequential provisions (including provisions as to representation in Parliament and in the Legislature or Legislatures of the State or States affected by such law) as Parliament may deem necessary.(2) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

CITIZENSHIP

5. Citizenship at the commencement of the Constitution.— At the commencement of this Constitution, every person who has his domicile in the territory of India and—(a) Who was born in the territory of India; or(b) Either of whose parents was born in the territory of India; or(c) Who has been ordinarily resident in the territory of India for not less than five years immediately preceding such commencement, shall be a citizen of India.

6. Rights of citizenship of certain persons who have migrated to India from Pakistan.—Notwithstanding anything in article 5, a person who has migrated to the territory of India from the territory now included in Pakistan shall be deemed to be a citizen of India at the commencement of this Constitution if—(a) He or either of his parents or any of his grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted); and(b) (i) In the case where such person has so migrated before the nineteenth day of July, 1948, he has been ordinarily resident in the territory of India since the date of his migration, or(ii) In the case where such person has so migrated on or after the nineteenth day of July, 1948, he has been registered as a citizen of India by an officer appointed in that behalf by the Government of the Dominion of India on an application made by him there for to such officer before the commencement of this Constitution in the form and manner prescribed by that Government: Provided that no person shall be so registered unless he has been resident in the territory of India for at least six months immediately preceding the date of his application.

7. Rights of citizenship of certain migrants to Pakistan.—Notwithstanding anything in articles 5 and 6, a person who has after the first day of March, 1947, migrated from the territory of India to the territory now included in Pakistan shall not be deemed to be a citizen of India: Provided that nothing in this article shall apply to a person who, after having so migrated to the territory now included in Pakistan, has returned to the territory of India under a permit for resettlement or permanent return issued by or under the authority of any law and every such person shall for The purposes of clause (b) of article 6 be deemed to have migrated to the territory of India after the nineteenth day of July, 1948.

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8. Rights of citizenship of certain persons of Indian origin residing outside India.— Notwithstanding anything in article 5, any person who or either of whose parents or any of whose grandparents was born in India as defined in the Government of India Act, 1935 (as originally enacted), and who is ordinarily residing in any country outside India as so defined shall be deemed to be a citizen of India if he has been registered as a citizen of India by the diplomatic or consular representative of India in the country where he is for the time being residing on an application made by him there for to such diplomatic or consular representative, whether before or after the commencement of this Constitution, in the form and manner prescribed by the Government of the Dominion of India or the Government of India.9. Persons voluntarily acquiring citizenship of a foreign State not to be citizens.— No person shall be a citizen of India by virtue of article 5, or be deemed to be a citizen of India by virtue of article 6 or article 8, if he has voluntarily acquired the citizenship of any foreign State.10. Continuance of the rights of citizenship.—Every person who is or is deemed to be a citizen of India under any of the foregoing provisions of this Part shall, subject to the provisions of any law that may be made by Parliament, continue to be such citizen.11. Parliament to regulate the right of citizenship by law.—Nothing in the foregoing provisions of this Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and termination of citizenship and all other matters relating to citizenship.

FUNDAMENTAL RIGHTS

12. Definition.—In this Part, unless the context otherwise requires, “the State’’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.13. Laws inconsistent with or in derogation of the fundamental rights.—(1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void.(3) In this article, unless the context otherwise requires,—(a) “Law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law;(b) “Laws in force” includes laws passed or made by a Legislature or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas.(4) Nothing in this article shall apply to any amendment of this Constitution made under article 368.Right to Equality

14. Equality before law.—The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.15. Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.—(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, and place of birth or any of them.(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of them, be subject to any disability, liability, restriction or condition with regard to—(a) Access to shops, public restaurants, hotels and places of public entertainment; or (b) The use of wells, tanks, bathing Ghats, roads and places of public resort maintained wholly or partly out of State funds or dedicated to the use of the general public.(3) Nothing in this article shall prevent the State from making any special provision for women and children.(4) Nothing in this article or in clause (2) of article 29 shall prevent the State from making any special provision for the advancement of any socially and educationally backward classes of citizens or for the Scheduled Castes and the Scheduled Tribes.

16. Equality of opportunity in matters of public employment.—(1)There shall be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State.(2) No citizen shall, on grounds only of religion, race, caste, sex, descent, place of birth, residence or any of them, be ineligible for, or discriminated against in respect of, any employment or office under the State.

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(3) Nothing in this article shall prevent Parliament from making any law prescribing, in regard to a class or classes of employment or appointment to an office under the Government of, or any local or other authority within, a State or Union territory, any requirement as to residence within that State or Union territory prior to such employment or appointment.(4) Nothing in this article shall prevent the State from making any provision for the reservation of appointments or posts in favour of any backward class of citizens which, in the opinion of the State, is not adequately represented in the services under the State.(4A) Nothing in this article shall prevent the State from making any provision for reservation in matters of promotion, with consequential seniority, to any class or classes of posts in the services under the State in favour of the Scheduled Castes and the Scheduled Tribes which, in the opinion of the State, are not adequately represented in the services under the State.(4B) Nothing in this article shall prevent the State from considering any unfilled vacancies of a year which are reserved for being filled up in that year in accordance with any provision for reservation made under clause (4) or clause (4A) as a separate class of vacancies to be filled up in any succeeding year or years and such class of vacancies shall not be considered together with the vacancies of the year in which they are being filled up for determining the ceiling of fifty per cent. reservation on total number of vacancies of that year.(5) Nothing in this article shall affect the operation of any law which provides that the incumbent of an office in connection with the affairs of any religious or denominational institution or any member of the governing body thereof shall be a person professing a particular religion or belonging to a particular denomination.

17. Abolition of Untouchability.—“Untouchability’’ is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability’’ shall be an offence punishable in accordance with law.18. Abolition of titles.—(1) No title, not being a military or academic distinction, shall be conferred by the State.(2) No citizen of India shall accept any title from any foreign State.(3) No person who is not a citizen of India shall, while he holds any office of profit or trust under the State, accept without the consent of the President any title from any foreign State.(4) No person holding any office of profit or trust under the State shall, without the consent of the President, accept any present, emolument, or office of any kind from or under any foreign State. Right to Freedom

19. Protection of certain rights regarding freedom of speech, etc.—(1) All citizens shall have the right—(a) To freedom of speech and expression;(b) To assemble peaceably and without arms;(c) To form associations or unions;(d) To move freely throughout the territory of India;(e) To reside and settle in any part of the territory of India; and(g) To practise any profession, or to carry on any occupation, trade or business.(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.(3) Nothing in sub-clause (b) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order, reasonable restrictions on the exercise of the right conferred by the said sub-clause.(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the sovereignty and integrity of India or public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.(5) Nothing in sub-clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the rights conferred by the said sub-clauses either in the interests of the general public or for the protection of the interests of any Scheduled Tribe.(6) Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as it imposes, or prevent the State from making any law imposing, in the interests of the general public, reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in particular,

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nothing in the said sub-clause shall affect the operation of any existing law in so far as it relates to, or prevent the State from making any law relating to,—(i) The professional or technical qualifications necessary for practising any profession or carrying on any occupation, trade or business, or(ii) The carrying on by the State or by a corporation owned or controlled by the State, of any trade, business, industry or service, whether to the exclusion, complete or partial, of citizens or otherwise.

20. Protection in respect of conviction for offences.—(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the Act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.(2) No person shall be prosecuted and punished for the same offence more than once.(3) No person accused of any offence shall be compelled to be a witness against himself.

21. Protection of life and personal liberty.—No person shall be deprived of his life or personal liberty except according to procedure established by law.

22. Protection against arrest and detention in certain cases. —(1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the magistrate and no such person shall 1. On the commencement of s. 3 of the Constitution (Forty-fourth Amendment) Act, 1978, art. 22 shall stand amended as directed in s. 3 of that Act. For the text of s. 3 of that Act, see Appendix III. detained in custody beyond the said period without the authority of a magistrate.(3) Nothing in clauses (1) and (2) shall apply—(a) To any person who for the time being is an enemy alien; or(b) To any person who is arrested or detained under any law providing for preventive detention.(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than three months unless—(a) An Advisory Board consisting of persons who are, or have been, or are qualified to be appointed as, Judges of a High Court has reported before the expiration of the said period of three months that there is in its opinion sufficient cause for such detention: Provided that nothing in this sub-clause shall authorise the detention of any person beyond the maximum period prescribed by any law made by Parliament under sub-clause (b) of clause (7) or(b) Such person is detained in accordance with the provisions of any law made by Parliament under sub-clauses (a) and (b) of clause (7).(5) When any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to disclose facts which such authority considers to be against the public interest to disclose.(7) Parliament may by law prescribe—(a) The circumstances under which, and the class or classes of cases in which, a person may be detained for a period longer than three months under any law providing for preventive detention without obtaining the opinion of an Advisory Board in accordance with the provisions of sub-clause (a) of clause (4);(b) The maximum period for which any person may in any class or classes of cases be detained under any law providing for preventive detention; and(c) The procedure to be followed by an Advisory Board in an inquiry under sub-clause (a) of clause (4).23. Prohibition of traffic in human beings and forced labour.—(1) Traffic in human beings and begar and other similar forms of forced labour are prohibited and any contravention of this provision shall be an offence punishable in accordance with law. (2) Nothing in this article shall prevent the State from imposing compulsory service for public purposes, and in imposing such service the State shall not make any discrimination on grounds only of religion, race, caste or class or any of them.24. Prohibition of employment of children in factories, etc. —No child below the age of fourteen years shall be employed to work in any factory or mine or engaged in any other hazardous employment. Right to Freedom of Religion

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25. Freedom of conscience and free profession, practice and propagation of religion.—(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—(a) Regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;(b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

26. Freedom to manage religious affairs.—Subject to public order, morality and health, every religious denomination or any section thereof shall have the right—(a) To establish and maintain institutions for religious and charitable purposes;(b) To manage its own affairs in matters of religion;(c) To own and acquire movable and immovable property; and(d) To administer such property in accordance with law.

27. Freedom as to payment of taxes for promotion of any particular religion.—No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.—(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto. Cultural and Educational Rights

29. Protection of interests of minorities.—(1) Any section of the citizens residing in the territory of India or any part thereof having a distinct language, script or culture of its own shall have the right to conserve the same.(2) No citizen shall be denied admission into any educational institution maintained by the State or receiving aid out of State funds on grounds only of religion, race, caste, language or any of them.

30. Right of minorities to establish and administer educational institutions. — (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.(1A) In making any law providing for the compulsory acquisition of any property of an educational institution established and administered by a minority, referred to in clause (1), the State shall ensure that the amount fixed by or determined under such law for the acquisition of such property is such as would not restrict or abrogate the right guaranteed under that clause.(2) The State shall not, in granting aid to educational institutions, discriminate against any educational institution on the ground that it is under the management of a minority, whether based on religion or language.

31. Saving of laws providing for acquisition of estates, etc.— (1) Notwithstanding anything contained in article 13, no law providing for—(a) The acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights, or(b) The taking over of the management of any property by the State for a limited period either in the public interest or in order to secure the proper management of the property, or

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(c) The amalgamation of two or more corporations either in the public interest or in order to secure the proper management of any of the corporations, or(d) The extinguishment or modification of any rights of managing agents, secretaries and treasurers, managing directors, directors or managers of corporations, or of any voting rights of shareholders thereof, or.(2) In this article,—(a) the expression ‘‘estate’’ shall, in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenures in force in that area and shall also include—(i) Any jagir, inam or muafi or other similar grant and in the States of Tamil Nadu and Kerala, any janmam right;(ii) Any land held under ryotwari settlement;(iii) Any land held or let for purposes of agriculture or for purposes ancillary thereto, including waste land, forest land, land for pasture or sites of buildings and other structures occupied by cultivators of land, agricultural labourers and village artisans;(b) The expression ‘‘rights’’, in relation to an estate, shall include any rights vesting in a proprietor, sub-proprietor, under-proprietor, tenure-holder, raiyat, under-raiyat or other intermediary and any rights or privileges in respect of land revenue.

31B. Validation of certain Acts and Regulations.—Without prejudice to the generality of the provisions contained in article 31A, none of the Acts and Regulations specified in the Ninth Schedule nor any of the provisions thereof shall be deemed to be void, or ever to have become void, on the ground that such Act, Regulation or provision is inconsistent with, or takes away or abridges any of the rights conferred by, any provisions of this Part, and notwithstanding any judgment, decree or order of any court or Tribunal to the contrary, each of the said Acts and Regulations shall, subject to the power of any competent Legislature to repeal or amend it, continue in force.31C. Saving of laws giving effect to certain directive principles.— Notwithstanding anything contained in article 13, no law giving effect to the policy of the State towards securing1 [All or any of the principles laid down in Part IV] shall be deemed to be void on the ground that it is inconsistent with, or takes away or abridges any of the rights conferred by article 14 or article 19;2 and no law containing a declaration that it is for giving effect to such policy shall be called in question in any court on the ground that it does not give effect to such policy: Provided that where such law is made by the Legislature of a State, the provisions of this article shall not apply thereto unless such law, having been reserved for the consideration of the President, has received his assent.

32. Remedies for enforcement of rights conferred by this Part.—(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.(a). Subs. by the Constitution (Forty-second Amendment) Act, 1976, s. 4, for “the principles specified in Clause (b) or clause (c) of article 39” (w.e.f. 3.1.1977). Section 4 has been declared invalid by the Supreme Court in Minerva Mills Ltd. and others vs. Union of India and others (1980) s. 2, S.C.C. 591.(b). In Kesavananda Bharati vs. the State of Kerala (1973), Supp. S.C.R.1., the Supreme Court held the Provisions in italics to be invalid. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

33. Power of Parliament to modify the rights conferred by this Part in their application to Forces, etc.—Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,—(a) The members of the Armed Forces; or(b) The members of the Forces charged with the maintenance of public order; or(c) Persons employed in any bureau or other organization established by the State for purposes of intelligence or counter intelligence; or(d) Persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them

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34. Restriction on rights conferred by this Part while martial law is in force in any area.—Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

35. Legislation to give effect to the provisions of this Part. — Notwithstanding anything in this Constitution,—(a) Parliament shall have, and the Legislature of a State shall not have, power to make laws—(i) With respect to any of the matters which under clause (3) of article 16, clause (3) of article 32, article 33 and article 34 may be provided for by law made by Parliament; and(ii) For prescribing punishment for those acts which are declared to be offences under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);(b) Any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under article 372, continue in force until altered or repealed or amended by Parliament. Explanation.—In this article, the expression "law in force'' has the same meaning as in article 372.

DIRECTIVE PRINCIPLES OF STATE POLICY

36. Application of the principles contained in this Part:-The provisions contained in this Part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.

37. State to secure a social order for the promotion of welfare of the people:-(1) The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.(2) The State shall, in particular, strive to minimize the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations.

38. Certain principles of policy to be followed by the State.—The State shall, in particular, direct its policy towards securing—(a) That the citizens, men and women equally, have the right to an adequate means of livelihood;(b) That the ownership and control of the material resources of the community are so distributed as best to subserve the common good;(c) That the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;(d) That there is equal pay for equal work for both men and women;(e) That the health and strength of workers, men and women, and the tender age of children are not abused and that citizens are not forced by economic necessity to enter avocations unsuited to their age or strength;(f) That children are given opportunities and facilities to develop in a healthy manner and in conditions of freedom and dignity and that childhood and youth are protected against exploitation and against moral and material abandonment.38A. Equal justice and free legal aid:-The State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and shall, in particular, provide free legal aid, by suitable legislation or schemes or in any other way, to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities.39. Organisation of village panchayats:-The State shall take steps to organise village panchayats and endow them with such powers and authority as may be necessary to enable them to function as units of self government.40. Right to work, to education and to public assistance in certain cases:-The State shall, within the limits of its economic capacity and development, make effective provision for securing the right to work, to education and to public assistance in cases of unemployment, old age, sickness and disablement, and in other cases of undeserved want.

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41. Provision for just and humane conditions of work and maternity relief:-The State shall make provision for securing just and humane conditions of work and for maternity relief.42. Living wage, etc., for workers:-The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to promote cottage industries on an individual or co-operative basis in rural areas.42A. Participation of workers in management of industries:-The State shall take steps, by suitable legislation or in any other way, to secure the participation of workers in the management of undertakings, establishments or other organizations engaged in any industry.43. Uniform civil code for the citizens:-The State shall Endeavour to secure for the citizens a uniform civil code throughout the territory of India.44. Provision for free and compulsory education for children:-The State shall endeavour to provide, within a period of ten years from the commencement of this Constitution, for free and compulsory education for all children until they complete the age of fourteen years.45. Promotion of educational and economic interests of Scheduled Castes, Scheduled Tribes and other weaker sections:-The State shall promote with special care the educational and economic interests of the weaker sections of the people, and, in particular, of the Scheduled Castes and the Scheduled Tribes, and shall protect them from social injustice and all forms of exploitation.46. Duty of the State to raise the level of nutrition and the standard of living and to improve public health:-The State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health.47. Organisation of agriculture and animal husbandry:-The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows and calves and other milch and draught cattle.47A. Protection and improvement of environment and safeguarding of forests and wild life:-The State shall Endeavour to protect and improve the environment and to safeguard the forests and wild life of the country.48. Protection of monuments and places and objects of national importance:-It shall be the obligation of the State to protect every monument or place or object of artistic or historic interest, declared by or under law made by Parliament to be of national importance, from spoliation, disfigurement, destruction, removal, disposal or export, as the case may be.49. Separation of judiciary from executive:-The State shall take steps to separate the judiciary from the executive in the public services of the State.51. Promotion of international peace and security:-The State shall endeavour to—(a) Promote international peace and security;(b) Maintain just and honorable relations between nations;(c) Foster respect for international law and treaty obligations in the dealings of organized peoples with one another; and(d) Encourage settlement of international disputes by arbitration.

FUNDAMENTAL DUTIES51A. Fundamental duties:- It shall be the duty of every citizen of India—(a) To abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;(b) To cherish and follow the noble ideals which inspired our national struggle for freedom;(c) To uphold and protect the sovereignty, unity and integrity of India;(d) To defend the country and render national service when called upon to do so;(e) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;(f) To value and preserve the rich heritage of our composite culture;(g) To protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;(h) To develop the scientific temper, humanism and the spirit of inquiry and reform;(i) To safeguard public property and to abjure violence;(j) To strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement.

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THE UNION—THE EXECUTIVEThe President and Vice-President53. Executive power of the Union:-(1) The executive power of the Union shall be vested in the President and shall be exercised by him either directly or through officers subordinates to him in accordance with this Constitution.(2) Without prejudice to the generality of the foregoing provision, the supreme command of the Defense Forces of the Union shall be vested in the President and the exercise thereof shall be regulated by law.(3) Nothing in this article shall—(a) Be deemed to transfer to the President any functions conferred by any existing law on the Government of any State or other authority; or(b) Prevent Parliament from conferring by law functions on authorities other than the President.

54. Election of President:- The President shall be elected by the members of an electoral college consisting of(a) The elected members of both Houses of Parliament; and(b) The elected members of the Legislative Assemblies of the States. Explanation:-In this article and in article 55, ‘‘State’’ includes the National Capital Territory of Delhi and the Union territory of Pondicherry.

PARLIAMENT55. Constitution of Parliament:-There shall be a Parliament for the Union which shall consist of the President and two Houses to be known respectively as the Council of States and the House of the People.

56. Composition of the Council of States:-(1) The Council of States shall consist of(a) Twelve members to be nominated by the President in accordance with the provisions of clause (3); and(b) Not more than two hundred and thirty-eight representatives of the States and of the Union territories.(2) The allocation of seats in the Council of States to be filled by representatives of theStates and of the Union territories shall be in accordance with the provisions in that behalf contained in the Fourth Schedule.(3) The members to be nominated by the President under sub-clause (a) of clause (1) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:- Literature, science, art and social service.(4) The representatives of each State in the Council of States shall be elected by the elected members of the Legislative Assembly of the State in accordance with the system of proportional representation by means of the single transferable vote.(5) The representatives of the Union territories in the Council of States shall be chosen in such manner as Parliament may by law prescribe.

57. Composition of the House of the People:-(1) Subject to the provisions of article 331, the House of the People shall consist of(a) Not more than five hundred and thirty members chosen by direct election from territorial constituencies in the States, and(b) Not more than twenty members to represent the Union territories, chosen in such manner as Parliament may by law provide.(2) For the purposes of sub-clause (a) of clause (1),(a) There shall be allotted to each State a number of seats in the House of the People in such manner that the ratio between that number and the population of the State is, so far as practicable, the same for all States; and(b) Each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it is, so far as practicable, the same throughout the State: Provided that the provisions of sub-clause (a) of this clause shall not be applicable for the purpose of allotment of seats in the House of the People to any State so long as the population of that State does not exceed six millions(3) In this article, the expression “population” means the population as ascertained at the last preceding census of which the relevant figures have been published: Provided that the reference in this clause to the last preceding census of which the relevant figures have been published shall, until the relevant figures for the first census taken after the year 2026 have been published, be construed, (i) For the purposes of sub-clause (a) of clause (2) and the proviso to that clause, as a reference to the 1971 census; and(ii) For the purposes of sub-clause (b) of clause (2) as a reference to the 2001 census.

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58. Special provisions as to financial Bills:-(1) A Bill or amendment making provision for any of the matters specified in sub-clauses (a) to (f)of clause (1) of article 110 shall not be introduced or moved except on the recommendation of the President and a Bill making such provision shall not be introduced in the Council of States: Provided that no recommendation shall be required under this clause forthe moving of an amendment making provision for the reduction or abolition of any tax.(2) A Bill or amendment shall not be deemed to make provision for any of the matters aforesaid by reason only that it provides for the imposition of fines or other pecuniary penalties, or for the demand or payment of fees for licences or fees for services rendered, or by reason that it provides for the imposition, abolition, remission, alteration or regulation of any tax by any local authority or body for local purposes.(3) A Bill which, if enacted and brought into operation, would involve expenditure from the Consolidated Fund of India shall not be passed by either House of Parliament unless the President has recommended to that House the consideration of the Bill. Procedure Generally

LEGISLATIVE POWERS OF THE PRESIDENT59. Power of President to promulgate Ordinances during recess of Parliament:-(1)If at any time, except when both Houses of Parliament are in session, the President is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of Parliament, but every such Ordinance(a) Shall be laid before both Houses of Parliament and shall cease to operate at the expiration of six weeks from the reassembly of Parliament, or, if before the expiration of that period resolutions disapproving it are passed by both Houses, upon the passing of the second of those resolutions; and(b) May be withdrawn at any time by the President. Explanation:-Where the Houses of Parliament are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.(3) If and so far as an Ordinance under this article makes any provision which Parliament would not under this Constitution be competent to enact, it shall be void

THE UNION JUDICIARY60. Establishment and constitution of Supreme Court.—(1) There shall be a Supreme Court of India consisting of a Chief Justice of India and, until Parliament by law prescribes a larger number, of not more than seven other Judges.(2) Every Judge of the Supreme Court shall be appointed by the President by warrant under his hand and seal after consultation with such of the Judges of the Supreme Court and of the High Courts in the States as the President may deem necessary for the purpose and shall hold office until he attains the age of sixty-five years: Provided that in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of India shall always be consulted: Provided further that—(a) A Judge may, by writing under his hand addressed to the President, resign his office;(b) A Judge may be removed from his office in the manner provided in clause (4).(2A) The age of a Judge of the Supreme Court shall be determined by such authority and in such manner as Parliament may by law provide.(3) A person shall not be qualified for appointment as a Judge of the Supreme Court unless he is a citizen of India and—(a) Has been for at least five years a Judge of a High Court or of two or more such Courts in succession; or(b) Has been for at least ten years an advocate of a High Court or of two or more such Courts in succession; or(c) Is, in the opinion of the President, a distinguished jurist.Explanation I.—In this clause "High Court'' means a High Court which exercises, or which at any time before the commencement of this Constitution exercised, jurisdiction in any part of the territory of India.Explanation II.—In computing for the purpose of this clause the period during which a person has been an advocate, any period during which a person has held judicial office not inferior to that of a district judge after he became an advocate shall be included.(4) A Judge of the Supreme Court shall not be removed from his office except by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of thatHouse present and voting has been presented to the President in the same session for such removal on the ground of proved misbehavior or incapacity.(5) Parliament may by law regulate the procedure for the presentation of an address and for the investigation and proof of the misbehavior or incapacity of a Judge under clause (4).

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(6) Every person appointed to be a Judge of the Supreme Court shall, before he enters upon his office, make and subscribe before the President, or some person appointed in that behalf by him, an oath or affirmation according to the form set out for the purpose in the Third Schedule.(7) No person who has held office as a Judge of the Supreme Court shall plead or act in any court or before any authority within the territory of India.

61. Salaries, etc., of Judges:-(1) There shall be paid to the Judges of the Supreme Court such salaries as may be determined by Parliament bylaw and, until provision in that behalf is so made, such salaries as are specified in the Second Schedule.(2) Every Judge shall be entitled to such privileges and allowances and to such rights in respect of leave of absence and pension as may from time to time be determined by or under law made by Parliament and, until so determined, to such privileges, allowances and rights as are specified in the Second Schedule: Provided that neither the privileges nor the allowances of a Judge nor his rights in respect of leave of absence or pension shall be varied to his disadvantage after his appointment.

62. Appointment of acting Chief Justice:-When the office of Chief Justice of India is vacant or when the Chief Justice is, by reason of absence or otherwise, unable to perform the duties of his office, the duties of the office shall be performed by such one of the other Judges of the Court as the President may appoint for the purpose.

63. Appointment of ad hoc Judges:-(1) If at any time there should not be a quorum of the Judges of the Supreme Court available to hold or continue any session of the Court, the Chief Justice of India may, with the previous consent of the President and after consultation with the Chief Justice of the High Court concerned, request in writing the attendance at the sittings of the Court, as an ad hoc Judge, for such period as may be necessary, of a Judge of a High Court duly qualified for appointment as a Judge of the Supreme Court to be designated by the Chief Justice of India.(2) It shall be the duty of the Judge who has been so designated, in priority to other duties of his office, to attend the sittings of the Supreme Court at the time and for the period for which his attendance is required, and while so attending he shall have all the jurisdiction, powers and privileges, and shall discharge the duties, of a Judge of the Supreme Court.

64. Attendance of retired Judges at sittings of the Supreme Court:-Notwithstanding anything in this Chapter, the Chief Justice of India may at any time, with the previous consent of the President, request any person who has held the office of a Judge of the Supreme Court or of the Federal Court or who has held the office of a Judge of a High Court and is duly qualified for appointment as a Judge of the Supreme Court to sit and act as a Judge of the Supreme Court, and every such person so requested shall, while so sitting and acting, be entitled to such allowances as the President may by order determine and have all the jurisdiction, powers and privileges of, but shall not otherwise be deemed to be, a Judge of that Court: Provided that nothing in this article shall be deemed to require any such person as aforesaid to sit and act as a Judge of that Court unless he consents so to do.

65. Supreme Court to be a court of record:-The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.66. Seat of Supreme Court:-The Supreme Court shall sit in Delhi or in such other place or places, as the Chief Justice of India may, with the approval of the President, from time to time, appoint.

67. Original jurisdiction of the Supreme Court:-Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—(a) Between the Government of India and one or more States; or(b) Between the Government of India and any State or States on one side and one or more other States on the other; or(c) Between two or more States ,if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

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68. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases:- (1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court certifies under article 134A that the case involves a substantial question of law as to the interpretation of this Constitution. (3) Where such a certificate is given, any party in the case may appeal to the Supreme Court on the ground that any such question as aforesaid has-been wrongly decided.Explanation:- For the purposes of this article, the expression “final order” includes an order deciding an issue which, if decided in favour of the appellant, would be sufficient for the final disposal of the case.

69. Appellate jurisdiction of Supreme Court in appeals from High Courts in regard to civil matters:-(1) An appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court in the territory of India if the High Court certifies under article 134A(a) That the case involves a substantial question of law of general importance; and(b) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.(2) Notwithstanding anything in article 132, any party appealing to the Supreme Court under clause (1) may urge as one of the grounds in such appeal that a substantial question of law as to the interpretation of this Constitution has been wrongly decided.(3) Notwithstanding anything in this article, no appeal shall, unless Parliament by law otherwise provides, lie to the Supreme Court from the judgment, decree or final order of one Judge of a High Court.70. Appellate jurisdiction of Supreme Court in regard to criminal matters:-(1) An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court(a) Has on appeal reversed an order of acquittal of an accused person and sentenced him to death; or (b) Has withdrawn for trial before itself any case from any court subordinate to its authority and has in such trial convicted the accused person and sentenced him to death; or(c) Certifies under article 134A that the case is a fit one for appeal to the Supreme Court: Provided that an appeal under sub-clause (c) shall lie subject to such provisions as may be made in that behalf under clause (1) of article 145and to such conditions as the High Court may establish or require.(2) Parliament may by law confer on the Supreme Court any further powers to entertain and hear appeals from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India subject to such conditions and limitations as may be specified in such law.70A. Certificate for appeal to the Supreme Court.Every High Court, passing or making a judgment, decree, final order, or sentence, referred to in clause (1) of article 132 or clause (1) of article 133, or clause (1) of article 134, (a) May, if it deems fit so to do, on its own motion; and(b) Shall, if an oral application is made, by or on behalf of the party aggrieved, immediately after the passing or making of such judgment, decree, final order or sentence, determine, as soon as may be after such passing or making, the question whether a certificate of the nature referred to in clause (1) of article 132,or clause (1) of article 133 or, as the case may be, sub-clause (c) of clause (1) of article 134, may be given in respect of that case.71. Jurisdiction and powers of the Federal Court under existing law to be exercisable by the Supreme Court:- Until Parliament by law otherwise provides, the Supreme Court shall also have jurisdiction and powers with respect to any matter to which the provisions of article 133 or article 134 do not apply if jurisdiction and powers in relation to that matter were exercisable by the Federal Court immediately before the commencement of this Constitution under any existing law.72. Special leave to appeal by the Supreme Court:-(1)Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.73. Review of judgments or orders by the Supreme Court:- Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.74. Enlargement of the jurisdiction of the Supreme Court:- (1) The Supreme Court shall have such further jurisdiction and powers with respect to any of the matters in the Union List as Parliament may by law confer.(2) The Supreme Court shall have such further jurisdiction and powers with respect to any matter as the Government of India and the Government of any State may by special agreement confer, if Parliament by law provides for the exercise of such jurisdiction and powers by the Supreme Court.

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75. Conferment on the Supreme Court of powers to issue certain writs.— Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of article75A. Transfer of certain cases:- (1) Where cases involving the same or substantially the same questions of law are pending before the Supreme Court and one or more High Courts or before two or more High Courts and the Supreme Court is satisfied on its own motion or on an application madeby the Attorney-General of India or by a party to any such case that such questions are substantial questions of general importance, the Supreme Court may withdraw the case or cases pending before the High Court or the High Courts and dispose of all the cases itself: Provided that the Supreme Court may after determining the said questions of law return any case so withdrawn together with a copy of its judgment on such questions to the High Court from which the case has been withdrawn, and the High Court shall on receipt thereof, proceed to dispose of the case in conformity with such judgment.(2) The Supreme Court may, if it deems it expedient so to do for the ends of justice, transfer any case, appeal or other proceedings pending before any High Court to any other High Court.

76. Ancillary powers of Supreme Court:- Parliament may by law make provision for conferring upon the Supreme Court such supplemental powers not inconsistent with any of the provisions of this Constitution as may appear to be necessary or desirable for the purpose of enabling the Court more effectively to exercise the jurisdiction conferred upon it by or under this Constitution.77. Law declared by Supreme Court to be binding on all courts:-The law declared by the Supreme Court shall be binding on all courts within the territory of India.

78. Enforcement of decrees and orders of Supreme Court and orders as to discovery, etc:- (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the President may by order prescribe.(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself.

79. Power of President to consult Supreme Court:-(1) If at any time it appears to the President that a question of law or fact has arisen, or is likely to arise, which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, he may refer the question to that Court for consideration and the Court may, after such hearing as it thinks fit, report to the President its opinion thereon.(2) The President may, notwithstanding anything in the proviso to article131, refer a dispute of the kind mentioned in the said proviso to the Supreme Court for opinion and the Supreme Court shall, after such hearing as it thinks fit, report to the President its opinion thereon.

80. Civil and judicial authorities to act in aid of the Supreme Court.—All authorities, civil and judicial, in the territory of India shall act in aid of the Supreme Court.

THE STATES—THE EXECUTIVEThe Governor81. Governors of States:-There shall be a Governor for each State: Provided that nothing in this article shall prevent the appointment of the same person as Governor for two or more States.82. Executive power of State:-(1) The executive power of the State shall be vested in the Governor and shall be exercised by him either directly or through officers subordinates to him in accordance with this Constitution.(2) Nothing in this article shall(a) Be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or(b) Prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor.83. Appointment of Governor:-The Governor of a State shall be appointed by the President by warrant under his hand and seal.84. Term of office of Governor:-(1) The Governor shall hold office during the pleasure of the President.

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(2) The Governor may, by writing under his hand addressed to the President, resign his office.(3) Subject to the foregoing provisions of this article, a Governor shall hold office for a term of five years from the date on which he enters upon his office: Provided that a Governor shall, notwithstanding the expiration of his term, continue to hold office until his successor enters upon his office.85. Qualifications for appointment as Governor:-No person shall be eligible for appointment as Governor unless he is a citizen of India and has completed the age of thirty-five years.

86. Conditions of Governor's office:-(1) The Governor shall not be a member of either House of Parliament or of a House of the Legislature of any State specified in the First Schedule, and if a member of either House of Parliament or of a House of the Legislature of any such State be appointed Governor, he shall be deemed to have vacated his seat in that House on the date on which he enters upon his office as Governor.(2) The Governor shall not hold any other office of profit.(3) The Governor shall be entitled without payment of rent to the use of his official residences and shall be also entitled to such emoluments, allowances and privileges as may be determined by Parliament by law and, until provision in that behalf is so made, such emoluments, allowances and privileges as are specified in the Second Schedule.(3A) Where the same person is appointed as Governor of two or more States, the emoluments and allowances payable to the Governor shall be allocated among the States in such proportion as the President may by order determine.(4) The emoluments and allowances of the Governor shall not be diminished during his term of office.

87. Other provisions as to Ministers:-(1) The Chief Minister shall be appointed by the Governor and the other Ministers shall be appointed by the Governor on the advice of the Chief Minister, and the Ministers shall hold office during the pleasure of the Governor: Provided that in the States of Bihar, Madhya Pradesh and Orissa, there shall be a Minister in charge of tribal welfare who may in addition be in charge of the welfare of the Scheduled Castes and backward classes or another work.(1A) The total number of Ministers, including the Chief Minister, in the Council of Ministers in a State shall not exceed fifteen per cent. of the total number of members of the Legislative Assembly of that State: Provided that the number of Ministers, including the Chief Minister in a State shall not be less than twelve: Provided further that where the total number of Ministers including the Chief Minister in the Council of Ministers in any State at the commencement of the Constitution (Ninety-first Amendment) Act, 2003exceeds the said fifteen per cent. or the number specified in the first proviso, as the case may be, then the total number of Ministers in that State shall be brought in conformity with the provisions of this clause within six months from such date* as the President may by public notification appoint.(1B) A member of the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council belonging to any political party who is disqualified for being a member of that House under paragraph 2 of the Tenth Schedule shall also be disqualified to be appointed as a Minister under clause (1) for duration of the period commencing from the date of his disqualification till the date on which the term of his office as such member would expire or where he contests any election to the Legislative Assembly of a State or either House of the Legislature of a State having Legislative Council, as the case may be, before the expiry of such period, till the date on which he is declared elected, whichever is earlier.(2) The Council of Ministers shall be collectively responsible to the Legislative Assembly of the State.(3) Before a Minister enters upon his office, the Governor shall administer to him the oaths of office and of secrecy according to the forms set out for the purpose in the Third Schedule.(4) A Minister who for any period of six consecutive months is not a member of the Legislature of the State shall at the expiration of that period cease to be a Minister.(5) The salaries and allowances of Ministers shall be such as the Legislature of the State may from time to time by law determines and, until the Legislature of the State so determines, shall be as specified in the Second Schedule. The Advocate-General for the State

THE STATE LEGISLATURE88. Constitution of Legislatures in States:-(1) For every State there shall be a Legislature which shall consist of the Governor, and(a) In the States of Bihar, Maharashtra, Karnataka and Uttar Pradesh, two Houses;(b) In other States, one House.(2) Where there are two Houses of the Legislature of a State, one shall be known as the Legislative Council and the other as the Legislative Assembly, and where there is only one House, it shall be known as the Legislative Assembly.

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89. Abolition or creation of Legislative Councils in States:-(1) Notwithstanding anything in article 168, Parliament may by law provide for the abolition of the Legislative Council of a State having such a Council or for the creation of such a Council in a State having no such Council, if the Legislative Assembly of the State passes a resolution to that effect by a majority of the total membership of the Assembly and by a majority of not less than two-thirds of the members of the Assembly present and voting.(2) Any law referred to in clause (1) shall contain such provisions for the amendment of this Constitution as may be necessary to give effect to the provisions of the law and may also contain such supplemental, incidental and consequential provisions as Parliament may deem necessary.(3) No such law as aforesaid shall be deemed to be an amendment of this Constitution for the purposes of article 368.

90. Composition of the Legislative Assemblies:-(1) Subject to the provisions of article 333, the Legislative Assembly of each State shall consist of not more than five hundred, and not less than sixty, members chosen by direct election from territorial constituencies in the State.(2) For the purposes of clause (1), each State shall be divided into territorial constituencies in such manner that the ratio between the population of each constituency and the number of seats allotted to it shall, so far as practicable, be the same throughout the State..(3) Upon the completion of each census, the total number of seats in the Legislative Assembly of each State and the division of each State into territorial constituencies shall be readjusted by such authority and in such manner as Parliament may by law determine: Provided that such readjustment shall not affect representation in the Legislative Assembly until the dissolution of the then existing Assembly: Provided further that such readjustment shall take effect from such date as the President may, by order, specify and until such readjustment takes effect, any election to the Legislative Assembly may be held on the basis of the territorial constituencies existing before such readjustment: Provided also that until the relevant figures for the first census taken after the year 2026have been published, it shall not be necessary to readjust(i) The total number of seats in the Legislative Assembly of each State as readjusted on the basis of the 1971 census; and(ii) The division of such State into territorial constituencies as may be readjusted on the basis of the 2001 census, under this clause.

91. Composition of the Legislative Councils:-(1) The total number of members in the Legislative Council of a State having such a Council shall not exceed one third of the total number of members in the Legislative Assembly of that State: Provided that the total number of members in the Legislative Council of a State shall in no case be less than forty.(2) Until Parliament by law otherwise provides, the composition of the Legislative Council of a State shall be as provided in clause (3).(3) Of the total number of members of the Legislative Council of a State (a) As nearly as may be, one-third shall be elected by electorates consisting of members of municipalities, district boards and such other local authorities in the State as Parliament may by law specify;(b) As nearly as may be, one-twelfth shall be elected by electorates consisting of persons residing in the State who have been for at least three years graduates of any university in the territory of India or have been for at least three years in possession of qualifications prescribed by or under any law made by Parliament as equivalent to that of a graduate of any such university;(c) As nearly as may be, one-twelfth shall be elected by electorates consisting of persons who have been for at least three years engaged in teaching in such educational institutions within the State, not lower in standard than that of a secondary school, as may be prescribed by or under any law made by Parliament;(d) As nearly as may be, one-third shall be elected by the members of the Legislative Assembly of the State from amongst persons who are not members of the Assembly;(e) The remainder shall be nominated by the Governor in accordance with the provisions of clause (5).(4) The members to be elected under sub-clauses (a), (b) and (c) of clause (3) shall be chosen in such territorial constituencies as may be prescribed by or under any law made by Parliament, and the elections under the said sub-clauses and under sub-clause (d) of the said clause shall be held in accordance with the system of proportional representation by means of the single transferable vote.(5) The members to be nominated by the Governor under sub-clause (e)of clause (3) shall consist of persons having special knowledge or practical experience in respect of such matters as the following, namely:—Literature, science, art, co-operative movement and social service.

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92. Duration of State Legislatures:-(1) Every Legislative Assembly of every State, unless sooner dissolved, shall continue for five years from the date appointed for its first meeting and no longer and the expiration of the said period of five years shall operate as a dissolution of the Assembly: Provided that the said period may, while a Proclamation of Emergency is in operation, be extended by Parliament by law for a period not exceeding one year at a time and not extending in any case beyond a period of six months after the Proclamation has ceased to operate.(2) The Legislative Council of a State shall not be subject to dissolution, but as nearly as possible one-third of the members thereof shall retire as soon as may be on the expiration of every second year in accordance with the provisions made in that behalf by Parliament by law.

93. Qualification for membership of the State Legislature:-A person shall not be qualified to be chosen to fill a seat in the Legislature of a State unless he(a) Is a citizen of India, and makes and subscribes before some person authorised in that behalf by the Election Commission an oath or affirmation according to the form set out for the purpose in the Third Schedule;(b) Is, in the case of a seat in the Legislative Assembly, not less than twenty-five years of age and, in the case of a seat in the Legislative Council, not less than thirty years of age; and(c) Possesses such other qualifications as may be prescribed in that behalf by or under any law made by Parliament.94. Sessions of the State Legislature, prorogation and dissolution:-(1) The Governor shall from time to time summon the House or each House of the Legislature of the State to meet at such time and place as he thinks fit, but six months shall not intervene between its last sitting in one session and the date appointed for its first sitting in the next session.(2) The Governor may from time to time(a) Prorogue the House or either House;(b) Dissolve the Legislative Assembly.

95. Right of Governor to address and send messages to the House or Houses:-(1) The Governor may address the Legislative Assembly or, in the case of a State having a Legislative Council, both House of the Legislature of the State, or both Houses assembled together, and may for that purpose require the attendance of members.(2) The Governor may send messages to the House or Houses of the Legislature of the State, whether with respect to a Bill then pending in the Legislature or otherwise, and a House to which any message is so sent shall with all convenient dispatch consider any matter required by the message to be taken into consideration.

LEGISLATIVE POWER OF THE GOVERNOR96. Power of Governor to promulgate Ordinances during recess of Legislature:-(1)If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: Provided that the Governor shall not, without instructions from the President, promulgate any such Ordinance if(a) A Bill containing the same provisions would under this Constitution have required the previous sanction of the President for the introduction thereof into the Legislature; or(b) He would have deemed it necessary to reserve a Bill containing the same provisions for the consideration of the President; or(c) An Act of the Legislature of the State containing the same provisions would under this Constitution have been invalid unless, having been reserved for the consideration of the President; it had received the assent of the President.(2) An Ordinance promulgated under this article shall have the same force and effect as an Act of the Legislature of the State assented to by the Governor, but every such Ordinance(a) Shall be laid before the Legislative Assembly of the State, or where there is a Legislative Council in the State, before both the Houses, and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature, or if before the expiration of that period a resolution disapproving it is passed by the Legislative Assembly and agreed to by the Legislative Council, if any, upon the passing of the resolution or, as the case may be, on the resolution being agreed to by the Council; and(b) May be withdrawn at any time by the Governor. Explanation:-Where the Houses of the Legislature of a State having a Legislative Council are summoned to reassemble on different dates, the period of six weeks shall be reckoned from the later of those dates for the purposes of this clause.(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the State assented to by the Governor, it shall be void: Provided that, for the purposes of the provisions of this Constitution relating to the effect of an Act of the

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Legislature of a State which is repugnant to an Act of Parliament or an existing law with respect to a matter enumerated in the Concurrent List, an Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the State which has been reserved for the consideration of the President and assented to by him.

THE HIGH COURTS IN THE STATES97. High Courts for States:-There shall be a High Court for each State.98. High Courts to be courts of record:-Every High Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself.99. Constitution of High Courts:-Every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint.

100. Appointment and conditions of the office of a Judge of a High Court:-(1) Every Judge of a High Court shall be appointed by the President by warrant under his hand and seal after consultation with the Chief Justice of India, the Governor of the State, and, in the case of appointment of a Judge other than the Chief Justice, the Chief Justice of the High Court, and shall hold office, in the case of an additional or acting Judge, as provided in article 224, and in any other case, until he attains the age of sixty-two years: Provided that(a) A Judge may, by writing under his hand addressed to the President, resign his office;(b) A Judge may be removed from his office by the President in the manner provided in clause (4) of article 124 for the removal of a Judge of the Supreme Court; (c) The office of a Judge shall be vacated by his being appointed by the President to be a Judge of the Supreme Court or by his being transferred by the President to any other High Court within the territory of India.(2) A person shall not be qualified for appointment as a Judge of a High Court unless he is a citizen of India and(a) Has for at least ten years held a judicial office in the territory of India; or(b) Has for at least ten years been an advocate of a High Court or of two or more such Courts in succession.Explanation:-For the purposes of this clause(a) In computing the period during which a person has held judicial office in the territory of India, there shall be included any period, after he has held any judicial office, during which the person has been an advocate of a High Court or has held the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law;(aa) In computing the period during which a person has been an advocate of a High Court, there shall be included any period during which the person has held judicial office or the office of a member of a tribunal or any post, under the Union or a State, requiring special knowledge of law after he became an advocate;(b) In computing the period during which a person has held judicial office in the territory of India or been an advocate of a High Court, there shall be included any period before the commencement of this Constitution during which he has held judicial office in any area which was comprised before the fifteenth day of August, 1947, within India as defined by the Government of India Act, 1935, or has been an advocate of any High Court in any such area, as the case may be.(3) If any question arises as to the age of a Judge of a High Court, the question shall be decided by the President after consultation with the Chief Justice of India and the decision of the President shall be final.

101. Power of High Courts to issue certain writs:-(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant to and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause(1), without(a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

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(b) Giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of article 32.

102. Power of superintendence over all courts by the High Court:-(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.(2) Without prejudice to the generality of the foregoing provision, the High Court may(a) Call for returns from such courts;(b) Make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and(c) Prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein: Provided that any rules made, forms prescribed or tables settled under clause (2) or clause(3) Shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.(4) Nothing in this article shall be deemed to confer on High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

103. Transfer of certain cases to High Court:- If the High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may(a) Either dispose of the case itself, or(b) Determine the said question of law and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question, and the said court shall on receipt thereof proceed to dispose of the case in conformity with such judgment.104. Officers and servants and the expenses of High court:-(1) Appointments of officers and servants of a High Court shall be made by the Chief Justice of the Court or such other Judge or officer of the Court as he may direct: Provided that the Governor of the State may by rule require that in such cases as may be specified in the rule no person not already attached to the Court shall be appointed to any office connected with the Court save after consultation with the State Public Service Commission. (2) Subject to the provisions of any law made by the Legislature of the State, the conditions of service of officers and servants of a High Court shall be such as may be prescribed by rules made by the Chief Justice of the Court or by some other Judge or officer of the Court authorised by the Chief Justice to make rules for the purpose: Provided that the rules made under this clause shall, so far as they relate to salaries, allowances, leave or pensions, require the approval of the Governor of the State.(3) The administrative expenses of a High Court, including all salaries, allowances and pensions payable to or in respect of the officers and servants of the Court, shall be charged upon the Consolidated Fund of the State, and any fees or other moneys taken by the Court shall form part of that Fund.

105. Extension of jurisdiction of High Courts to Union territories:-(1) Parliament may by law extend the jurisdiction of a High Court to, or exclude the jurisdiction of a High Court from, any Union territory.(2) Where the High Court of a State exercises jurisdiction in relation to a Union territory,—(a) Nothing in this Constitution shall be construed as empowering the Legislature of the State to increase, restrict or abolish that jurisdiction; and(b) The reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts in that territory, be construed as a reference to the President.

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106. Establishment of a common High Court for two or more States:-(1) Notwithstanding anything contained in the preceding provisions of this Chapter, Parliament may by law establish a common High Court for two or more States or for two or more States and a Union territory.(2) In relation to any such High Court,(a) The reference in article 217 to the Governor of the State shall be construed as a reference to the Governors of all the States in relation to which the High Court exercises jurisdiction;(b) The reference in article 227 to the Governor shall, in relation to any rules, forms or tables for subordinate courts, be construed as a reference to the Governor of the State in which the subordinate courts are situate; and(c) The references in articles 219 and 229 to the State shall be construed as a reference to the State in which the High Court has its principal seat: Provided that if such principal seat is in a Union territory, the references in articles 219and 229 to the Governor, Public Service Commission, Legislature and Consolidated Fund of the State shall be construed respectively as references to the President, Union Public Service Commission, Parliament and Consolidated Fund of India.

SUBORDINATE COURTS107. Appointment of district judges:-(1) Appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a district judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment.107A. Validation of appointments of and judgments etc., delivered by certain district judges:-Notwithstanding any judgment, decree or order of any court,(a) (i) no appointment of any person already in the judicial service of a State or of any person who has been for not less than seven years an advocate or a pleader, to be a district judge in that State, and(ii) no posting, promotion or transfer of any such person as a district judge, made at any time before the commencement of the Constitution (Twentieth Amendment) Act, 1966, otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or void or ever to have become illegal or void by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions;(b) no jurisdiction exercised, no judgment, decree, sentence or order passed or made, and no other act or proceedings done or taken, before the commencement of the Constitution (Twentieth Amendment) Act, 1966 by, or before, any person appointed, posted, promoted or transferred as a district judge in any State otherwise than in accordance with the provisions of article 233 or article 235 shall be deemed to be illegal or invalid or ever to have become illegal or invalid by reason only of the fact that such appointment, posting, promotion or transfer was not made in accordance with the said provisions.

108. Recruitment of persons other than district judges to the judicial service:-Appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.

109. Control over subordinate courts:- The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law.

110. Interpretation:- In this Chapter—(a) the expression “district judge” includes judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions Judge;(b) the expression “judicial service” means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.

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111. Application of the provisions of this Chapter to certain class or classes of magistrates:-The Governor may by public notification direct that the foregoing provisions of this Chapter and any rules made there under shall with effect from such date as may be fixed by him in that behalf apply in relation to any class or classes of magistrates in the State as they apply in relation to persons appointed to the judicial service of the State subject to such exceptions and modifications as may be specified in the notification.

THE UNION TERRITORIES112. Administration of Union territories:-(1) Save as otherwise provided by Parliament by law, every Union territory shall be administered by the President acting, to such extent as he thinks fit, through an administrator to be appointed by him with such designation as he may specify.(2) Notwithstanding anything contained in Part VI, the President my appoint the Governor of a State as the administrator of an adjoining Union territory, and where a Governor is so appointed, he shall exercise his functions as such administrator independently of his Council of Ministers.112A. Creation of local Legislatures or Council of Ministers or both for certain Union territories:-(1) Parliament may by law create for the Union territory of Pondicherry(a) A body, whether elected or partly nominated and partly elected, to function as a Legislature for the Union territory, or(b) A Council of Ministers, or both with such constitution, powers and functions, in each case, as may be specified in the law.(2) Any such law as is referred to in clause (1) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending this Constitution.

112AA. Special provisions with respect to Delhi:-(1) As from the date of commencement of the Constitution (Sixty-ninth Amendment) Act, 1991, the Union territory of Delhi shall be called the National Capital Territory of Delhi (hereafter in this Part referred to as the National Capital Territory) and the administrator thereof appointed under article 239shall be designated as the Lieutenant Governor.(2)(a) There shall be a Legislative Assembly for the National Capital Territory and the seats in such Assembly shall be filled by members chosen by direct election from territorial constituencies in the National Capital Territory.(b) The total number of seats in the Legislative Assembly, the number of seats reserved for Scheduled Castes, the division of the National Capital Territory into territorial constituencies (including the basis for such division) and all other matters relating to the functioning of the Legislative Assembly shall be regulated by law made by Parliament.(c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively; and any reference in articles 326 and 329 to “appropriate Legislature” shall be deemed to be a reference to Parliament.(3) (a) Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries1, 2 and 18.(b) Nothing in sub-clause (a) shall derogate from the powers of Parliament under this Constitution to make laws with respect to any matter for a Union territory or any part thereof.(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or, as the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void: Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent, such law shall prevail in the National Capital Territory: Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly.(4) There shall be a Council of Ministers consisting of not more than ten per cent. of the total number of members in the Legislative Assembly, with the Chief Minister at the head to aid and advise the Lieutenant Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws, except in so far as he is, by or under any law, required to act in his discretion: Provided that in the case of difference of opinion between the Lieutenant Governor

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and his Ministers on any matter, the Lieutenant Governor shall refer it to the President for decision and act according to the decision given thereon by the President and pending such decision it shall be competent for the Lieutenant Governor in any case where the matter, in his opinion, is so urgent that it is necessary for him to take immediate action, to take such action or to give such direction in the matter as he deems necessary.(5) The Chief Minister shall be appointed by the President and other Ministers shall be appointed by the President on the advice of the Chief Minister and the Ministers shall hold office during the pleasure of the President.(6) The Council of Ministers shall be collectively responsible to the Legislative Assembly.(7) (a) Parliament may, by law, make provisions for giving effect to, or supplementing the provisions contained in the foregoing clauses and for all matters incidental or consequential thereto.(b) Any such law as is referred to in sub-clause (a) shall not be deemed to be an amendment of this Constitution for the purposes of article 368 notwithstanding that it contains any provision which amends or has the effect of amending, this Constitution.(8) The provisions of article 239B shall, so far as may be, apply in relation to the National Capital Territory, the Lieutenant Governor and the Legislative Assembly, as they apply in relation to the Union territory of Pondicherry, the administrator and its Legislature, respectively; and any reference in that article to “clause (1) of article 239A” shall be deemed to be a reference to this article or article 239AB, as the case may be.

113AB. Provision in case of failure of constitutional machinery:-If the President, on receipt of a report from the Lieutenant Governor or otherwise, is satisfied(a) that a situation has arisen in which the administration of the National Capital Territory cannot be carried on in accordance with the provisions of article 239AA or of any law made in pursuance of that article; or(b) that for the proper administration of the National Capital Territory it is necessary or expedient so to do, the President may by order suspend the operation of any provision of article 239AA or of all or any of the provisions of any law made in pursuance of that article for such period and subject to such conditions as may be specified in such law and make such incidental and consequential provisions as may appear to him to be necessary or expedient for administering the National Capital Territory in accordance with the provisions of article 239 and article113B. Power of administrator to promulgate Ordinances during recess of Legislature:-(1) If at any time, except when the Legislature of the Union territory of Pondicherry is in session, the administrator thereof is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require:Provided that no such Ordinance shall be promulgated by the administrator except after obtaining instructions from the President in that behalf: Provided further that whenever the said Legislature is dissolved, or its functioning remains suspended on account of any action taken under any such law as is referred to in clause (1) of article 239A, the administrator shall not promulgate any Ordinance during the period of such dissolution or suspension.(2) An Ordinance promulgated under this article in pursuance of instructions from the President shall be deemed to be an Act of the Legislature of the Union territory which has been duly enacted after complying with the provisions in that behalf contained in any such law as is referred to in clause (1) of article 239A, but every such Ordinance(a) Shall be laid before the Legislature of the Union territory and shall cease to operate at the expiration of six weeks from the reassembly of the Legislature or if, before the expiration of that period, a resolution disapproving it is passed by the Legislature, upon the passing of the resolution; and(b) May be withdrawn at any time by the administrator after obtaining instructions from the President in that behalf.(3) If and so far as an Ordinance under this article makes any provision which would not be valid if enacted in an Act of the Legislature of the Union territory made after complying with the provisions in that behalf contained in any such law as is referred to in clause (1) of article 239A, it shall be void.

114. Power of President to make regulations for certain Union territories:-(1) The President may make regulations for the peace, progress and good government of the Union territory of(a) The Andaman and Nicobar Islands;(b) Lakshadweep;(c) Dadra and Nagar Haveli;(d) Daman and Diu;(e) Pondicherry:Provided that when any body is created under article 239A to function as a Legislature for the Union territory of Pondicherry, the President shall not make any regulation for the peace, progress and good

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government of that Union territory with effect from the date appointed for the first meeting of the Legislature: Provided further that whenever the body functioning as a Legislature for the Union territory of Pondicherry is dissolved, or the functioning of that body as such Legislature remains suspended on account of any action taken under any such law as is referred to in clause (1) of article 239A, the President may, during the period of such dissolution or suspension, make regulations for the peace, progress and good government of that Union territory.(2) Any regulation so made may repeal or amend any Act made by Parliament or any other law which is for the time being applicable to the Union territory and, when promulgated by the President, shall have the same force and effect as an Act of Parliament which applies to that territory.

115. High Courts for Union territories:-(1) Parliament may by law constitute a High Court for a Union territory or declare any court in any such territory to be a High Court for all or any of the purposes of this Constitution.(2) The provisions of Chapter V of Part VI shall apply in relation to every High Court referred to in clause (1) as they apply in relation to a High Court referred to in article 214subject to such modifications or exceptions as Parliament may by law provide.(3) Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by or under this Constitution, every High Court exercising jurisdiction immediately before the commencement of the Constitution (Seventh Amendment) Act, 1956, in relation to any Union territory shall continue to exercise such jurisdiction in relation to that territory after such commencement.(4) Nothing in this article derogates from the power of Parliament to extend or exclude the jurisdiction of a High Court for a State to, or from, any Union territory or part thereof.

116. Peculiar features of Indian federalism The mode of formation Position of the states in the federation Citizenship etc Residuary power

117. Interpretation of the legislative lists Plenary powers; if legislative power is granted with respect to a subject and there are no

limitations imposed on the power then it is to be given the widest scope that its words are capable of , without rendering another item nugatory.

Harmonious construction; different entries in the different lists are to be interpreted in such a way that a conflict between them is avoided and each of them is given effect . it must be accepted that the constitution does not want to create conflict and make any entry nugatory

Pith and substance rule; it means that where a law in reality and substance falls within an item on which the legislature which enacted that law is competent to legislate, then such law shall not become invalid merely because it incidentally touches a matter outside the competence of legislature.

Colorable legislation; it is in a way, a rule of interpretation almost opposite to the one discussed above. The constitution does not allow any transgression of power by any legislature either directly or indirectly.

118. Types of writs Habeas corpus Mandamus Prohibition Certiorari Quo warranto

Habeas corpus An effective bulwark of personal liberty – is a remedy available to a person who is confined

without legal justification It means to have the body When a prima facie case for the issue of writ has been made then the court issues a rule nisi

upon the relevant authority to show cause why the writ should not be issued

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This is in national order to let the court know on what grounds he has been confined and to set him free if there is no justification for his detention

This writ has to be obeyed by the detaining authority by producing the person before the court The applicant may be the prisoner or any person acting on his behalf to safeguard his liberty for

the issuance of the writ of habeas corpus as no man can be punished or deprived of his personal liberty except for violation of law and in the ordinary legal manner

An appeal to the supreme court of India may lie against an order granting or rejection the application

The disobedience to this writ is met with by punishment for contempt of court under the contempt of courts act

Mandamus It means we command It’s a command issued to direct any person, corporation, inferior court, or govt, requiring him or it

further in the nature of a public duty This writ is used when the inferior tribunal has declined to exercise jurisdiction wile resort to

certiorari and prohibition arises when the tribunal has wrongly exercised jurisdiction or exceeded its jurisdiction and are available only against judicial and quasi-judicial bodies

Mandamus can be issued against any public authority It commands activity The writ is used for securing judicial enforcement of public duties The applicant must have a legal right to the performance of a legal duty by the person against

whom the writ is prayed for Its not issued if the authority has a discretion Its does not lie against the president or the governor of a state for the exercise of their duties

and power It does not lie also against a private individual or body except where the state is in collusion with

such private party in the matter of contravention of any provision of the constitution of a statute

Prohibition Its issued to an inferior court preventing the latter from usurping jurisdiction which is not legally

vested in it When a tribunal acts without or in excess of jurisdiction or in violation of rules or law a writ of

probibition can be asked for Its generally issued before the trial of the case While mandamus commands activity, prohibition commands inactivity, its available only against

judicial of quasi judicial authorities and is not available against a public officer who is not vested with judicial functions

If abuse of power is apparent this writ may be of right and not a matter of discretion

Certiorari Its available to any person, wherever any body of persons having legal authority to derermine

questions affecting the rights of subjects and having the duty to act judicially in excess of their legal authority

The writ removes the proceedings from such body to the high court, to quash a decision that goes beyond its jurisdiction

Under the constitution of india , all high courts can issue the writ of certiorari throughout their territorial jurisdiction when the subordinate judicial authority acts

Without or in excess of jurisdiction or in Contravention of the rules of natural justice or Commits an error apparent on the face of the record The jurisdiction of the supreme court to issue sucj writs arisesunder article 32 Although the objeft of both the writs of prohibition and of certiorari is the same, prohibition is

available at an earlier stage whereas certiorari is available at a later stage but in similar grounds i.e certiorari is issued after authority has exercised its powers

Quo warranto

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It enables enquiry into the legality of the claim which a person asserts to an office or franchise and to oust him from such position if he is an usurper

The holder of the office has to show to the court under what authority he holds th office it’s issued when

The office is of public and of a substantive nature Created by statute or by the constitution itself and The respondent has asserter his claim to the office It can be issued even though he has not assumed th charge of the office It’s a discretionary remedy which the court may grant or refuse

119. Delegated legislation The limits of the time of the legislature The limits of the amplitude of the legislature , not merely its lack of competene but also its sheer

inability to act in many situations, where directionis wanted and The need of some weapon for coping with situations created by emergency

120. Classification of subordinate legislation Executive legislation Judicial legislation Muncipal legislation Autonomous legislation Colonial legislation

LESSON- 2. INTERPRETATION OF STATUES

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1. Exceptions to the rule of literal interpretationGenerally a statute must be interpreted in its grammatical sense but under the following circumstances it is not possible: - Logical defectsA) AmbiguityB) InconsistencyC) Incompleteness or lacunaeD) Unreasonableness

2. Logical interpretationIf the words of a statute give rise to two or more construction, then the construction which validates the object of the Act must be given effect while interpreting. It is better to validate a thing than to invalidate it or it is better the Act prevails than perish. The purpose of construction is to ascertain the intention of the parliament.3. The mischief ruleThe mischief rule of interpretation originated in Haydon’s case. If there are two interpretations possible for the material words of a statute, then for sure and true interpretation there are certain considerations in the form of questions.4. The following questions must b considered.1. What was the common law before making the Act?2. What was the mischief and defect for which the common law did not provide a remedy?3. What is the remedy resolved by the parliament to cure the disease of the common wealth?4. The true reason of the remedy. The judge should always try to suppress the mischief and advance the remedy. The mischief rule says that the intent of the legislature behind the enactment should be followed.

5. Rule of casus omissusGenerally, the court is bound to harmonize the various provisions of an Act passed by the legislature during interpretation so that repugnancy is avoided. Sometimes certain matters might have been omitted in a Statute. In such cases, they cannot be added by construction as it amounts to making of laws or amending which is a function of legislature. A new provision cannot be added in a statute giving it meaning not otherwise found therein. A word omitted from the language of the statute, but within the general scope of the statute, and omitted due to inadvertence is known as Casus Omissus.In Padma Sundara Rao v State of Tamil Nadu it was held that the cassus omissus cannot be supplied by the court except in the case of a clear necessity and when reason for it is found within the four corners of the statute itself.6. Rule of ejusdem generisEjusdem generis means “of the same kind”. Generally particular words are given their natural meaning provided the context does not require otherwise. If general words follow particular words pertaining to a class, category or genus then it is construed that general words are limited to mean the person or thing of the same general class, category or genus as those particularly exposed.E.g.: if the husband asks the wife to buy bread, milk and cake and if the wife buys jam along with them, it is not invalidated merely because of not specifying it but is valid because it is of the same kind. The basic rule is that if the legislature intended general words to be used in unrestricted sense, then it need not have used particular words at all. This rule is not of universal application.In Devendra Surti v State of Gujarat, under s2 (4) of the Bombay shops and Establishments Act, 1948 the term commercial establishment means “an establishments which carries any trade, business or profession”. Here the word profession is associated to business or trade and hence a private doctor’s clinic cannot be included in the above definitions as under the rule of Ejusdem Generis.In Grasim Industries Ltd v Collector of Customs, Bombay, the rule of Ejusdem Generis is applicable when particular words pertaining to a class, category or genus are followed by general words .In such a case the general words are construed as limited to things of the same kind as those specified. Every clause of a statute must be construed with reference to other clauses of the Act.

INTERNAL AID OF INTERPRETATIONINTERNAL AIDS1. ContextIf the words of a statute are ambiguous then the context must be taken into consideration. The context includes other provisions of the statute, its preamble, the existing state of law and other legal provisions. The intention behind the meaning of the words and the circumstances under which they are framed must be considered.

2. Title

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Title is not part of enactment. So it cannot be legally used to restrict the plain meaning of the words in an enactment.Long title The heading of the statute is the long title and the general purpose is described in it.E.g. Prevention of Food Adulteration Act, 1954, the long title reads as follows “An Act to make provisions for the prevention of adulteration of food”.Short TitleThe short title of the Act is purely for reference only. The short title is merely for convenience. E.g. The Indian Penal Code, 1860.3. PreambleThe Act Starts with a preamble and is generally small. The main objective and purpose of the Act are found in the Preamble of the Statute. “Preamble is the Act in a nutshell. It is a preparatory statement. It contains the recitals showing the reason for enactment of the Act. If the language of the Act is clear the preamble must be ignored. The preamble is an intrinsic aid in the interpretation of an ambiguous act.In Kashi Prasad v State, the court held that even though the preamble cannot be used to defeat the enacting clauses of a statute, it can be treated as a key for the interpretation of the statute.4. HeadingsA group of Sections are given under a heading which act as their preamble. Sometimes a single section might have a preamble. S.378-441 of IPC is “Offences against property”. Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in the words of a statute, headings can be referred.5. Marginal notesMarginal notes are the notes that are printed at the side of the section in an Act and it summarizes the effect of the section. They are not part of the statute. So they must not be considered. But if there is any ambiguity they may be referred only as an internal aid to the construction.6. ProvisoA proviso merely carves out something from the section itself. A proviso is a subsidiary to the main section and has to be construed in the light of the section itself. Ordinarily, a proviso is intended to be part of the section and not an addendum to the main provisions. A proviso should receive strict construction. The court is not entitled to add words to a proviso with a view to enlarge the scope.7. Definition/ Interpretation clauseThe legislature can lay down legal definitions of its own language, if such definitions are embodied in the statute itself, it becomes binding on the courts. When the act itself provides a dictionary for the words used, the court must first look into that dictionary for interpretation.8. Conjunctive and Disjunctive wordsThe word “and” is conjunctive and the word “or” is disjunctive. These words are often interchangeable. The word ‘and’ can be read as ‘or’ and ‘or’ can be read as ‘and’.9. GenderWords’ using the masculine gender is deemed to include females too.10. PunctuationPunctuation is disregarded in the construction of a statute. Generally there was no punctuation in the statutes framed in England before1849.Punctuation cannot control, vary or modify the plain and simple meaning of the language of the statute.11. ExplanationsIN certain provisions of an Act explanations may be needed when doubts arise as to the meaning of the particular section. Explanations are given at the end of each section and it is part and parcel of the enactment.12. Exceptions and savings clauseTo exempt certain clauses from the preview of the main provisions, and exception clause is provided. The things which are not exempted fall within the purview of the main enactment. The saving clause is also added in cases of repeal and re-enactment of a statute.13. SchedulesSchedules form part of a statute. They are at the end and contain minute details for working out the provisions of the express enactment. The expression in the schedule cannot override the provisions of the express enactment. Inconsistency between schedule and the Act, the Act prevails. (Ramchand textiles v sales tax officer)14. IllustrationsIllustrations in enactment provided by the legislature are valuable aids in the understanding the real scope.15. Meaning of the wordsThe definition of the words given must be construed in the popular sense. Internal aid to construction is important for interpretation.

INTERPRETATION OF THE CONSTITUTION

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Q: Enumerate the various principles applied by the judiciary while interpreting the constitution.IntroductionThe constitution is an organic instrument. It is the fundamental law. The general rule adopted for construing a written constitution is the same as for construing any other statute. The constitution should be interpreted so as to give effect to all its parts. There are basically three types of interpretation of the constitution.1. Historical interpretationAmbiguities and uncertainties while interpreting the constitutional provisions can be clarified by referring to earlier interpretative decisions.2. Contemporary interpretation.The constitution must be interpreted in the light of the present scenario. The situation and circumstances prevalent today must be considered.General rules of interpretation of the constitution1. If the words are clear and unambiguous, they must be given full effect.2. The constitution must be read as a whole.3. Principles of Harmonious construction must be applied.4. The constitution must be interpreted in a broad and liberal sense. The court has to infer the spirit of the constitution from the language.6. Internal and External aids may be used while interpreting.7. The Constitution prevails over other statutes.

EXTERNAL AID TO INTERPRETATIONExternal aids1. Historical settingsThe surrounding circumstances and situations which led to the passing of the Act can be considered for the purpose of construing a statute.2. Objects and reason.The statements and object cannot be used as an aid to construction. The statements of object and reason are not only admissible as an aid to construction of a statute .Objects and reasons of a statute is to be looked into as an extrinsic aid to find out the legislative intent, only when the language is obscure or ambiguous.3. Text books and dictionaries.The use of dictionaries is limited to circumstances where the judges and Counsels use different words. In such cases the court may make use of standard authors and well-known authoritative dictionaries. Text books may also be refereed to for assistance in finding out the true construction of a statute.4. International Conventions.International conventions are generally not resorted to for the purpose of interpretation, but it helps as an external aid for the purpose of resolving ambiguities in the language.5. Government publicationsThey are:-A) Reports of commissioner or committeeB) Other documents. Only if the above documents are expressly referred to in the statute, they can be looked at for the purpose of construction.6. Bill Only when the language is ambiguous, bills can be referred.7. Select Committee ReportTo ascertain the legislative intent of a doubtful meaning of a statute, report of legislative committee of the proposed law can be referred. The report of the Select committee can be looked into from an historical angle to find out what was the previous law, before and at the time of enacting the statute.8. Debate and proceedings of the legislature.A speech made in the course of a debate on a bill could be referred to find out the intent of the speaker. Speeches made in the parliament can also be referred.9. State of things at the time of passing of the bill10. History of legislationThe history of legislation usually denotes the course of events which give rise to enactments. The court may refer historical facts if it is necessary to understand the subject matter.11. Extemporaneous expositionIn interpreting old statutes, the construction by the judges who lived at the time of the enactment could be referred as 9it is best to understand the intentions of the makers of the statute.12. Judicial interpretation of wordsIt is an accepted principle of law that if a word has received clear judicial interpretation, then the word is interpreted according to the judicial meaning.

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E.g. Rule in Ryland v Fletcher, absolute liability has become a fixed and standing rule. If definition is not given, popular meaning must be construed.13. Analogy and legal fictionAnalogy means governed by the same general principle.14. Previous English lawIt is not legal and correct to apply decisions of English acts to the construction of an Indian statute. Others external aids include interpretation by the executive, foreign decisions which include policy of the legislature and government policy, purpose of the Act conventions and practices.Spirit and reason of law.The purpose of a statute is the reason of enactment, but the spirit or reason of law is connected with the legislative intent.Acts in Pari materialWhen a statute is ambiguous, the intention of the legislature maybe gathered from statutes relating to same subject. The definitions cannot be generally imported. Other external aids include interpretation of later Acts with the help of earlier Acts and words and expressions used in different Act.

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LESSON-3. THE INDIAN STAMP ACT, 1899

Definitions

(1) Banker:- includes a bank and any person acting as a banker;(2) Bill of exchange:- means a bill of exchange as defined by the Negotiable Instruments Act, 1881 (26 of 1881), and includes also a hundi, and any other document entitling or purporting to entitle any person, whether named therein or not, to payment by any other person of, or to draw upon any other person for, any sum of money;(3) Bill of exchange payable on demand:- includes-(a) An order for the payment of any sum of money by a bill of exchange or promissory note, or for the delivery of any bill ofexchange or promissory note in satisfaction of any sum of money ,or for the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen;(b) An order for the payment of any sum of money weekly, monthly, or at any other stated period; and(c) A letter of credit, that is to say, any instrument by which one person authorizes another to give credit to the person in whose favour it is drawn; (4)Bill of lading:- includes a "through bill lading", but does not include a mate's receipt

(5) Bond:-includes-(a) Any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if; a specified act is performed, or is not performed, as the case may(b) Any instrument attested by a witness and not payable to order or bearer, whereby a person obliges himself to pay money to another; and(c) Any instrument so attested, whereby a person obliges himself to deliver grain or other agricultural produce to another;(6) Chargeable:- means, as applied to an instrument executed or first executed after the commencement of this Act, chargeable under this Act, and, as applied to any other instrument, chargeable under the law in force in l[India] when such instrument was executed or, where several persons executed the instrument at different times, first executed;(7) Cheque:- means a bill of exchange drawn on a specified banker and not expressed to be payable otherwise than on demand;(9) Collector:-(a) Means, within the limits of the towns of Calcutta, Madras and Bombay, the Collector of Calcutta, Madras and Bombay, respectively, and, without those limits, the Collector of a district, and(b) Includes a Deputy Commissioner and any officer whom [State Government]] may, by notification in the Official Gazette, appoint in this behalf;(10) Conveyance:- includes a conveyance on sale and every instrument by which property, whether movable or immovable, is transferred inter vivo and which is not otherwise specifically provided for by Schedule I;(11) Duly stamped:-, as applied to an instrument, means that the instrument bears an adhesive or impressed stamp of not less than the proper amount and that such stamp has been affixed or used in accordance with law for time being in force in l[India]; .(12) Executed" and "execution:-, used with reference to instruments, mean "signed" and "signature";1. Subs. by Act 43 of 1955, sec. 2, for "the States" (w.e.f. 1-4-1956). 2. Clause (8) omitted by the A.D. 1937.(13) Impressed stamp:- includes-(a) Labels affixed and impressed by the proper officer, and(b) Stamps embossed or engraved on stamped paper;(13A) Fudia:- means the territory of India excluding the State of Jammu and Kashmir(14) Instrument:- includes every document by which any right or liability is, or purports to be, created, transferred, limited, extended, extinguished or record;(15) Instrument of partition:- means any instrument whereby co-owners of any property divide or agree to divide such property in severalty, and includes also a final order for effecting a partition passed by any revenue-authority or any Civil Court and an award by an arbitrator directing a partition;(16) Lease:- means a lease of immovable property, and includes also--(a) A palla; (b) A Kabuli at or other undertaking in writing, not being a counterpart of a lease, to cultivate, occupy, or payer deliver rent for, immovable property;(c) Any instrument by which tolls of any description are let;(d) Any writing on an application for a lease intended to signify that the application is granted;

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(16A) Marketable security:- means a security of such a description as to be capable of being sold in any stock market in [fudia] or in the United Kingdom;](17) Mortgage-deed:- includes every instrument whereby, for the purpose of securing money advanced, or to be advanced, by way of loan, Oran existing or future debt, Or the performance of an engagement, one person transfer, or creates, to, or in favour of, another, a right over or in respect of specified property;(18) Paper:- includes vellum, parchment or any other material on which an instrument may be written;(19) Policy of insurance:- includes-(a) Any instrument by which one person, in consideration of a premium, engages to indemnify another agaL Slot ss, damage or liability arising from an unknown or contingent event;(b) A life-policy, and any policy insuring any person against accident or sickness, and any other personal insurance; (19A) Policy of group insurance:- means any instrument covering not less than fifty or such smaller number as the Central Government may approve, either generally or with reference to any particular case, by which an insurer, in consideration of a premium paid by an employer or by an employer and his employees jointly, engages to cover, with or without medical examination and for the sole benefit of persons other than the employer, the lives of all the employees or of any class of them, determined by conditions pertaining to the employment, for amounts of insurance based upon a plan which precludes individual selection;](20) "Policy of sea-insurance" or "sea-policy"-(a) Means any insurance made upon any ship or vessel (whether for marine or inland navigation), or upon the machinery, tackle or furniture of any ship or vessel, or upon any goods, merchandise or property of any description whatever on board of any ship or vessel, or upon the freight of, or any other interest which may be lawfully insured in, or relating to, any ship or vessel, and(b) Includes any insurance of goods, merchandise or property for any transit which includes, not only a sea risk within the Meaning of clause (a), but also any other risk incidental to the transit insured from the commencement of the transit to theultimate destination covered by the insurance; Where any person, in consideration of any sum of money paid or to be paid for additional freight or otherwise, agrees to take upon himself any risk attending goods, merchandise or property of any description whatever while on board of any ship or vessel, or engages to indemnify the owner of any such goods, merchandise or property form any risk, loss or damage, such agreement or engagement shall be deemed to be a contract for sea insurance;(21) Power-of-attorney:- includes any instrument (not chargeable with a fee under the law relating to court-fees for the time being in force) empowering a specified person to act for and in the name of the person executing it;(22) Promissory note;- means a promissory note as defined by the Negotiable Instruments Act, 1881 (26 of 1881);It also includes a note promising the payment of any sum of money out of any particular fund which may or may not be available, or upon any condition or contingency which may or may not be performed or happen;

(23) Receipt:- includes any note, memorandum or writing-(a) Whereby any money, or any bill of exchange, cheque or promissory note is acknowledged to have been received, or(b) Whereby any other movable property is acknowledged to have been received in satisfaction of a debt, or(c) Whereby any debt or demand, or any part of a debt or demand , is acknowledged to have been satisfied or discharged, or(d) Which signifies or imports any such acknowledgment and whether the same is or is not signed with the name of any person?

(24) Settlement:- means any non-testamentary disposition, in writing, of movable or immovable property made-(a) In consideration of marriage,(b) For the purpose of distributing property of the settler among his family or those for whom he desires to provide, or for the purpose of providing for some person dependent on him, or(c) For any religious or charitable purpose; and includes an agreement in writing to make such a disposition and, where, any such disposition has not been made in writing, any instrument recording, whether by way of declaration of trust or otherwise, the terms of any such disposition];

(25) Soldier:- includes any person below the rank of non-commissioned officer who is emolled under the Indian Army Act, 1911 (8 of1911)5;]

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(26) Stamp:- means any mark, seal or endorsement by any agency or person duly authorised by the State Government, and includes an adhesive or impressed stamp, for the purpose of duty chargeable under this Act.]

STAMP-DUTIES3. Instruments chargeable with duty.-Subject to the provisions of this Act and the exemptions contained in Schedule I, the following instruments shall be chargeable With duty of the amount indicated in that Schedule as the proper duty therefore, respectively, that is to say-(a) Every instrument mentioned in that Schedule which, not having been previously executed by any person, is executed in [India] on or after the first day of July, 1899;(b) Every bill of exchange [payable otherwise than on demand] or promissory note drawn or made out of [India] on or after that day and accepted or paid, or presented for acceptance or payment, or endorsed, transferred or otherwise negotiate, in [India]; and(c) Every instrument (other than a bill exchange or promissory note) mentioned in that Schedule, which, not having been previously executed by any person, is executed out of[India] on or after that day relates to any rrroperry situate, or to any matter or thing done or’ to be done, in [India] and is received in [India]:Provided that no duty shall be chargeable in respect of-(1) Any instrument executed by, or on beha1f of, or in favour of, the Government in cases where, but for this exemption, the Government would be liable to pay the duty chargeable in respect of such instrument;(2) Any instrument for the sale, transfer or other disposition, either absolutely or by way of mortgage or otherwise, of any ship or vessel, or any part, interest, share or property of or in any ship or vessel, registered under the Merchant Shipping Act, 1894, or under Act 19 of 1938, or the Indian Registration of Skips Act, 1841 (10 of 1841) as amended by subsequent Acts.(3) Any instrument executed, by, or, on behalf of, or,’ in favour of, the Developer, or Unit or in connection with the carrying out of purposes of the Special Economic Zone. Explanation.-For the purposes of this clause, the expressions "Developer","Special Economic Zone" and "Unit" shall have meanings respectively assigned to them in clause (g), (za) and (zc) of section 2 of the Special Economic Zones Act, 2005.

When declaration are liable to stamp dutyIn case the terms of a sale deed are not only incorporated in the sale deed itself but also included in two separate deeds of declarations then transaction is completed by all the three instruments as envisaged under section 4 and both the declaration are liable to Stamp Duty; Somaiya Organics v. Chief Controlling Revetjue Authority, AIR 1972 All 252.5. Instruments relating to several distinct matters.-Any instrumentcomprising or relating to several distinct matters shall be chargeable with the aggregate amount of the duties with which separate instruments, each comprising or relating to one of such matters, would be chargeable under this Act.Where stamp duty is to be chargedStamp duty is to be charged under Article 57 of the Schedule on the amount of security deposit paid for the due performance of the terms and conditions of the lease; Chief Controlling Revenue Authority v. M.P. Broxero Co., AIR 1980 Del 249.6. Instruments coming within several descriptions in Schedule I.-Subject to the provisions of the last preceding section, an instrument so framed as to come within two or more of the descriptions in Schedule I, shall, where the dutieschargeable there under are different, be chargeable only with the highest of such duties: Provided that nothing in this Act contained shall render chargeable with duty exceeding one rupee a counterpart or duplicate of any instrument chargeable with duty and in respect of which the proper duty has-been paid.

7. Policies of sea-insurance.-(4) Where any sea-insurance is made for or upon a voyage and also for time, or to extend to or cover any time beyond thirty days after the ship shall have arrived at her destination and been there moored at anchor, the policy shall be charged with duty as a policy for or upon a voyage, and also with duty as a policy for time.

8. Bonds, debentures or other securities issued on loans under Act 11 of 1879.-(1) Notwithstanding anything contained in this Act, any local authority raising a loan under the provisions of the Local Authorities Loan Act, 1879, or of any other law for the time being in force, by the issue of bonds, debentures or other securities, shall, in respect of such loan, be chargeable with a duty of [one per centum] on the total amount of the bonds, debentures or other securities issued by it, and such bonds, debentures or other securities need not be stamped and shall not be chargeable with any further duty on renewal, consolidation, subdivision or otherwise.

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(2) The provisions of sub-section (1) exempting certain bonds, debentures or other securities from being stamped and from being chargeable with certain further duty shall apply to the bonds, debentures or other securities of al outstanding loans of the kind mentioned therein, and all such bonds, debentures or other securities shall be valid, whether the same are stamped or not: Provided that nothing herein contained shall exempt the local authority which has issued such bonds, debentures or other securities from the duty chargeable in respect thereof prior to the twenty-sixth day of March, 1897, when such duty has not already been paid or remitted by order issued by the Central Government(3) In the case of willful neglect to pay the duty required by this section, the local authority shall be liable to forfeit to the Government a sum equal to ten per centum upon the amount of duty payable, and a like penalty for every month after the first month during which the neglect continues.

8A. Securities dealt in depository not liable to stamp duty.-Notwithstanding anything contained in this Act or any other law for the time being in force,-(a) An issuer, by the issue of securities to one or more depositories shall, in respect of such issue, be chargeable with duty on the total amount of security issued by it and such securities need not be stamped;(b) Where an issuer issues certificate of security under sub-section (3) of section 14 of the Depositories Act, 1996 (22 of 1996), on such certificate duty shall be payable as is payable on the issue of duplicate certificate under this Act;(c) The transfer of-(i) Registered ownership of securities from a person to a depository or from a depository to a beneficial owner;(ii) Beneficial ownership of securities, dealt with by a depository;(ill) Beneficial ownership of units, such units being units of a Mutual Fund including units of the Unit Trust of India established under sub-section (1) of section 3 of the Unit Trust of India Act, 1963 (52of 1963), dealt with by a depository, shall not be liable to duty under this Act or any other law for the time being in force.Explanation I.-For the purposes of this section, the expressions "beneficial owner", "depository" and "issuer", shall have the meanings respectively assigned to them in clauses (a), (e) and (f) of sub-section (1) of section 2 of the Depositories Act, 1996 (22 of 1996).Explanation 2.-For the purposes of this section, the expression "securities" shall have the meaning assigned to it in clause (h) of section 2 of the Securities Contracts (Regulation) Act, 1956 (42 of 1956).

8B. Corporatization and demutualization schemes and related instruments not liable to duty.-Notwithstanding anything contained in this Act or any other law for the time being in force,~(a) a scheme for corporatization or demutualization, or both of a recognised stock exchange; or(b) any instrument, including an instrument of, or relating to, transfer of any property, business, asset whether movable or immovable, contract, right, liability and obligation, for the purpose of, or in connection with, the corporatization or demutualisation, or both of are cognized stock exchange pursuant to a scheme, as approved by the Securities and Exchange Board of India under sub-section (2)of section 4B of the Securities Contracts (Regulation) Act, 1956, shall not be liable to duty under this Act or any other law for the time being in force.Explanation.-For the purposes of this section,-(a) The expressions "corporatisation", "demutualisation" and "scheme" shall have the meanings respectively assigned to them in clauses (aa),(ab) and (ga) of section 2 of the Securities Contracts (Regulation) Act,1956;(b) "Securities and Exchange Board of India" means the Securities and Exchange Board of India established under section 3 of the Securities and Exchange Board of India Act, 1992.

9. Power to reduce, remit or compound duties.-[Government] May, by rule or order published in the Official Gazette:-(a) Reduce or remit,whether prospectively or retrospectively, in the whole or any part of [the territories under its administration], the duties with which any instruments or any particular class of instruments, or any of the instruments belonging to such class, or any instruments when executed by or in favour of any particular class of persons or by or in favour of any members 0 such class, are chargeable, and(b) Provide for the composition or consolidation of duties S[ of policies of insurance and] in the case of issues by any incorporated company or other body corporate 6[or of transfers (where there is a single transferee, whether incorporated or not)] of debentures, bonds or other marketable securities.(2) In this section, the expression "the Government" means,-(a) In relation to stamp-duty in respect of bills of exchange, cheques, promissory notes, bills of lading, letters of credit, policies of insurance, transfer of shares, debentures, proxies and receipts, and in relation to any other stamp-duty chargeable under this Act and falling within entry 96 of List I in the

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[Seventh Schedule to the Constitution, except the subject matters referred to in clause (b) of sub-section (1);(b) Save as aforesaid, the State Government’s

10. Duties how to be paid:-(l) Except as otherwise expressly provided in this Act, all duties with which any instruments are chargeable shall be paid and such pa~ent shall be indicated on such instruments by means of stamps-(a) According to the provisions herein contained; or(b) When no such provision is applicable thereto, as the [State Government] may by rule direct.(2) The rules made under sub-section (1) may, among other matters, regulate,-(a) In the case of each kind of instrument -the description of stamps which may be used;(b) In the case of instruments stamped with impressed stamps- the numb of stamps which may be used;(c) In the case of bills of exchange or promissory notes the size of the paper on which they are written.

11. Use of adhesive stamps: - The following instruments may be stamped with adhesive stamps, namely:-(a) Instruments chargeable [with a duty not exceeding ten naye paise], except parts of bills of exchange payable otherwise than on demand and drawn in sets;(b) Bills of exchange and promissory notes drawn or made out of[India]; ,(c) Entry as an advocate, vakil or attorney on the roll of a High Court;(d) Notarial acts; and(e) Transfers by endorsement of shares in any incorporated company or other body corporate.

12. Cancellation of adhesive stamps:-(l) (a) Whoever affixes any adhesive stamp to any instrument chargeable with duty which has been executed by any person shall, when affixing such stamp, cancel the same so that it cannot be used again; and(b) Whoever executes any instrument on any paper bearing an adhesive stamp shall, at the time of execution, unless such stamp has been already cancelled in manner aforesaid, cancel the same so that it cannot be used again.(2) Any instrument bearing an adhesive stamp which has not been cancelled so that it cannot be used again, shall so far as such stamp is concerned, be deemed to be unstamped.(3) The person required by sub-section (1) to cancel an adhesive stamp may cancel it by writing on or across the stamp his name or initials or the name or initials of his firm with the true date of his so writing, or in any other effectual manner.

13. Instruments stamped with impressed stamps how to be written.- Every instrument written upon paper stamped with an impressed stamp shall be written in such manner that the stamp may appear on the face of the instrument and cannot be used for or applied to any other instrument.14. Only one instrument to be on same stamp.-No second instrument chargeable with duty shall be written upon a piece of stamped paper upon which an instrument chargeable with duty has already been written: Provided that nothing in this section shall prevent any endorsement which is duly stamped or is not chargeable with duty being made upon any instrument for the purpose of transferring any right created or evidenced thereby, or of acknowledging the receipt of any money or goods the payment or delivery of which is secured thereby.15. Instrument written contrary to section 13 or 14 deemed unstamped.-Every instrument written in contravention of section 13 or section 14 shall be deemed to be unstamped.

16. Valuation in case of annuity, etc:-Where an instrument is executed to secure the payment of an annuity or other sum payable periodically, or where the consideration for a conveyance is an annuity or other sum payable periodically, the amount secured by such instrument or the consideration for such conveyance, as the case may be, shall, for the purposes of this Act be deemed to be-c(a) Where the sum is payable for a definite period so that the total amount to be paid can be previously ascertained-such total amount;(b) Where the sum is payable in perpetuity for r an indefinite time not terminable with any life in being at the date of such instrument or conveyance the total amount which, according to the terms of such instrument or conveyance, will or may be payable during the period to twenty years calculated from the date on which the first payment becomes due; and(c) Where the sum is payable for an indefinite time terminable with any life in being at the date of such instrument or conveyance the maximum amount which will or may be payable as aforesaid during the period of twelve years calculated from the date on which the first payment becomes due.

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17. Stamp where value of subject-matter is indeterminate.-Where the amount or value of the subject-matter of any instrument chargeable with ad Sec. 28valorem duty cannot be, or (in the case of an instrument executed before the commencement of this Act) could not have been, ascertained at the date of its execution or first execution, nothing shall be claimable under such instrument more than the highest amount of value for which if stated in an instrument of the same description, the stamp actually used would, at the date of such execution, have been sufficient: Provided that, in the case of the lease of a mine in which royalty or a share of the produce is received as the rent or part of the rent, it shall be sufficient to have estimated such royalty or the value of such share, for the purpose of stamp duty,-(a) When the lease has been granted by or only behalf of [the Government], at such amount or value as the Collector may, having regard to all the circumstances of the case, have estimated as likely to be payable by way of royalty or share to the Government under the lease, or(b) When the lease has been granted by any other person, at twenty thousand rupees a year, and the whole amount of such royalty or share, whatever it may be, shall be claimable under such lease:] Provided also that where proceedings have been taken in respect of an instrument under section 31 or 41, the amount certified by the Collector shall be deemed to be the stamp actually used at the date of execution.

18. Facts affecting duty to be set forth in instrument:-The consideration(if any) and all other facts and circumstances affecting the chargeability of any instrument with duty, or the amount of the duty with which it is chargeable, shall be fully and truly set forth therein.Duty of parties to an instrumentIt is incumbent upon the parties to an instrument to fully and truly set forth there in the consideration (if any) and all other facts and circumstances affecting the chargeability of such instrument with duty, or the amount of duty with which it is chargeable failing which punishment as prescribed under section 64 of the Act can be imposed but the Revenue authorities are not vested with any power to initiate an independent inquiry of the value of the property so conveyed for determination of duty with which is chargeable; Himalaya House Co. Ltd. v. Chief Controlling Revenue Authority, AIR 1972 SC899.

28. Direction as to duty in case of certain conveyances:-(l) When any property has been contracted to be sold for one consideration for the whole, and is conveyed to the purchaser in separate parts by different instruments, the consideration shall be apportioned in such manner as the parties think fit, provided that a distinct consideration for each separate part is set forth in the conveyance relating thereto, and such conveyance shall be chargeable with advalorem duty in respect of such distinct consideration. (2) Where property contracted to be purchased for one consideration for the whole, by two or more persons jointly, or by any person for himself and others, or wholly for others, is conveyed in parts by separate instruments to the persons by or for whom the same was purchased, for distinct parts of the consideration, the conveyance of each separate part shall be chargeable with ad valorem duty in respect of the distinct part of the consideration therein specified.(3) Where a person, having contracted for the purchase of any property but not having obtained a conveyance thereof, contracts to sell the same to any other person and the property is in consequence conveyed immediately to the sub purchaser, the conveyance shall be chargeable with ad valorem duty in respect of the consideration for the sale by the original purchaser to the sub-purchaser.(4) Where a person, having contracted for the purchase of any property but not having obtained a conveyance thereof, contracts to sell the whole, or any part thereof, to any other person or persons and the property is in consequence conveyed by the original seller to different persons in parts, the conveyance of each part sold to a sub-purchaser shall be chargeable with ad valorem duty in respect only of the consideration paid by such sub-purchaser, without regard to the amount or value of the original consideration, and the conveyance of the residue (if any) of such property to the original purchaser shall be chargeable with ad valorem duty in respect only of the excess of the original consideration over the aggregate of the considerations paid by the sub-purchasers: Provided that the duty on such last-mentioned conveyance shall in no case be less than one rupee.(5) Where a sub-purchaser takes an actual conveyance of the interest of the person immediately selling to him, which is chargeable with ad valorem duty in respect of the consideration paid by him and is duly stamped accordingly, any conveyance to be afterward made to him of the same property by the original seller shall be chargeable with a duty equal to that which would be chargeable on a conveyance for the consideration obtained by such original seller, or, where such duty would exceed five rupees, with a duty of five rupees.29. Duties by whom payable.-In the absence of an agreement to the contrary, the expense of providing the proper stamp shall be borne-(a) In the case of any instrument described in any of the following Articles of Schedule I, namely:-No.2. (Administration Bonds) [No. 6. (Agreement relating to deposit of Title deeds, Pawn or Pledge)],No. 13. (Bill of exchange), No. 15. (Bonds), No. 16. (Bottomry Bond),

34 P.SATYANARAYANA


No. 26. (Customs Bond), No. 27. (Debenture),1. Subs. by Act 15 of 1904, sec. 5, for "No.6. (Agreement to mortgage)".Sec. 29] The Indian Stamp Act, 1899 No. 32. (Further Charge), No. 34. (Indemnity-Bond), No. 40. (Mortgage-deed),No. 49. (Promissory-note), No. 55. (Release), No. 56. (Respondentia Bond),No. 57. (Security Bond or Mortgage-deed), No. 58. (Settlement),No. 62(a). (Transfer of shares in an incorporated company or other body corporate),No. 62(b). (Transfer of debentures, being marketable securities, whether the debenture is liable to duty or not, except debentures provided for by section 8),"No. 62(c). (Transfer of any interest secured by a bond, mortgage-deed or policy of insurance);by the person drawing, making or executing such instrument;1(b) In the case of a policy of insurance other than fire-insurance-by the person effecting the insurance;(bb) In the case of a policy of fire-insurance-by the person issuing the policy(c) In the case of a conveyance (including are conveyance of mortgaged property) by the grantee; in the case of a lease or agreement to lease by the lessee or intended lessee;(d) In the case of a counterpart of a lease-by the lessor;(e) In the case of an instrument of exchange-by the parties in equal shares;(f) In the case of a certificate of sale-by the purchaser of the property to which such certificate relates; and(g) In the case of an instrument of partition-by the parties thereto in proportion to their respective shares in the whole property partitioned, or, when the partition is made in execution of an order passed by a Revenue authority or Civil Court or arbitrator, in such proportion as such authority, Court or arbitrator directs.

INSTRUMENTS NOT DULY STAMPED

29. Examination and impounding of instruments:-(l) Every person having by law or consent of parties, authority to receive evidence, and every person in charge of a public office, except an officer of police, before whom any instrument,chargeable, in his opinion, with duty, is produced or comes in the performance of his functions, shall, if it appears to him that such instrument is not duly stamped, impound the same.(2) For that purpose every such person shall examine every instrument so chargeable and so produced or coming before him, in order to ascertain whether it is stamped with a stamp of the value and description required by the law in force in [India] when such instrument was executed or first executed:

Provided that-(a) Nothing herein contained shall be deemed to require any Magistrateor Judge of a Criminal Court to examine or impound, if he does not think fit so to do, any instrument coming before him in the course of any proceeding other than a proceeding under\Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898); (b) In the case of a Judge of a High Court, the duty of examining and impounding any instrument under this section may be delegated to such officer as the Court appoints in this behalf.(3) For the purposes of this section, in cases of doubt,-(a) [State Government] may determine what offices shall be deemed to be public offices; and(b) [State Government] may determine who shall be deemed to be persons in charge of public offices.

30. Special provision as to unstamped receipts:-Where any receipt chargeable 3[with a duty not exceeding ten naye paise] is tendered to or produced before any officer unstamped in the course of the audit of any public account, such officer may in his discretion instead of impounding the instrument, require a duly stamped receipt to be substituted there for.

31. Instruments not duly stamped inadmissible in evidence, etc:-No instrument chargeable with duty shall be admitted in evidence for any purpose by any person having by law or consent of parties authority to receive evidence, or shall be acted upon, registered or authenticated by any such person or by any public officer, unless such instrument is duly stamped:Provided that-(a) Any such instrument [shall], be admitted in evidence on payment of the duty with which the same is chargeable, or, in the case of an instrument insufficiently stamped, of the amount required to makeup such duty, together with a penalty of five rupees, or, when ten times the amount of the proper duty or deficient portion thereof exceeds five rupees, of a sum equal to ten times such duty or portion;(b) Where any person from whom a stamped receipt could have been demanded, has given an unstamped receipt and such receipt, if stamped, would be admissible in evidence against him, then such receipt shall be admitted in evidence against him, then such receipt shall be admitted in evidence against him on payment of a penalty of one rupee by the person tendering it;

35 P.SATYANARAYANA


(c) Where a contract or agreement of any kind is effected by correspondence consisting of two or more letters and anyone of the -letters bears the proper stamp, the contract or agreement shall be deemed to be duly stamped;(d) Nothing herein contained shall prevent the admission of any instrument in evidence in any proceeding in a Criminal Court, other than a proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 ( 5 of 1898);(e) Nothing herein cofitained shall prevent the admission of any instrument in any Court when such instrument has been executed by or on behalf of [Governmental or where it bears the certificate of the Collector as provided by section 32 or any other provision of this Act.

When promissory note insufficiently stampedAn insufficiently stamped promissory note executed as collateral security cannot be accepted in evidence whereas some other evidence can be adduced to prove oral agreement in respect of the debt; Khitish Chandra v. Raj Kishore Sahu, AIR 1980 Ori 10.

32. Admission of instrument where not to be questioned.-Where an instrument has been admitted in evidence, such admission shall not, except as provided in section 61, be called in question at any stage of the same suit orproceeding on the ground that the instrument has not duly stamped.

33. Admission of improperly stamped instruments.-[State Government] may make rules providing that, where an instrument bears a stamp of sufficient amount but of improper description, it may, on payment of the duty with which the same is chargeable be certified to be duly stamped, and any instrument so certified shall then be deemed to have been duly stamped as from the date of its execution.

34. Instruments impounded, how dealt with.-(l) Where the person impounding an instrument under section 33 has by law or consent of parties authority to receive evidence and admits such instrument in evidence upon payment of a penalty as provided by section 35 or of duty as provided by section 37, he shall send to the Collector an authenticated copy of such instrument, together with a certificate in writing, stating the amount of duty and penalty levied in respect thereof, and shall send such amount to the Collector, or to such person as he may appoint in this behalf.(2) In every other case, the person so impounding an instrument shall send it in original to the Collector.

35. Collector's power to refund penalty paid under section 38, subsection (1).-(1) When a copy of an instrument is sent to the Collector under section 38, sub-section (1), he may, if he thinks fit refund any portion of the penalty in excess of five rupees which has been paid in respect of such instrument.(2) When such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may refund the whole penalty so paid.

36. Collector's power to stamp instruments impounded.-(l) When the Collector impounds any instrument under section 33, or receives any instrument sent to him under section 38, sub-section (2), Not being an instrument chargeable [with a duty not exceeding ten naye paise] only or a bill of exchange or promissory note, he shall adopt the following procedure:-(a) if he is of opinion that such instrument is duly stamped, or is not chargeable with duty, he shall certify by endorsement thereon that it is duly stamped, or that it is not so chargeable, as the case may be;(b) If he is of opinion that such instrument is chargeable with duty and is not duly stamped, he shall require the payment of the proper duty or the amount required to make up the same, together with a penalty of the five rupees; or, if he thinks fit, [an amount not exceeding] ten times the amount of the proper duty or of the deficient portion thereof, whether such amount exceeds or falls short of five rupees :Provided that, when such instrument has been impounded only because it has been written in contravention of section 13 or section 14, the Collector may, if he thinks fit, remit the whole penalty prescribed by this section.(2) Every certificate under clause (a) of sub-section (1) shall, for the purposes of this Act, be conclusive evidence of the matters stated therein.(3) Where an instrument has been sent to the Collector under section 38, subsection (2), The Collector shall, when he has dealt with it as provided by-the section, return it to the impounding officer.

37. Instruments unduly stamped by accident.-If any instrument chargeable with duty and not duly stamped, not being an instrument chargeable [with a duty not exceeding ten naye paise] only or a bill of exchange or promissory note, is produced by any person of his own motion before the Collector within

36 P.SATYANARAYANA


one year from the date of its execution or first execution, and such person brings to the notice of the Collector the fact that such instrument is not duly stamped and offers to pay the Collecto~rthe amount of the proper duty, or the amount required to makeup the same, and e Collector is satisfied that the omission to duly stamp such instrument has be n occasioned by accident, mistake or urgent necessity, he may, instead of proceeding under sections 33 and 40, receive such amount and proceed as next hereinafter prescribed.

38. Endorsement of instruments in which duty has been paid under section35, 40 or 41.-(1) When the duty and penalty (if any) leviable in respect of any instrument have been paid under section 35, section 40 or section 41, the person admitting such instrument in evidence or the Collector, as the case may be, shall certify by endorsement thereon that the proper duty or, as the case may be, the proper duty and penalty (stating the amount of each) have been levied in respect thereof, and the name and residence of the person paying them.(2) Every instrument so endorsed shall thereupon be admissible in evidence, and may be registered and acted upon and authenticated as if it had been duly stamped, and shall be delivered on his application in this behalf to the person from whose possession it came into the hands of the officer impounding it, or as such person may direct:Provided that-(a) No instrument which has been admitted in evidence upon payment of duty and a penalty under section 35, shall be so delivered before the expiration of one month from the date of such impounding, or if the Collector has certified that its further detention is necessary and has not cancelled such certificate;(b) Nothing in this section shall affect the 3Code of Civil Procedure, 1882(14 of 1882), section 144 clause 3.

39. Persons paying duty or penalty may recover same in certain cases.-(1) When any duty or penalty has been paid under section 35, section 37, section40 or section 41, by any person in respect of an instrument, and, by agreement or under the provisions of section 29 or any other enactment in force at the time such instrument was executed, some other person was bound to bear the expense of providing the proper stamp for such instrument, the first-mentioned person shall be entitled to recover from such other person the amount of the duty or penalty so paid.(2) For the purpose of such recovery any certificate granted in respect of such instrument under this Act shall be conclusive evidence of the matters therein certified.(3) Such amount may, if the Court thinks fit, be included in any order as to costs in any suit or proceeding to which such persons are parties and in which such instrument has been tendered in evidence. If the Court does not include the amount in such order, no further proceedings for the recovery of the amount shall be maintainable.

40. Power to Revenue authority to refund penalty or excess duty in certain cases.-(1) Where any penalty is paid under section 35 or section 40, the Chief Controlling Revenue-Authority may, upon application in writing made within one year from the date of the payment, refund such penalty wholly or in part.(2) Where, in the opinion of the Chief Controlling Revenue-Authority, stamp-duty in excess of that which is legally chargeable has been charged and paid under section 35 or section 40, such authority may, upon application in writing made within three months of the order charging the same, refund the excess.

41. Non-liability for loss of instruments sent under section 38.-(1) If any instrument sent to the Collector under section 38, sub-section (2), is lost, destroyed or damaged during transmission, the person sending the same shall not be liable for such loss, destruction or damage.(2) When any instrument is about to be so sent, the person from whose possession it came into the hands of the person impounding the same, may require a copy thereof to be made at the expense of such first-mentioned person and authenticated by the person impounding such instrument.

42. Power of payer to stamp bills and promissory notes received b him unstamped.-When any bill of exchange l[or promissory note] chargeable [with a duty not exceeding ten naye paise] is presented for payment unstamped, the person to whom it is so presented, may affix thereto the necessary adhesive stamp, and, upon cancelling the same in manner hereinbefore provided, may pay the sum payable upon such bil13[or note], and may charge the duty against the person who ougJ1t to have paid the same, or deduct it from the sum payables aforesaid, and suchbil13[or note] shall, so far as respects the duty, be deemed good and valid: Provided that nothing herein contained shall relieve any person from any penalty or proceeding to which he may be liable in relation to such bill [or note].

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48. Recovery of duties and penalties.-AII duties, penalties and other sums required to be paid under this Chapter may be recovered by the Collector by distress and sale of the movable property of the person from whom the same are due, or by any other process for the time being in force for the recovery of arrears of land-revenue

ALLOWANCES FOR STAMPS IN CERTAIN CASES

43. Allowance for spoiled stamps.-Subject to such rules as may be made by [State Government] as to the evidence to be required or, the enquiry to be made, the Collector may, on application made with the period prescribed in section 50, and if he is satisfied as to the facts, make allowance for impressed stamps spoiled in the cases hereinafter mentioned, namely:-(a) The stamp on any paper inadvertently and undesignedly spoiled, obliterated or by error in writing or any other means rendered unfit for the purpose intended before any instrument written thereon is executed by any person;(b) The stamp on any document which is written out wholly or in part, but which is not signed or executed by any party thereto;(c) In the case of bills of exchange [payable otherwise than on demand] or promissory notes-1. The stamp on[any such bill of exchange] signed by or on behalf of the drawer which has not been accepted or made use of in any manner whatever or delivered out of his hands for any purpose other than by way of tender for acceptance: Provided that the paper on which any such stamp is impressed, does not bear any signature intended as or for the acceptance of any bill of exchange to be afterwards written thereon;(2) The stamp on any promissory note signed by or on behalf of the maker which has not been made use of in any manner whatever or delivered out of his hands;(3) The stamp used or intended to be used for 6[any such bill of exchange] or promissory note signed by, or on behalf of, the drawer thereof, but which from any omission or error has been spoiled or rendered useless, although the same, being a bill of exchange may have been presented for acceptance or accepted or endorsed, or, being a promissory note, may have been delivered to the payee: Provided that another completed and duly stamped bill of exchange or promissory note is produced identical in every particular, except in the correction of such omission or error as aforesaid, with the spoiled bill or note;(d) The stamp used for an instrument executed by any party thereto, which-(1) Has been afterwards found to be absolutely void in law from the beginning;(2) Has been afterwards found unfit, by reason of any error –or mistake therein, for the purpose originally intended;(3) By reason of the death of any person by whom it is necessary that it should be executed, without having executed the same, or of the refusal of any such person to execute the same, cannot be completed so as to effect the intended transaction in the form proposed;(4) For want of the execution thereof by some material party, and his inability or refusal to sign the same, is in fact incomplete and insufficient for the purpose for which it was intended;(5) By reason of the refusal of any person to act under the same, or to advance any money intended to be thereby secured, or by the refusal or non-acceptance of any office thereby granted, totally fails of the intended purpose;(6) Become useless in consequence of the transaction intended to be there by effected being effected by some other instrument between the same parties and bearing a stamp of not less value;(7) Is deficient in value and the transaction intended to them there by effected has been effected by some other instrument between the same parties and bearing a stamp of not less value;(8) Is inadvertently and undesignedly spoiled, and in lieu whereof another instrument made between the same parties and for the same purpose is executed and duly stamped: Provided that in the case of an executed instrument, no legal proceeding has been commenced in which the instrument could or would have been given or offered in evidence and that the instrument is given up to be cancelled.Explanation.- The certificate of the Collector under section 32 that the full duty with which an instrument is chargeable, has been paid is an impressed stamp within the meaning of this section.

44. Application for relief under section 49 when to be made.- The application for relief under section 49 shall be made within the following periods, that is to say- (1) In the cases mentioned in clause (d) (5), within two months of the date of the instrument;(2) In the case of a stamped paper on which no instrument has been executed by any of the parties thereto, within six months after the stamp has been spoiled;(3) In the case of a stamped paper in which an instrument has been executed by any of the parties thereto, within six months after the date of the instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed:Provided that-

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(a) When the spoiled instrument has been for sufficient reasons sent out of [India], the application may be made within six months after it has been received back in[India];(b) When, from unavoidable circumstances, any instrument for which another instrument has been substituted, cannot be given up to be cancelled within the aforesaid period, the application may be made within six-months after the date of execution of the substituted instrument.45. Allowance in case of printed forms no longer required by Corporations.-The Chief Controlling Revenue-Authority 2[or the Collector if empowered by the Chief Controlling Revenue-Authority in this behalf] may, without limit of time, make allowance for stamped papers used for printed forms of instruments, 3[by any banker or] by any incorporated company or other body corporate, if for any sufficient reason such forms have ceased to be required by the said 3[banker], company or body corporate: Provided that such authority is satisfied that the duty in respect of such stamped paper has been duly paid.

46. Allowance for misused stamps.-(a) When any person has inadvertently used for an instrument chargeable with duty, a stamp of a description other thanthat prescribed for such instrument by the rules made under this Act, or a stamp of greater value than was necessary, or has inadvertently used any stamp for an instrument not chargeable with any duty; or(b) When any stamp used for an instrument has been inadvertently rendered useless under section IS, owing to such instrument having been written in contravention of the provisions of section 13,the Collector may, on application made within six months after the date of the instrument, or, if it is not dated, within six months after the execution thereof by the person by whom it was first or alone executed, and upon the instrument, if chargeable with duty, being re-stamped with the proper duty, cancel and allow as spoiled the stamp so misused or rendered useless.

47. Allowance for spoiled or misused stamps how to be made.-In any case in which allowance is made for spoiled or misused stamps, the Collector may give in lieu thereof-(a) Other stamps of the same description and value; or(b) If required and he thinks fit, stamps of any other description to the same amount in value; or(c) At his discretion, the same value in money, deducting l[ten naye paise] for each rupee or fraction of a rupee.

48. Allowance for stamps not required for use.-When any person is possessed of a stamp or stamp which have not been spoiled or rendered unfit or useless for the purpose intended, but for which he has no immediate use, the Collector shall repay to such person the value of such stamp or stamps in money, deducting [ten Naye paise] for each rupee or portion of a rupee, upon such person delivering up the same to be cancelled, and proving to the Collector’s satisfaction- that such stamp or stamps were purchased by such person with a bonafide intention to use them; and(b) That he has paid the full price thereof; and(c) That they were so purchased within the period of six months next proceeding the date on which they were so delivered: Provided that, where the person is a licensed vendor of stamps, the Collector may, if he thinks fit, make the repayment of the sum actually paid by the vendor without any such deduction as aforesaid.

48A. Allowances for stamps in denominations of annas.-Notwithstanding anything contained in section 54, when any person is possessed of a stamp or stamps in any denominations other than in denominations of annas four or multiples thereof and such stamp or stamps has or have not been spoiled, the Collector shall repay to such person the value of such stamp or stamps in money calculated in accordance with the provisions of sub-section (2) of section14 of the Indian Coinage Act, 1906 (3 of 1906), upon such person delivering up, within six months from the commencement of the Indian Stamp (Amendment)Act, 1958 (19 of 1958), such stamp or stamps to the Collector.

49B. Allowances for Refugee Relief stamps.-Notwithstanding anything contained in section 54, when any person is possessed of stamps bearing the inscription "Refugee Relief" (being stamps issued in pursuance of section 3A before its omission) and such stamps have not been spoiled, the Collector shall, upon such person delivering up, within six month, from the commencement of the Refugee Relief Taxes (Abolition) Act, 1973 (13 of 1973), such stamps to the Collector, refund of such person the value of such stamps in money or give in lieu thereof other stamps of the same value: Provided that, the State Government may, with a view to facilitating expeditious disposal of claims for such refunds, specify, in such manner as it deems fit, any other procedure which may also be followed for claiming such refund.

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50. Allowance on renewal of certain debentures.-When any duty stamped debenture is renewed by the issue of a new debenture in the same terms, the Collector shall, upon application made within one month, repay to the person issuing such debenture, the value of the stamp on the original or on the new debenture, whichever shall be less: Provided that the original debenture is produced before the Collector and cancelled by him in such manner as the State Government may direct.Explanation.-A debenture shall be deemed to be renewed in the same terms within the meaning of this section notwithstanding the following charges:-(a) The issue of two or more debentures in place of one original debenture, the total amount secured being the same;(b) The issue of one debenture in place of two or more original debentures, the total amount secured being the same;(c) The substitution of the name of the holder at the time of renewal for the name of the original holder; and(d) The alteration of the rate of interest or the dates of payment thereof.

REFERENCE AND REVISION51. Control of, and statement of case to, Chief Controlling Revenue-Authority.-(l) The power exercisable by a Collector under Chapter IV and Chapter V l[and under clause (a) of the first proviso to section 26] shall in all cases be subject to the control of the Chief Controlling Revenue-Authority.(2) If any Collector, acting under section 31, section 40 or section 41, feels doubts as to the amount of duty with which any instrument is chargeable, he may draw up a statement of the case, and refer it, with his own opinion thereon, for the decision of the Chief Controlling Revenue-Authority.(3) Such authority shall consider the case and send a copy of its decision to the Collector who shall proceed to assess and charge the duty (if any) inconformity with such decision.Power of Chief Controlling Revenue Authority The Chief Controlling Revenue Authority had been empowered to intervene with an order passed by the Collector if it was erroneous; Trideshwar Dayal v. Maheswar Dayal, AIR 1990 SC 485.When reference not requiredReference under this section is not required if a document had already been admitted for the purposes of registration; P. Balakrishanv. The District Registrar, Tuticorin, AIR 1989 Mad 257.

52. Statement of case by Chief Controlling Revenue-Authority to High Court.-(l) The Chief Controlling Revenue-Authority may state any case referred to it under section 56, sub-section (2), or otherwise coming to its notice, and refer such case, with its own opinion thereon,-(a) If it arises in a State to the High Court for that State; "(b) If it arises in the Union territory of Delhi to the High Court of Delhi;](C) If it arises in the Union territory of Arunachal Pradesh or Mizoram, to the Gauhati High Court (the High Court of Assam, Nagaland, Meghalaya, Manipur and Tripura)(d) If it arises in the Union territory of the Andaman and NicobarIslands, to the High Court at Calcutta;(e) If it arises in the Union territory of the 3[Lakshadweep], to the High Court of Kerala;](ee) If it arises in the Union territory of Chandigarh, to the High Court of Punjab and Haryana;](f) If it arises in the Union territory of Dadra and Nagar Haveli, to the High Court of Bombay.](2) Every such case shall be decided by not less than three Judges of the High Court to which it is referred, and in case of difference the opinion of the majority shall prevail.

53. Power of High Court to call for further particulars as to case stated.-If the High Court is not satisfied that the statements contained in the case are sufficient to enable it to determine the questions raised thereby, the Court may refer the case back to the Revenue-Authority by which it was stated, to make such additions thereto or alterations therein as the Court may direct in that behalf.

54. Procedure in disposing of case stated.-(l) The High Court upon the hearing of any such case, shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded.(2) The Court shall send to the Revenue-Authority by which the case was stated, a copy of such judgment under the seal of the Court and the signature of the Registrar; and the Revenue-Authority shall, on receiving such copy, dispose of the case conformably to such judgment.

55. Statement of case by other Courts to High Court.-(l) If any Court, other than a Court mentioned in section 57, feels doubts as to the amount of duty to be paid in respect of any instrument under proviso (a) to section 35, the Judge may draw up a statement of the case and refer it, with his own opinion there on, for the decision of the High Court to which, if he were the Chief Controlling Revenue-Authority, he would, under section 57, refer the same.

40 P.SATYANARAYANA


(2) Such Court shall deal with the case as if it had been referred under section 57, and send a copy of its judgment under the seal of the Court and the signature of the Registrar to the Chief Controlling Revenue-Authority and other like copy to the Judge making the reference, who shall, on receiving such copy dispose of the case conformably to such judgment.(3) References made under sub-section (1), when made by a Court subordinate to a District Court, shall be made though the District Court, and, any subordinate Revenue Court, shall be made through the Court immediately superior.

56. Revision of certain decisions of Courts regarding the sufficiency of stamps.-(l) When any Court in the exercise of its civil or revenue jurisdiction of any Criminal Court in any proceeding under Chapter XII or Chapter XXXVI of the Code of Criminal Procedure, 1898 (5 of 1898), makes any order admitting any instrument in evidence as duly stamped or as not requiring a stamp, or upon payment of duty and a penalty under section 35, the Court to which appeals lie from, or references are made by, such first-mentioned Court may, of its own motion or on the application of the Collector, take such order into consideration.(2) If such Court, after such consideration, is of opinion that such instrument should not have been admitted in evidence without the payment of duty and penalty under section 35, or without the payment of a higher duty and penalty than those paid, it may record a declaration to that effect, and determine the amount of duty with which such instrument is chargeable, and may require any person in whose possession or power such instrument then is, to produce the same, and may impound the same when produced.(3) When any declaration has been recorded under sub-section (2), the Court recording the same shall send a copy thereof to the Collector, and, where the instrument to which it relates has been impounded or is otherwise in the possession of such Court, shall also send him such instrument.(4) The Collector may thereupon, notwithstanding anything contained in the order admitting such instrument in evidence, or in any certificate granted under section 42, or in section 43, prosecute any person for any offence against the Stamp law which the Collector considers him to have committed in respect of such instrument:Provided that-(a) No such prosecution shall be instituted where the amount (including duty and penalty) which, according to the determination of such Court, was payable in respect of the instrument under section 35, is paid to the Collector, unless he thinks that the offence was committed with an intention of evading payment of the proper duty;(b) Except for the purposes of such prosecution, no declaration made under this section shall effect the validity of any order admitting any instrument in evidence, or of any certificate granted under section 42.

CRIMINAL OFFENCES AND PROCEDURE57. Penalty for executing, etc., instrument not duty stamped.-(l) Any person-(a) Drawing, making, issuing, endorsing or transferring, or signing otherwise than as a witness, or presenting for acceptance or payment, or accepting, paying or receiving payment of or in any manner negotiating, any bill of exchange payable otherwise than on demand or promissory note without the same being duly stamped; or(b) Executing or signing otherwise than as a witness any other instrument chargeable with duty without the same being duly stamped; or. (c) Voting or attempting to vote under any proxy not duly stamped, shall for every such offence be punishable with fine which may extend to five hundred rupees:Provided that, when any penalty has been paid in respect of any instrument under section 35, section 40 or section 61, the amount of such penalty shall be allowed in reduction of the fine (if any) subsequently imposed under this section in respect of the same instrument upon the person who paid such penalty.(2) If a share warrant is issued without being duly stamped, the company issuing the same, and also every person who, at the time when it is issued, is the managing director or secretary or other principal officer of the company, shall be punishable with fine which may extend to five hundred rupees.

57. Penalty for failure to cancel adhesive stamp.-Any person required by section 12 to cancel an adhesive stamp, and failing to cancel such stamp in manner prescribed by that section, shall be punishable with fine which may extend to one hundred rupees.

58. Penalty for omission to comply with provisions of section 27.-Anyperson who, with intent to defraud the Government,-(a) Executes any instrument in which all the facts and circumstances required by section 27 to be set forth in such instrument are not fully and truly set forth; or

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(b) Being employed or concerned in or about the preparation of any instruments, neglects or omits fully and truly to set forth therein all such facts and circumstances; or(c) Does any other act calculated to deprive the Government of any duty or penalty under this Act, shall be punishable with fine which may extend to five thousand rupees.

59. Penalty for refusal to give receipt, and for devices to evade duty on receipts .-Any person who,-(a) Being required under section 30 to give a receipt, refuses or neglects to give the same; or(b) With intent to defraud the Government of any duty, upon a payment of money or delivery of property exceeding twenty rupees in amount or value, gives a receipt for an amount or value not exceeding twenty rupees, or separates or divides the money or property paid or delivered, shall be punishable with fine which may extend to one hundred rupees.

60. Penalty for not making out policy or making one not duly stamped.-Any person who,-(a) receives, or takes credit for, any premium or consideration for any contract of insurance and does not, within one month after receiving, or taking credit for, such premium or consideration, make out and execute a duly stamped policy of such insurance; or(b) Makes, executes or delivers out any policy which is not duly stamped, or pays or allows in account, or agrees to payor' allow in account, any money upon~ or in respect of, any such policy, shall be punishable with fine which may extend to two hundred rupees.

61. Penalty for not drawing full number of bills or marine policies purporting to be in sets.-Any person drawing or executing a bill or exchange [payable otherwise than qn demand] or a policy of marine insurance purporting to be drawn or executed in a set of two or more, and not at the same time drawing or executing on paper duly stamped the whole number of bills or policies of which such bill or policy purports the set to consist, shall be punishable with fine which may extend to one thousand rupees.

62. Penalty for post-dating bills, and for other devices to defraud the revenue.-Any person who(a) with intent to defraud the Government of duty, draws, makes or issues any bill of exchange or promissory note bearing a date subsequent to that on which such bill or note is actually drawn or made; or(b) knowing that such bill or note has been so post-dated, endorses, transfers, presents for acceptance or payment, or accepts, pays or receives payment of, such bill or note, or in any manner negotiates the same; or(c) with the like intent, practices or is concerned in any act, contrivance or device not specially provided for by this Act or any other law for the time being in force, shall be punishable with fine which may extend to one thousand rupees.

63. Penalty for breach of rule relating to sale of stamps and for unauthorized sale.-(a) Any person appointed to sell stamps who disobeys any rule made under section 74, and(b) any person not so appointed who sells or offers for sale any stamp (other than a l[ten naye paise or five naye paise] adhesive stamp),shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.

64. Institution and conduct of prosecutions.-(l) No prosecution in respect of any offence punishable under this Act or any Act hereby repealed, shall be instituted without the sanction of the Collector or such other officer as [State Government] generally, or the Collector specially, authorizes in that behalf.(2) The Chief Controlling Revenue-Authority, or any officer generally or specially authorized by it in this behalf, may stay any such prosecution or compound any such offence.(3) The amount of any such composition shall be recoverable in the manner provided by section 48.

65. Jurisdiction of Magistrates.-No Magistrate other than a Presidency Magistrate or a Magistrate whose powers are not less than those of a Magistrate of the second class, shall try any offence under this Act.66. Place of Trial.-Every such offence committed in respect of any instrument may be tried in any district or presidency-town in which such instrument is found, as well as in any district or presidency-town in which such offence might be tried under the Code of Criminal Procedure for the time being in force.

SUPPLEMENTAL PROVISIONS67. Books, etc., to be open to inspection.-Every public officer having in his custody any registers, books, records, papers, documents or proceedings, the inspection whereof may tend to secure any

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duty, or to prove or lead to the discovery of any fraud or omission in relation to any duty, shall at all reasonable times permit any person authorized in writing by the Collector to inspect for such purpose the registers, books, papers, documents and proceedings and to take such notes and extracts as he may deem necessary, ':Without fee or charge.

68. Powers to make rules relating to sale of stamps.-The [State Government] may make rules for regulating-(a) The supply and sale of stamps and stamped papers,(b) The persons by whom alone such sale is to be conducted, and(c) The duties and remuneration of such persons: Provided that such rules shall not restrict the sale of [ten naye paise or five naye paise] adhesive stamps.

69. Power to make rules generally to carry out Act:- The [State Government] may make rules to carry out generally the purposes of this Act, and may by such rules prescribe the fines, which shall in no case exceed five hundred rupees, to be incurred on breach thereof.

70. Publication of rules.-(1) All rules made under this Act shall be published in the Official Gazette.(2) All rules published as required by this section shall, upon such publication, have effect as if enacted by this Act.(3) Every rule made by the State Government under this Act shall be laid, as soon as may be after it is made, before the State Legislature.

70A. Delegation of certain powers:-The State Government, May, by notification in the Official Gazette], delegate-(a) All or any of the powers conferred on it by sections 2(9), 33(3) (b), 70(1), 74 and 78 to the Chief Controlling Revenue-Authority, and(b) All or any of the-powers conferred as the Chief Controlling Revenue-Authority by sections 45(1) (2), 56(1) and 70(2) to such subordinate Revenue-Authority as may be specified in the notification.

71. Saving as to court-fees.-Nothing in this Act contained shall be deemed to affect the duties chargeable under any enactment for the time being in force relating to court-fees.72 A. Saving as to certain stamps.-All stamps, in denominations of annas four or multiples thereof shall be deemed to be stamps of the value of twenty-five naye paise or, as the case may be, multiples thereof and shall, accordingly, be valid for all the purpose of this Act.78. Act to be translated, and sold cheaply: Every shall make provision for the sale of translations of this Act in the principal vernacular languages of the territories administered by it at a price not exceeding [twentyfive naye paise] per copy.

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LESSON-4:-THE CODE OF CIVIL PROCEDURE, 1908 Definitions

(1) Code:- includes rules;

(2) Decree:- means the formal expression of an adjudication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of thematters in controversy in the suit and may be either preliminary or final. It shall be deemed toinclude the rejection of a plaint and the determination of any question within section 144, but shall not include-(a) Any adjudication from which an appeal lies as an appeal from an order, or(b) Any order of dismissal for default.

(3) Decree-Holder:- means any person in whose favour a decree has been passed or an order capable of execution has been made

(4) District:- means the local limits of the jurisdiction of a principal Civil Court of original jurisdiction (hereinafter called a "District Court"), and includes the local limits of the ordinary original civil jurisdiction of a High Court(5) Foreign Court:- means a Court situate outside India and not established or continued by the authority of the Central Government

(6) Foreign Judgment:- means the judgment of a foreign Court

(7) Government Pleader:- includes any officer appointed by the State Government to perform all or any of the functions expressly imposed by this Code on the Government Pleader and also any pleader acting under the directions of the Government Pleader

(7A) High Court:- in relation to the Andaman and Nicobar Islands, means the High Court in Calcutta

(7B)India:- except in sections 1, 29, 43, 44, 44A, 78, 79, 82, 83 and 87A, means the territory of India excluding the State of Jammu and Kashmir

(8) Judge:-means the presiding officer of a Civil Court

(9) Judgment:- means the statement given by the judge of the grounds of a decree or order

(10) Judgment-Debtor:- means any person against whom a decree has been passed or an order capable of execution has been made

(11) Legal Representative:- means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued

(12)Means Profits:- of property means those profits which the person in wrongful possession of such property actually received or might with ordinary diligence have received therefrom, together with interest on such profits, but shall not include profits due to improvements made but the person in wrongful possession(13)Movable Property:- includes growing crops

(14) Order:- means the formal expression of any decision of a Civil Court which is not a decree

(15) Pleader:- means any person entitled to appear and plead for another in Court, and includes an advocate, a vakil and an attorney of a High Court(16) Prescribed:- means prescribed by rules:

(17) Public Officer:-means a person falling under any of the following descriptions, namely:-(a) Every Judge(b) Every member of an All-India Service(c) Every commissioned or gazetted officer in the military, naval or air forces of the Union while serving under the Government.

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(d) Every officer of a Court of Justice whose duty it is, as such officer, to investigate or report on any matter of law or fact, or to make, authenticate or keep any document, or to take charge or dispose of any property, or to execute any judicial process, or to administer any oath, or tointerpret, or to preserve order, in the court, and every person especially authorized by a Court of Justice to perform any of such duties(e) Every person who holds and office by virtue of which he is empowered to place or keep any person in confinement(f) Every officer of the Government whose duty it is, as such officer, to prevent offences to give information of offences, to bring offenders to justice, or to protect the public health, safety or convenience(g) Every officer whose duty it is, as such officer, to take, receive, keep or expend any property on behalf of the Government, or to make any survey, assessment or contract on behalf of the Government, or to execute any revenue process, or to investigate, or to report on, any matter affecting the pecuniary interests of the Government, or to make, authenticate or keep any document relating to the pecuniary interests of the Government, or to prevent the infraction of any law for the protection of the pecuniary interests of the Government; and(h) Every officer in the service or pay of the Government, or remunerated by fees or commission for the performance of any public duty

(18) Rules:- means rules and forms contained in the First Schedule or made under section 122 or section 125(19) Share In A Corporation:- shall be deemed to include stock, debenture stock, debentures or bonds; and(20) Signed:-, save in the case of a judgment or decree, includes stamped.

3. Subordination of Courts- For the purposes of this Code, the District Court is subordinate to the High Court, and every Civil Court of a grade inferior to that of a District Court and every Court of Small Causes is subordinate to the High Court and District Court.

4. Savings- (1) In the absence of any specific provision to the contrary, nothing in this Code shall be deemed to limit or otherwise affect any special or local law now in force or any special jurisdiction or power conferred, or any special form of procedure prescribed, by or under any other law for the time in force.(2) In particular and without prejudice to the generality of the proposition contained in sub-section(1) nothing in this Code shall be deemed to limit or otherwise affect any remedy which all and holder or landlord may have under any law for the time being in force for the recovery of rent of agricultural land from the produce of such land.

5. Application of the Code of Revenue Courts- (1) Where any Revenue Courts are governed by the provisions of this Code in those matters of procedure upon which any special enactment applicable to them is silent, the State Government may, by notification in the Official Gazette, declare that any portions of those provisions which are not expressly made applicable by this Code shall not apply to those Courts, or shall only apply to them with such modifications as the State Government may prescribe.(2) "Revenue Court" in sub-section (1) means a Court having jurisdiction under any local law to entertain suits or other proceedings relating to the rent, revenue or profits of land used for agricultural purposes, but does not include a Civil Court having original jurisdiction under this Code to try such suits or proceedings as being suits or proceedings of a civil nature.

6. Pecuniary jurisdiction- Save in so far as is otherwise expressly provided, nothing here in contained shall operate to give any Court jurisdiction over suits the amount or value of the subject-matter of which exceeds the pecuniary limits (if any) of its ordinary jurisdiction.

7. Provincial Small Cause Courts- The following provisions shall not extend to Courts constituted under the Provincial Small Cause Courts Act, 1887 (9 of 1887) or under the Berar Small Cause Courts Laws, 1905, or to Courts exercising the jurisdiction of a Court of Small Causes under the said Act or Law or to Courts in any part of India to which the said Act does not extend exercising a corresponding jurisdiction that is to say:-

(a) So much of the body of the Code as relates to-(i) Suits accepted from the cognizance of a Court of Small Causes;(ii) The execution of decrees in such suits;(iii) The execution of decrees against immovable property; and

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(b) The following sections, that is to say,-section 9, sections 91 and 92, sections 94 and 95 so far as they authorize or relate to-(i) Orders for the attachment of immovable property;(ii) Injunctions,(iii) The appointment of a receiver of immovable property, or(iv) The interlocutory orders referred to in clause (e) of section 94 and sections 96 to 112 and 115.

8. Presidency Small Cause Courts- Save as provided in sections 24, 38 to 41, 75, clauses (a), (b) and (c), 76, 77, 157 and 158, and by the Presidency Small Cause Courts Act, 1882, (15 of1882) the provisions in the body of this Code shall not extend to any suit or proceedings in any Court of Small Causes established in the towns of Calcutta, Madras and Bombay :Provided that -(1) The High Courts of Judicature at Fort William Madras and Bombay, as the case may be, may from time to time, by notifications in the Official Gazette, direct that any such provisions not inconsistent with the express provisions of the Presidency Small Cause Courts Act, 1882, (15 of1882) and with such modifications and adaptation as may be specified in the notification, shall extend to suits or proceedings or any class of suits or proceedings in such Court:(2) All rules heretofore made by any of the said High Courts under section 9 of the Presidency Small Cause Courts Act, 1882 (15 of 1882) shall be deemed to have been validly made. Gujarat- After the words Calcutta, Madras and Bombay the words "and in the City of Ahmadabad "shall be inserted.

SUITS IN GENERAL9. Courts to try all civil suits unless barred? The Courts shall (subject to the provisions herein contained) have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred.Explanation I: A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend entirely on the decision of questions as to religious rites or ceremonies.Explanation II: For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or whether or not such office is attached to a particular place.Maharashtra? After section 9 insert the following section 9A. "9A. where at the hearing of application relating to interim relief in a suit, objection to jurisdiction is taken such issue to be decided by the court as a preliminary issue? (1) Notwithstanding anything contained in this code or any other law for the time being in force, if at the hearing of any application for granting or setting aside an order granting any interim relief, whether by way of stay, injunction, appointment of a receiver or otherwise, made in any suit, on objection to jurisdiction of the court to entertain such suit is taken by any of the parties to the suit the court shall proceed to determine at the hearing of such application the issue as to the jurisdiction as a preliminary issue before granting for setting aside the order granting the interim relief. Any such application shall be heard and disposed of by the court as expeditiously as possible and shall not in any case be adjourned to the hearing of the suit.(2) Notwithstanding anything contained in sub-section (1), at the hearing of any such application the court may grant such interim relief as it may consider necessary, pending determination by it of the preliminary issue as to the jurisdiction".[Maharashtra Act No. 65 of 1977].

10. Stay of suit? No Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties, or between parties under whom they or any of them claim litigating under the same title where such suit is pending in the same or any other Court in India having jurisdiction to grant the relief claimed, or in any Court beyond the limits of India established or continued by the Central Government and having like jurisdiction, or before the Supreme Court.

11. Res judicata? No Court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such Court.Explanation I: The expression "former suit" shall denote a suit which has been decided prior to the suit in question whether or not it was instituted prior thereto.Explanation II: For the purposes of this section, the competence of a Court shall be determined irrespective of any provisions as to a right of appeal from the decision of such Court.Explanation III: The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.

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Explanation IV: Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation V: Any relief claimed in the plaint, which is not expressly granted by the decree, shall, for the purposes of this section, be deemed to have been refused.Explanation VI:Where persons litigate bona fide in respect of public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating.Explanation VII: The provisions of this section shall apply to a proceeding for the execution of a decree and reference in this section to any suit, issue or former suit shall be construed as references, respectively, to proceedings for the execution of the decree, question arising in such proceeding and a former proceeding for the execution of that decree.Explanation VIII:An issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in as subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised.

12. Bar to further suit? Where a plaintiff is precluded by rules from instituting a further suit in respect of any particular cause of action, he shall not be entitled to institute a suit in respect of such cause of action in any Court to which this Code applies.

13. When foreign judgment not conclusive? A foreign judgment shall be conclusive as to any matter thereby directly adjudicated upon between the same parties or between parties under whom they or any of them claim litigating under the same title except?(a) Where it has not been pronounced by a Court of competent jurisdiction;(b) Where it has not been given on the merits of the case;(c) Where it appears on the face of the proceedings to be founded on an incorrect view of international lower a refusal to recognise the law of India in cases in which such law is applicable;(d) Where the proceedings in which the judgment was obtained are opposed to natural justice;(e) Where it has been obtained by fraud;(f) Where it sustains a claim founded on a breach of any law in force in India.

14. Presumption as to foreign judgments? The Court shall presume upon the production of any document purporting to be a certified copy of a foreign judgment that such judgment was pronounced by a Court of competent jurisdiction, unless the contrary appears on the record; but such presumption may be displaced by proving want of jurisdiction. Place of suing15. Court in which suits to be instituted? Every suit shall be instituted in the Court of the lowest grade competent to try it.

16. Suits to be instituted where subject-matter situate? Subject to the pecuniary or other limitations prescribed by any law, suits?(a) For the recovery of immovable property with or without rent or profits,(b) For the partition of immovable property,(c) For foreclosure, sale or redemption in the case of a mortgage of or charge upon immovable property,(d) For the determination of any other right to or interest in immovable property,(e) For compensation for wrong to immovable property,(f) For the recovery of movable property actually under distrait or attachment, shall be instituted in the Court within the local limits of whose jurisdiction the property is situate: Provided that a suit to obtain relief respecting, or compensation for wrong to, immovable property held by or on behalf of the defendant, may where the relief sought can be entirely obtained through his personal obedience be instituted either in the Court within the local limits of whose jurisdiction the property is situate, or in the Court within the local limits of whose jurisdiction the defendant actually and voluntarily reside, or carries on business, or personally works for gain.

17. Suits for immovable property situate within jurisdiction of different Courts? Where a suit is to obtain relief respecting, or compensation for wrong to, immovable property situate within the jurisdiction of different Court, the suit my be instituted in any Court within the local limits of whose jurisdiction any portion of the property is situate: Provided that, in respect of the value of the subject matter of the suit, the entire claim is cognizable by such Court.

18. Place of institution of suit where local limits of jurisdiction of Courts are uncertain? (1) Where it is alleged to be uncertain within the local limits of the jurisdiction of which of two or more Courts any immovable property is situate, any one of those Courts may, if satisfied that there is ground for the alleged uncertainty, record a statement to that effect and thereupon proceed to entertain and

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dispose of any suit relating to that property, and its decree in the suit shall have the same effect as if the property were situate within the local limits of its jurisdiction : Provided that the suit is one with respect to which the Court is competent as regards the nature and value of the suit to exercise jurisdiction.(2) Where a statement has not been recorded under sub-section (1), and objection is taken before an Appellate or Revision Court that a decree or order in a suit relating to such property was made by a Court not having jurisdiction where the property is situate, the Appellate or Revisional Court shall not allow the objection unless in its opinion there was, at the time of the institution of the suit, no reasonable ground for uncertainty as to the Court having jurisdiction with respect thereto and there has been a consequent failure of justice.

19. Suits for compensation for wrongs to person or movable? Where a suit is for compensation for wrong done to the person or to movable property, if the wrong was done within the local limits of the jurisdiction of one Court and the defendant resides, or carries on business, or personally works for gain, within the local limits of the jurisdiction of another Court, the suit may be instituted at the option of the plaintiff in either of the said Courts.20. Other suits to be instituted where defendants reside or cause of action arises? Subject to the limitations aforesaid, every suit shall be instituted in Court within the local limits of whose jurisdiction?(a) The defendant, or each of the defendants where there are more than one, at the time of the commencement of the suit, actually and voluntarily resides, or carries on business, or personally works for gain; or(b) Any of the defendants, where there are more than one, at the time of the commencement of the suit actually and voluntarily resides, or carries on business, or personally works for gain, provided that in such case either the leave of the Court is given, or the defendants who do not reside, or carry on business, or personally work for gain, as aforesaid, acquiesce in such institution; or(c) The cause of action, wholly or in part, arises.

21. Objections to jurisdiction? (1)No objection as to the place of suing shall be allowed by any appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues or settled at or before such settlement, and unless there has been a consequent failure of justice.(2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice.(3) No objection as to the competence of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice.21A. Baron Suit to set aside decree on objection as to place of suing? No suit shall lie challenging the validity of a decree passed in a former suit between the same parties, or between the parties under whom they or any of them claim, litigating under the same title, on any ground based on an objection as to the place of suing.Explanation: The expression "former suit" means a suit which has been decided prior to the decision in the suit in which the validity of the decree is questioned, whether or not the previously decided suit was instituted prior to the suit in which the validity of such decree is questioned].

22. Power to transfer suits which may be instituted in more than one Court? Where a suit may be instituted in any one of two or more Courts and is instituted in one of such Courts, any defendant, after notice to the other parties, may, at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, apply to have the suit transferred to another Court, and the Court to which such application is made, after considering the objections of the other parties (if any), shall determine in which of the several Courts having jurisdiction the suit shall proceed.

25. Power of Supreme Court to transfer suits, etc.? (1) On the application of a party, and after notice to the parties, and after hearing such of them as desire to be heard, the Supreme Court may, at any stage, if satisfied that an order under this section is expedient for the ends of justice, direct that any suit, appeal or other proceeding be transferred from a High Court or other Civil Court in one State to a High Court or other Civil Court in any other State.(2) Every application under this section shall be made by a motion which shall be supported by an affidavit.

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(3) The Court to which such suit, appeal or other proceeding is transferred shall, subject to any special directions in the order of transfer, either retry it or proceed from the stage at which it was transferred to it.(4) In dismissing any application under this section, the Supreme Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum, not exceeding two thousand rupees, as it considers appropriate in the circumstances of the case.(5) The law applicable to any suit, appeal or other proceeding transferred under this section shall be the law which the Court in which the suit, appeal or other proceeding was originally instituted ought to have applied to such suit, appeal or proceeding.26. Institution of suits? Every suit shall be instituted by the presentation of a plaint or in such other manner as may be prescribed. Summons and Discovery27. Summons to defendants? Where a suit has been duly instituted, a summons may be issued to theDefendant to appear and answer the claim and may be served in manner prescribed.

28. Service of summons where defendant resides in another State? (1) A summons may be sent for service in another State to such Court and in such manner as may be prescribed by rules in force in that State.(2) The Court to which such summons is sent shall, upon receipt thereof, proceed as if it had been issued by such Court and shall then return the summons to the Court of issue together with the record (if any) of its proceedings with regard thereto.(3) Where the language of the summons sent for service in another State is different from the language of the record referred to in sub- section (2), a translation of the record,?(a) In Hindi, where the language of the Court issuing the summons is Hindi, or(b) In Hindi or English where the language of such record is other than Hindi or English, shall also be sent together with the record sent under that sub-section].

29. Service of foreign summonses? Summons and other processes issued by?(a) Any Civil or Revenue Court established in any part of India to which the provisions of this Code do not extent, or(b) Any Civil or Revenue Court established or continued by the authority of the Central Government outside India, or(c) Any other Civil or Revenue Court outside India to which the Central Government has, by notification in the Official Gazette, declared the provisions of this section to apply, may be sent to the Courts in the territories to which this Code extends, and served as if they were summonses issued by such Courts.

30. Power to order discovery and the like? Subject to such conditions and limitations as may be prescribed, the Court may, at any time, either of its own motion or on the application of any party,?(a) Make such orders as may be necessary or reasonable in all matters relating to the delivery and answering of interrogatories, the admission of documents and facts, and the discovery, inspection, production, impounding and return of documents or other material objects producible as evidence;(b) Issue summonses to persons whose attendance is required either to give evidence or to produce documents or such other objects as aforesaid;(c) Order any fact to be proved by affidavit.

31. Summons to witness? The provisions in sections 27, 28 and 29 shall apply to summonses to give evidence or to produce documents or other material objects.

32. Penalty for default? The Court may compel the attendance of any person to whom a summons has been issued under section 30 and for that purpose may?(a) Issue a warrant for his arrest;(b) Attach and sell his property;(c) Impose a fine upon him not exceeding five hundred rupees;(d) Order him to furnish security for his appearance and in default commit him to the civil prison. Judgment and decree

33. Judgment and decree? The Court, after the case has been heard, shall pronounce judgment, and on suchJudgment a decree shall follow. Interest

34. Interest? (1) Where and in so far as a decree is for the payment of money, the Court may, in the decree, order interest at such rate as the Court deems reasonable to be paid on the principal sum adjudged, from the

49 P.SATYANARAYANA


date of the suit to the date of the decree, in addition to any interest adjudged on such principal sum for any period prior to the institution of the suit, with further interest at such rate not exceeding six per cent, per annum as the Court deems reasonable on such principal sum from the date of the decree to the date of payment, or to such earlier date as the Court thinks fit :Provided that where the liability in relation to the sum so adjudged had arisen out of a commercial transaction, the rate of such further interest may exceed six per cent, per annum, but shall not exceed the contractual rate of interest or where there is no contractual rate, the rate at which moneys are lent or advanced by nationalized banks in relation to commercial transactions.Explanation I:In this sub-section, "nationalized bank" means a corresponding new bank as defined in the Banking Companies (Acquisition and Transfer of Undertakings) Act 1970 (5 of 1970).Explanation II: For the purposes of this section, a transaction is a commercial transaction, if it is connected with the industry, trade or business of the party incurring the liability.

(2) Where such a decree is silent with respect to the payment of further interest on such principal sum from the date of the decree to the date of payment or other earlier date, the Court shall be deemed to have refused such interest, and a separate suit therefore shall not lie. Costs35. Costs? (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of law for the time being in force, the costs of and incident to all suits shall be in the discretion of the Court, and the Court shall have full power to determine by whom or out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid. The fact that the Court has no jurisdiction to try the suit shall be no bar to the exercise of such powers.(2) Where the Court directs that any costs shall not follow the event, the Court shall state its reasons in writing

EXECUTION 36. Application to orders? The provisions of this Code relating to the execution of decree (including provisions relating to payment under a decree) shall, so far as they are applicable, be deemed to apply to the execution of orders (including payment an order).

37. Definition of Court which passed a decree? The expression "Court which passed a decree", or words to that effect, shall, in relation to the execution of decrees, unless there is anything repugnant in the subject or context, be deemed to include,?(a) Where the decree to be executed has been passed in the exercise of appellate jurisdiction, the Court of first instance, and(b) Where the Court of first instance has ceased to exist or to have jurisdiction to execute it, the Court which, if the suit wherein the decree was passed was instituted at the time of making the application for the execution of the decree, would have jurisdiction to try such suit.

38. Court by which decree may be executed: A decree may be executed either by the court which passed it, Or by the Court to which it is sent for execution.

39. Transfer of decree? (1) The Court which passed a decree may, on the application of the decree-holder, send it for execution to another Court [of competent jurisdiction]?(a) If the person against whom the decree is passed actually and voluntarily resides or carries on business, or personally works for gain, within the local limits of the jurisdiction of such other Court, or(b) If such person has not property with in the local limits of the jurisdiction of the Court which passed the decree sufficient to satisfy such decree and has property within the local limits of the jurisdiction of such other Court, or(c) If the decree directs the sale or delivery of immovable property situate outside the local limits of the jurisdiction of the Court which passed it, or(d) If the Court who passed the decree considers for any other reason, which it shall record in wiring, that the decree should be executed by such other Court.(2) The Court which passed the decree may of its own motion send it for execution to any subordinate Court of competent jurisdiction.(3) For the purposes of this section, a Court shall be deemed to be a Court of competent jurisdiction if, at the time of making the application for the transfer of decree to it, such Court would have jurisdiction to try the suit in which such decree was passed. Uttar Pradesh? Sub-section (3) of section 39 shall be substituted."(3) For the purpose of this section, a court shall be deemed to be a court of competent jurisdiction if the amount or value of the subject matter of the suit wherein the decree was passed does not exceed the pecuniary limits if any of its ordinary jurisdiction at the time of making the application for the transfer of decree to it, notwithstanding that it had otherwise no jurisdiction to try the suit".[U.P. Act No. 31 of 1978].

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40. Transfer of decree to Court in another State? Where a decree is sent for execution in another State, it shall be sent to such Court and executed in such manner as may be prescribed by rules in force in that State.41. Result of execution proceedings to be certified? The Court to which a decree is sent for execution shall certify to the Court which passed it the fact of such execution, or where the former Court fails to execute the same the circumstances attending such failure.42. Powers of Court in executing transferred decree? (1) The Court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the execution of the decree shall be punishable by such Court in the same manner as if it had passed the decree. And its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the Court under that sub-section shall include the following powers of the Court passed the decree, namely:?(a) Power to send the decree for execution to another Court under section 39;(b) Power to execute the decree against the legal representative of the deceased judgment-debtor under Section 50;(c) Power to order attachment of a decree.(3) A Court passing an order in exercise of the powers specified in sub-section (2) shall send a copy thereof to the Court which passed the decree.(4) Nothing in this section shall be deemed to confer on the Courts to which a decree is sent for execution any of the following powers, namely?(a) Power to order execution at the instance of the transferee of the decree;(b) In the case of a decree passed against a firm, power to grant leave to execute such decree against any person other than such a person as is referred to in clause (b), or clause (c), of sub-rule (1) of rule 50 of Order XXI.]Uttar Pradesh? Section 42 shall be substituted by following."

42. Power of Court in executing transferred decree? (1) The court executing a decree sent to it shall have the same powers in executing such decree as if it had been passed by itself. All persons disobeying or obstructing the decree shall be punishable by such court in the same manner as if it had passed the decree, and its order in executing such decree shall be subject to the same rules in respect of appeal as if the decree had been passed by itself.(2) Without prejudice to the generality of the provisions of sub-section (1) the powers of the court under that sub-section shall include the following powers of the court which passed the decree, namely?(a) Power to send the decree for execution to another court under section 39.(b) Power to execute the decree against the legal representative of the deceased judgment debtor under Section 50.(c) Power to order attachment of a decree.(d) Power to decide any question relating to the bar of limitation to the executability of the decree.(e) Power to record payment or adjustment under Rule 2 of order XXI.(f) Power to order stay of execution under Rule 29 Order XXI,(g) In the case of a decree passed against a firm power to grant leave to execute such decree against any person other than a person as is referred to in clause (b) or clause (c) of sub-rule (1) of Rule 50 of OrderXXI.(3) A court passing an order in exercise of the powers specified in sub-section (2) shall send a copy there of to the court which passed the decree.(4) Nothing in this section shall be deemed to confer on the court to which a decree is sent for execution, the power to order execution at the instance of the transfer of a decree"[U.P. Act No. 14 of 1970].

43. Execution of decrees passed by Civil Courts in places to which this Code does not extend? Any decree passed by any Civil Court established in any part of India to which the provisions of this Code do not extend, or by any Court established or continued by the authority of the Central Government outside India, may, if it cannot be executed within the jurisdiction of the Court by which it was passed, be executed in the manner herein provided within the jurisdiction of any Court in the territories to which this Code extends.44. Execution of decrees passed by Revenue Court in places to which this Code does not extend? The State Government may, by notification in the Official Gazette, declare that the decrees of any Revenue Court in any part of India to which the provisions of this Code do not extend or any class of such decrees, may be executed in the State as if they had been passed by Courts in that State.

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44A. Execution of decrees passed by Courts in reciprocating territory? (1) Where a certified copy of decree of any of the superior Courts of any reciprocating territory has been filed in a District Court, the decree may be executed in India as if it had been passed by the District Court.(2) Together with the certified copy of the decree shall be filed a certificate from such superior Court stating the extent, if any, to which the decree has been satisfied or adjusted and such certificate shall, for the purposes of proceedings under this section, be conclusive proof of the extent of such satisfaction or adjustment.(3) The provisions of section 47 shall as from the filing of the certified copy of the decree apply to the proceedings of a District Court executing a decree under this section, and the District Court shall refuse execution of any such decree, if it is shown to the satisfaction of the Court that the decree falls within any of the exceptions specified in clauses (a) to (f) of section 13.

45. Execution of decrees outside India? So much of the foregoing sections of this Part as empower a Court to send a decree for execution to another Court shall be construed as empowering a Court in any State to send a decree for execution to any Court established by the authority of the Central Government outside India to which the State Government has by notification in the Official Gazette declared this section to apply.Pondicherry? After section 45 insert the following:"45-A. Execution of decrees etc. passed or made before the Commencement of the Code in Pondicherry? Any Judgment, decree or order passed or made before the Commencement of this Code by any Civil Court in the Union Territory of Pondicherry shall for the purpose of execution be deemed to have been passed or made under this Code. Provided that nothing contained in this section shall be construed as extending the period of limitation to which any proceeding in respect of such judgment decree or order may be subject."[Act No. 26 of 1968].

46. Precepts? (1) Upon the application of the decree-holder the Court which passed the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree: Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made anthem decree-holder has applied for an order for the sale of such property. Questions to be determined by Court executing decree

47. Questions to be determined by the Court executing decree? (1) All questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court.Explanation I: For the purposes of this section, a plaintiff whose suit has been dismissed and a defendant against whom a suit has been dismissed are parties to the suit.Explanation II:(a) For the purposes of this section, a purchaser of property at a sale in execution of a decree shall be deemed to be a party to the suit in which the decree is passed; and(b) All questions relating to the delivery of possession of such property to such purchaser or his representative shall be deemed to be questions relating to the execution, discharge or satisfaction of the decree within the meaning of this section. Limit of time for execution

48. Execution barred in certain cases? Rep. by the limitation Act, 1963 (36 of 1963), s. 28 (with effect from the 1st January, 1964) Transferees and legal representatives49. Transferee? Every transferee of a decree shall hold the same subject to the equities (if any) which the judgment-debtor might have enforced against the original decree-holder.

50. Legal representative? (1) Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

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(2) Where the decree is executed against such legal representative, he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Court executing the decree may, of its own motion or on the application of the decree-holder, compel such legal representative to produce such accounts as it thinks fit. Procedure in execution

51. Powers of Court to enforce execution? Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree?(a) By delivery of any property specifically decreed;(b) By attachment and sale or by the sale without attachment of any property;(c) By arrest and detention in prison [for such period not exceeding the period specified in section

58,where arrest and detention is permissible under that section];(d) By appointing a receiver; or(e) In such other manner as the nature of the relief granted may require: Provided that, where the

decree is for the payment of money, execution by detention in prison shall not bordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied?

(a) That the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree?(i) Is likely to abscond or leave the local limits of the jurisdiction of the Court, or(ii) Has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or(b) That the judgment-debtor has, or has had since the date of the decree, the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same, or(c) That the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account.

52. Enforcement of decree against legal representative? (1) Where a decree is passed against a party as the legal representative of a deceased person, and the decree is for the payment of money out of the property of the deceased, it may be executed by the attachment and sale of any such property.(2) Where no such property remains in the possession of the judgment-debtor and he fails to satisfy the Court that he has duly applied such property of the deceased as is proved to have come into his possession, the decree may be executed against the judgment-debtor to the extent of the property in respect of which he has failed so to satisfy the Court in the same manner as if the decree had been against him personally.

53. Liability of ancestral property? For the purposes of section 50 and section 52, property in the hands of as on or other descendant which is liable under Hindu law for the payment of the debt of a deceased ancestor, in respect of which a decree has been passed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative.54. Partition of estate or separation of share? Where the decree is for the partition of an undivided estate assessed to the payment of revenue to the Government, or for the separate possession of a share of such an estate, the partition of the estate or the separation of the share shall be made by the Collector or any gazetted subordinate of the Collector deputed by him in this behalf, in accordance with the law (if any) for the time being in force relating to the partition, or the separate possession shares, of such estates. Arrest and detention

55. Arrest and detention? (1) A judgment-debtor may be arrested in execution of a decree at any hour and on any day, and shall, as soon as practicable, be brought before the Court, and his detention may be in the civil prison of the district in which the Court ordering the detention is situate, or, where such civil prison does not afford suitable accommodation, in any other place which the State Government may appoint for the detention of persons ordered by the Courts of such district to be detained: Provided, Firstly, that, for the purpose of making an arrest under this section, no dwelling-house shall be entered after sunset and before sunrise: Provided, Secondly, that no outer door of a dwelling-house shall be broken open unless such dwelling house is in the occupancy of the judgment-debtor and he refuses or in any way prevents access thereto, but when the officer authorised to make the arrest has duly gained access to any dwelling-house, he may break open the door of any room in which he has reason to believe the judgment-debtor is to be found: Provided,

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Thirdly, that, if the room is in the actual occupancy of a woman who is not the judgment-debtor and who according to the customs of the country does not appear in public, the officer authorised to make the arrest shall give notice to her that she is at liberty to withdraw, and, after allowing a reasonable time for her to withdraw and giving her reasonable facility for withdrawing, may enter the room for the purpose of making the arrest: Provided,Fourthly, that, where the decree in execution of which a judgment-debtor is arrested, is a decree for the payment of money and the judgment-debtor pays the amount of the decree and the costs of the arrest to the officer arresting him, such officer shall at once release him.

(2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf.

(3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged, if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force.

(4) Where a judgment-debtor express his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may either direct the security to be realised or commit him to the civil prison in execution of the decree.

56. Prohibition of arrest or detention of women in execution of decree for money? Notwithstanding anything in this Part, the Court shall not order the arrest or detention in the civil prison of a woman in execution of a decree for the payment of money.57. Subsistence allowance? The State Government may fix scales, graduated according to rank, race and nationality, of monthly allowances payable for the subsistence of judgment-debtors.

57. Detention and release? (1) Every person detained in the civil prison in execution of a decree shall be so detained,?(a) Where the decree is for the payment of a sum of money exceeding [one thousand rupees, for a period not exceeding three months, and(b) where the decree is for the payment of a sum of money exceeding five hundred rupees, but not exceeding one thousand rupees, for a period not exceeding six weeks :Provided that he shall be released from such detention before the expiration of the[said period of detention](i) On the amount mentioned in the warrant for his detention being paid to the officer in charge of the civil Prison, or(ii) On the decree against him being otherwise fully satisfied, or(iii) On the request of the person on whose application he has been so detained, or(iv) On the omission by the person, on whose application he has been so detained, to pay subsistence allowance: Provided, also, that he shall not be released from such detention under clause (ii) or clause (iii), without the Order of the Court.(1A) For the removal of doubts, it is hereby declared that no order for detention of the judgment debtor in civil prison in execution of a decree for the payment of money shall be made, where the total amount of the decree does not exceed five hundred rupees.(2) A judgment-debtor released from detention under this section shall not merely by reason of his release be discharged from his debt, but he shall not be liable to be re-arrested under the decree in execution of which he was detained in the civil prison.

58. Release on ground of illness? (1) At any time after a warrant for the arrest of a judgment-debtor has been issued the Court may cancel it on ground of his serious illness.(2) Where a judgment-debtor has been arrested, the Court may release him if, in its opinion, he is not in a fit state of health to be detained in the civil prison.(3) Where a judgment-debtor has been committed to the civil prison, he may be released therefrom?(a) By the State Government, on the ground of the existence of any infectious or contagious disease, or(b) By the committing Court, or any Court to which that Court is subordinate, on the ground of his suffering from any serious illness.

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(4) A judgment-debtor released under this section may be re-arrested, but the period of his detention in the civil prison shall not in the aggregate exceed that prescribed by section 58.Attachment

SUITS IN PARTICULAR CASES59. Suits by or against Government? In a suit by or against the Government, the authority to be named as plaintiff or defendant, as the case may be, shall be?(a) In the case of a suit by or against the Central Government, the Union of India, and(b) In the case of a suit by or against a State Government, the State.

60. Notice? (1)Save as otherwise provided in sub-section (2), no suits shall be instituted against the Government (including the Government of the State of Jammu & Kashmir) or against a public officer in respect of any act purporting to be done by such officer in his official capacity, until the expiration of two months next after notice in writing has been delivered to, or left at the office of?(a) In the case of a suit against the Central Government, except where it relates to a railway, a Secretary to that Government;(b) In the case of a suit against the Central Government where it relates to railway, the General Manager of that railway;(bb) In the case of a suit against the Government of the State of Jammu and Kashmir the Chief Secretary to that Government or any other officer authorised by that Government in this behalf;(c) In the case of a suit against any other State Government, a Secretary to that Government or the Collector of the district and, in the case of a public officer, delivered to him or left at this office, stating the cause of action, the name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a statement that such notice has been so delivered or left.

(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State of Jammu & Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section (1); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the Government or public officer, as the case may be, a reasonable opportunity of showing cause in respect of the relief prayed for in the suit :Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice referred to in sub-section (1), if in such notice?(a) The name, description and the residence of the plaintiff had been so given as to enable the appropriate authority or the public officer to identify the person serving the notice and such notice had been delivered or left at the office of the appropriate authority specified in sub-section (1), and(b) The cause of action and the relief claimed by the plaintiff had been substantially indicated. Madhya Pradesh? (i) After sub-section (3) of Section 80 the following inserted:

(4) where in a suit or proceeding referred to in Rule 3B of Order 1, the state is joined as a defendant or non applicant or where the Court orders joinder of the State as defendant or non applicant in exercise of powers under Rule 10(2) of order 1 such suit or proceeding shall not be dismissed by reasons of Omission of the plaintiff or applicant to issue notice under sub-section (1)" (ii) In sub-section (1) of section 80 for the words "sub-section (2)" substitute "sub-section (2) or (4)".[M.P. Act No. 29 of 1948].

61. Exemption from arrest and personal appearance? In a suit instituted against a public officer in respect of any act purporting to be done by him in his official capacity?(a) The defendant shall not be liable to arrest nor his property to attachment otherwise than in execution of a decree, and(b) Where the Court is satisfied that the defendant cannot absent himself from his duty without detriment to the public service, it shall exempt him from appearing in person.

62. Execution of decree?(1) Where, in a suit by or against the Government or by or against a public officer in respect of any act purporting to be done him in his official capacity, a decree is passed against the Union of India or a State or, as the case may be, the public officer, such decree shall not be executed except in accordance with the provisions of sub-section (2)(2) Execution shall not be issued on any such decree unless it remains unsatisfied for the period of three months computed from the date of such decree

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(3) The provisions of sub-sections (1) and (2) shall apply in relation to an order or award as they apply in relation to a decree, if the order or award?(a) is passed or made against the Union of India or a State or a public officer in respect of any such act as aforesaid, whether by a Court or by any other authority; and(b) is capable of being executed under the provisions of this code or of any other law for the time being in force as if it were a decree .Suits by Aliens and by or against Foreign Rulers, Ambassadors and Envoys

63. When aliens may sue? Alien enemies residing in India with the permission of the Central Government, and alien friends, may sue in any Court otherwise competent to try the suit, as if they were citizens of India, but alien enemies residing in India without such permission, or residing in a foreign country, shall not sue in any such court.Explanation: Every person residing in a foreign country, the Government of which is at war with India and carrying on business in that country without a licence in that behalf granted by the Central Government, shall, for the purpose of this section, be deemed to be an alien enemy residing in a foreign country.

64. When foreign State may sue? A foreign State may sue in any competent Court: Provided that the object of the suit is to enforce a private right vested in the Ruler of such State or in any officer of such State in his public capacity.

65. Persons specially appointed by Government to prosecute or defend on behalf of foreign Rulers? (1) The Central Government may, at the request of the Ruler of a foreign State or at the request of any person competent in the opinion of the Central Government to act on behalf of such Ruler, by order, appoint any persons to prosecute or defend any suit on behalf of such Ruler, and any persons so appointed shall be deemed to be the recognized agents by whom appearances, acts and applications under this Code may be made or done on behalf of such Ruler.(2) An appointment under this section may be made for the purpose of a specified suit or of several specified suits, or for the purpose of all such suits as it may from time to time be necessary to prosecute or defend on behalf of such Ruler.(3) A person appointed under this section may authorise or appoint any other persons to make appearances and applications and do acts in any such suit or suits as if he were himself a party thereto.

APPEALS66. Appeal from original decree? (1) Save where otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie from every decree passed by any Court exercising original jurisdiction the Court authorized to hear appeals from the decisions of such Court.(2) An appeal may lie from an original decree passed ex parte.(3) No appeal shall lie from a decree passed by the Court with the consent of parties.(4) No appeal shall lie, except on a question of law, from a decree in any suit of the nature cognizable by Courts of Small Cause, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees.]67. Appeal from final decree where no appeal from preliminary decree? Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from dispating its correctness in any appeal with may be preferred from the final decree.

68. Decision where appeal heard by two or more Judges? (1) Where an appeal is heard by a Bench of two or more Judges, the appeal shall be decided in accordance with the opinion of such Judges or of the majority (if any) of such Judges.(2) Where there is no such majority which concurs in a judgment varying or reversing the decree appealed from, such decree shall be confirmed :Provided that where the Bench hearing the appeal is [78][composed of two or other even number of Judges belonging to a Court consisting of more Judges than those constituting the Bench] and the Judges composing the Bench differ in opinion on a point of law, they may state the point of law upon which they differ and the appeal shall then be heard upon that point only by one or more of the other Judges, and such point shall be decided according to the opinion of the majority (if any) of the Judges who have heard the appeal including those who first heard it.(3) Nothing in this section shall be deemed to alter or otherwise affect any provision of the letters patent of any High Court.69. No decree to be reversed or modified for error or irregularity not affecting merits or jurisdiction? No decree shall be reversed or substantially varied, nor shall any case be remanded in

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appeal on account of any misjoinder [79][or non-joinder] of parties or causes of action or any error, defect or irregularity in any proceedings in the suit, not affecting the merits of the case or the jurisdiction of the Court

70. Second appeal? (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.(2) An appeal may lie under this section from an appellate decree passed ex parte.(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law ,not formulated by it, if it is satisfied that the case involves such question.

70A. No further appeal in certain cases? Notwithstanding anything contained in any Letters Patent for any High Court or in any other instrument having the force of law or in any other law for the time being in force, where any appeal from an appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment, decision or order or such single Judge in such appeal or from any decree passed in such appeal.71. Second appeal on no other grounds: No second appeal shall lie except on the ground mentioned in section 100.72. No second appeal in certain suits? No second appeal shall lie in any suit of the nature cognizable by Courts of Small Causes, when the amount or value of the subject-matter of the original suit does not exceed three thousand rupees73. Power of High Court to determine issues of fact? In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal?(a) Which has not been determined by the lower Appellate Court or both by the Court of first instance and the lower Appellate Court, or(b) Which has been wrongly determined by such Court or Courts reason of a decision on such question of law as is referred to in section 100.Appeals from orders

74. Orders from which appeal lies? (1) An appeal shall lie from the following orders, and save as otherwise expressly provided in the body of this Code or by any law for the time being in force, from no other orders:?[Clauses (a) to (f) omitted](ff) an order under section 35A;(ffa) an order under section 91 or section 92 refusing leave to institute a suit of the nature referred to in section 91 or section 92, as the case may be;(g) An order under section 95;(h) An order under any of the provisions of this Code imposing a fine or directing the arrest or detention in the civil prison of an person except where such arrest or detention is in execution of a decree;(i) Any order made under rules from which an appeal is expressly allowed by rules; Provided that not appeal shall lie against any order specified in clause (ff) save on the ground that no order, or an order for the payment of a less amount, ought to have been made.(2) No appeal shall lie from any order passed in appeal under this section.

75. Other orders? (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction; but, where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as ground of objection in the memorandum of appeal.(2) Notwithstanding anything contained in sub-section (1), where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.76. What Courts to hear appeals? Where an appeal from any order is allowed it shall lie to the Court to whom an appeal would lie from the decree in the suit in which such order was made, or where such order is made by a Court (not being a High Court) in the exercise of appellate jurisdiction, then to the High Court. General provisions relating to appeals

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77. Powers of Appellate Court? (1) Subject to such conditions and limitations as may be prescribed, an Appellate Court shall have power?(a) To determine a case finally;(b) To remand a case;(c) To frame issues and refer them for trial;(d) To take additional evidence or to require such evidence to be taken.(2) Subject as aforesaid, the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein.

78. Procedure in appeals from appellate decrees and orders? The provisions of this Part relating to appeals from original decree shall, so far as may be, apply to appeals?(a) From appellate decrees, and(b) From orders made under this Code or under any special or local law in which a different procedure is not provided. Appeals to the Supreme Court

79. When appeals lie to the Supreme Court? Subject to the provisions in Chapter IV of Part V of The Constitution and such rules as may, from time to time, be made by the Supreme Court Regarding appeals from the Courts of India, and to the provisions hereinafter contained, an appeal shall lie to the Supreme Court from any judgment, decree or final order in a civil proceeding of a High Court, if the High Court certifies?(i) That the case involves a substantial question of law of general importance; and(ii) That in the opinion of the High Court the said question needs to be decided by the Supreme Court.

80. Savings? (1) Nothing contained in this Code shall be deemed?(a) To affect the powers of the Supreme Court under article 136 or any other provision of the Constitution, or(b) To interfere with any rules made by the Supreme Court, and for the time being in force, for the presentation of appeals to that Court, or their conduct before that Court.(2) Nothing herein contained applies to any matter of criminal or admiralty or vice-admiralty jurisdiction or to appeals from orders and decrees of Prize Courts.

REFERENCE, REVIEW AND REVISION

81. Reference to High Court? Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit :Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, both as not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons there for, and refer the same for the opinion of the High Court.

82. Review? Subject as aforesaid, any person considering himself aggrieved?(a) By a decree or order from which an appeal is allowed by this Code, but from which no appeal has been preferred,(b) By a decree or order from which no appeal is allowed by this Court, or(c) By a decision on a reference from a Court of Small Causes, may apply for a review of judgment to the Court which passed the decree or made the order, and the Court may make such order thereon as it thinks fit.

83. Revision? (1) The High Court may call for the record of an case which has been decided by any Court subordinate to such High Court and in which no appeal lies thereto, and if such subordinate Court appears?(a) To have exercised a jurisdiction not vested in it by law, or(b) To have failed to exercise a jurisdiction so vested, or(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit : Provided that the High Court shall no, under this

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section, vary or reverse any order made, or any order deciding an issue, in the course of a suit or other proceeding, except where?(a) The order, if it had been made in favour of the party applying for revision, would have finally disposed of the suit or other proceedings, or(b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.](2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any Court subordinate thereto.(a) To have exercised a jurisdiction not vested in it by law; or(b) To have failed to exercise a jurisdiction so vested; or(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court may make such order in the case as it thinks fit; Provided that the High Court shall not, under this section, vary or reverse any order made or any order deciding an issue, in the course of a suit or other proceedings except where:?(a) The order, if it had been made in favour of the party applying for the revision, would have finally disposed of the suit or proceeding; or(b) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.(2) The High Court shall not, under this section, vary or reverse any decree or order against which an appeal lies either to the High Court or to any court subordinate thereto.

84. Revision.? The High Court, in cases arising out of original suits or other proceedings of the value exceeding one lakh rupees, and the District Court, in any other case, including a case arising out of an original suit or other proceedings instituted before the commencement of the Code of Civil Procedure (Orissa Amendment) Act, 1991, may call for the record of any case which has been decided by any Court subordinate to the High Court or the District Court, as the case may be, and in which no appeal lies thereto, and if such subordinate Court appears?(a) To have exercised a jurisdiction not vested in it by law; or(b) To have failed to exercise a jurisdiction so vested; or(c) To have acted in the exercise of its jurisdiction illegally or with material irregularity, the High Court or the District Court, as the case may be, may make such order in the case as it thinks fit; Provided that in respect of cases arising out of original suits or other proceedings of any valuation decided by the District Court, the High Court alone shall be competent to make an order under this section :Provided further that the High Court or the District Court shall not, under this section, vary or reverse any order, including an order deciding an issue, made in the course of a suit or other proceedings, except where,?(i) The order, if so varied or reversed, would finally dispose of the suit or other proceedings; or(ii) The order, if allowed to stand, would occasion a failure of justice or cause irreparable injury to the party against whom it was made.

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LESSON-5:- CODE OF CRIMINAL PROCEDURE, 1973Definitions:- (a) Bailable offence:- means an offence which is shown as bailable in the First Schedule, or which is

made bailable by any other law for the time being in force; and "non-bailable offence" means any other offence;

(b) Charge:- includes any head of charge when the charge contains more heads than one;

(c) Cognizable Offence:- means an offence for which, and "cognizable case" means a case in which, a police officer may, in accordance with the First Schedule or under any other law for the time being in force, arrest without warrant;

(d) Complaint:- means any allegation made orally or in writing to a Magistrate, with a view to his taking action under this Code that some person, whether known or unknown, has committed an offence, but does not include a police report. Explanation.- A report made by a police officer in a case which discloses, after investigation, the commission of a non-cognizable offence shall be deemed to be a complaint; and the police officer by whom such report is made shall be deemed to be the complainant;

(e) High Court:- - (i) in relation to any State, the High Court for that State; (ii) in relation to a Union territory to which the jurisdiction of the High Court for a State has been extended by law, that High Court; (iii) in relation to any other Union territory, the highest Court of criminal appeal for that territory other than the Supreme Court of India;

(f) Indian: - means the territories to which this Code extends;

(g) Inquiry:-means every inquiry, other than a trial, conducted under this Code by a Magistrate or Court;

(h) Investigation:- includes all the proceedings under this Code for the collection of evidence conducted by a police officer or by any person (other than a Magistrate) who is authorised by a Magistrate in this behalf;

(i) Judicial Proceeding:- includes any proceeding in the course of which evidence is or may be legally taken on oath;

(j) Local Jurisdiction:- in relation to a Court or Magistrate, means the local area within which the Court or Magistrate may exercise all or any of its or his powers under this Code;

(k) Metropolitan Area:- means the area declared, or deemed to be declared, under section 8, to be a metropolitan area;

(l) Non-Cognizable Offence:- means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant;

(m)Notification:- means a notification published in the Official Gazette;

(n) Offence:- means any act or omission made punishable by any law for the time being in force and includes any act in respect of which a complaint may be made under section 20 of the Cattle-trespass Act, 1871( 1 of 1871);

(o) Officer In Charge Of A Police Station:- includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present;

(p) Place:- includes a house, building, tent, vehicle and vessel;

(q) Pleader:- when used with reference to any proceeding in any Court, means a person authorised by or under any law for the time being in force, to practise in such Court, and includes any other person appointed with the permission of the Court to act in such proceeding;

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(r) Police Report:-means a report forwarded by a police officer to a Magistrate under sub-section (2) of section 173;

(s) Police Report:-means a report forwarded by a police officer or especially by the State Government, to be a police station, and includes any local area specified by the State Government in this behalf

(t) Prescribed:- means prescribed by rules made under this Code;

(u) Public Prosecutor:-means any person appointed under section 24, and includes any person acting under the directions of a Public Prosecutor;

(v) Sub-Division:- means a sub-division of a district;

(w) Summons-Case: - means a case relating to an offence, and not being a warrant-case;

(x) Warrant-Case: - means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years;

3. Construction of references-

(1) In this Code (a) any reference, without any qualifying words, to a Magistrate, shall be construed, unless the context otherwise requires, -

(i) In relation to an area outside a metropolitan area, as a reference to a Judicial Magistrate; (ii) In relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (b) Any reference to a Magistrate of the second class shall, in relation to an area outside a metropolitan area, be construed as a reference to a Judicial Magistrate of the second class, and, in relation to a metropolitan area, as a reference to a Metropolitan Magistrate; (c) Any reference to a Magistrate of the first class shall, - (i) In relation to a metropolitan area, be construed as a reference to a Metropolitan Magistrate exercising jurisdiction in that area, (ii) In relation to any other area, be construed as a reference to a Judicial Magistrate of the first class exercising jurisdiction in that area; (d) Any reference to the Chief Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Chief Metropolitan Magistrate exercising jurisdiction in that area.

(2) In this Code, unless the context otherwise requires, any reference to the Court of a Judicial Magistrate shall, in relation to a metropolitan area, be construed as a reference to the Court of the Metropolitan Magistrate for that area. (3) Unless the context otherwise requires, any reference in any enactment passed before the commencement of this Code, - (a) To a Magistrate of the first class, shall be construed as a reference to a Judicial Magistrate of the first class; (b) To a Magistrate of the second class or of the third class, shall be construed as a reference to a Judicial Magistrate of the second class; (c) To a Presidency Magistrate or Chief Presidency Magistrate, shall be construed as a reference, respectively, to a Metropolitan Magistrate or the Chief Metropolitan Magistrate; (d) To any area which is included in a metropolitan area, as a reference to such metropolitan area, and any reference to a Magistrate of the first class or of the second class in relation to such area, shall be construed as reference to the Metropolitan Magistrate exercising jurisdiction in such area

(4) Where, under any law, other than this Code, the function exercisable by a Magistrate relate to matters- (a) Which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) Which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of a licence, sanctioning a prosecution or withdrawing from a prosecution, they shall, subject as aforesaid, be exercisable by an Executive Magistrate

4. Trial of offences under the Indian Penal Code and other laws.- (1) All offences under the Indian Penal Code (45 of 1860) shall be investigated, inquired into, tried, and otherwise dealt with according to the provisions hereinafter contained.

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(2) All offences under any other law shall be investigated, inquired into, tried, and otherwise dealt with according to the same provisions, but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences 5.Saving.- Nothing contained in this Code shall, in the absence of a specific provision to the contrary, affect any special or local law for the time being in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed, by any other law for the time being in force

CONSTITUTION OF CRIMINAL COURTS AND OFFICES6.Classes of Criminal Courts.- Besides the High Courts and the Courts constituted under any law, other than this Code, there shall be, in every State, the following classes of Criminal Courts, namely:- (i) Courts of Session; (ii) Judicial Magistrates of the first class and, in any metropolitan area, Metropolitan Magistrates;(iii) Judicial Magistrates of the second class; and(iv) Executive Magistrates.

7. Territorial divisions.- (1) Every State shall be a session’s division or shall consist of session’s divisions; and every sessions division shall, for the purposes of this Code, be a district or consist of districts: Provided that every metropolitan area shall, for the said purposes, be a separate sessions division and district. (2) The State Government may, after consultation with the High Court, alter the limits or the number of such divisions and districts. (3) The State Government may, after consultation with the High Court, divide any district into sub-divisions and may alter the limits or the number of such sub-divisions. (4) The session’s divisions, districts and sub-divisions existing in a State at the commencement of this Code, shall be deemed to have been formed under this section

8. Public to give information of certain offences.- (1) Every person, aware of the commission of , or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code,(45 of 1860) namely:- (i) Sections 121 to 126, both inclusive, and section 130 (that is to say, offences against the State specified in Chapter VI of the said Code); (ii) Sections 143, 144, 145, 147 and 148 (that is to say, offences against the public tranquillity specified in Chapter VIII of the said Code); (iii) Sections 161 to 165A, both inclusive (that is to say, offences relating to illegal gratification); (iv) Sections 272 to 278, both inclusive (that is to say, offences relating to adulteration of food and drugs, etc.); (v) Sections 302, 303 and 304 (that is to say, offences affecting life); (vi) Section 382 (that is to say, offence of theft after preparation made for causing death, hurt or restraint in order to the committing of the theft); (vii) sections 392 to 399, both inclusive, and section 402 (that is to say, offences of robbery and dacoity); (viii) Section 409 (that is to say, offence relating to criminal breach of trust by public servant, etc.); (ix) Sections 431 to 439, both inclusive (that is to say, offences of mischief against property); (x) Sections 449 and 450 (that is to say, offence of house-trespass); (xi) Sections 456 to 460, both inclusive (that is to say, offences of lurking house-trespass); and (xii) Sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes), shall, in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or police officer of such commission or intention. (2) For the purposes of this section, the term "offence" includes any act committed at any place out of India which would constitute an offence if committed in India.

ARREST OF PERSONS9. When police may arrest without warrant.- (1) Any police officer may without an order from a Magistrate and without a warrant, arrest any person- (a) Who has been concerned in any cognizable offence, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been so concerned; or (b) Who has in his possession without lawful excuse, the burden of proving which excuse shall lie on such person, any implement of house-breaking; or (c) Who has been proclaimed as an offender either under this Code or by order of the State Government; or (d) In whose possession anything is found which may reasonably be suspected to be stolen property and who may reasonably be suspected of having committed an offence with reference to such thing; or (e) Who obstructs a police officer while in the execution of his duty, or who has escaped, or attempts to escape, from lawful custody; or

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(f) Who is reasonably suspected of being a deserter from any of the Armed Forces of the Union; or (g) Who has been concerned in, or against whom a reasonable complaint has been made, or credible information has been received, or a reasonable suspicion exists, of his having been concerned in, any act committed at any place out of India which, if committed in India, would have been punishable as an offence, and for which he is, under any law relating to extradition, or otherwise, liable to be apprehended or detained in custody in India; or (h) Who, being a released convict, commits a breach of any rule made under sub-section (5) of section 356; or (I) for whose arrest any requisition, whether written or oral, has been received from another police officer, provided that the requisition specifies the person to be arrested and the offence or other cause for which the arrest is to be made and it appears therefrom that the person might lawfully be arrested without a warrant by the officer who issued the requisition. (2) Any officer in charge of a police station may, in like manner, arrest or cause to be arrested any person, belonging to one or more of the categories of persons specified in section 109 or section 110.

10. Arrest on refusal to give name and residence.- (1) When any person who, in the presence of a police officer, has committed or has been accused of committing a non-cognizable offence refuses, on demand of such officer, to give his name and residence or gives a name or residence which such officer has reason to believe to be false, he may be arrested by such officer in order that his name or residence may be ascertained. (2) When the true name and residence of such person have been ascertained, he shall be released on his executing a bond, with or without sureties, to appear before a Magistrate if so required: Provided that, if such person is not resident in India, the bond shall be secured by a surety or sureties resident in India. (4) (3) Should the true name and residence of such person not be ascertained within twenty-four hours from the time of arrest or should he fail to execute the bond, or, if so required, to furnish sufficient sureties, he shall forthwith be forwarded to the nearest Magistrate having jurisdiction

11. Arrest by Private person and procedure on such arrest.- (1) Any private person may arrest or cause to be arrested any person who in his presence commits a non-bailable and cognizable offence, or any proclaimed offender, and, without unnecessary delay, shall make over or cause to be made over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police station. (2) If there is reason to believe that such person comes under the provisions of section 41, a police officer shall re-arrest him. (3) If there is reason to believe that he has committed a non-cognizable offence, and he refuses on the demand of a police officer to give his name and residence, or gives a name or residence which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 42; but if there is no sufficient reason to believe that he has committed any offence, he shall be at once released.

12. Arrest by Magistrate.- (1) When any offence is committed in the presence of a Magistrate, whether Executive or Judicial, within his local jurisdiction, he may himself arrest or order any person to arrest the offender, and may thereupon, subject to the provisions herein contained as to bail, commit the offender to custody. (2) Any Magistrate, whether Executive or Judicial, may at any time arrest or direct the arrest, in his presence, within his local jurisdiction, of any person for whose arrest he is competent at the time and in the circumstances to issue a warrant

13. Protection of members of the Armed Forces from arrest.- (1) Notwithstanding anything contained in sections 41 to 44 (both inclusive), no member of the Armed Forces of the Union shall be arrested for anything done or purported to be done by him in the discharge of his official duties except after obtaining the consent of the Central Government. (2) The State Government may, by notification, direct that the provisions of sub-section (1) shall apply to such class or category of the members of the Force charged with the maintenance of public order as may be specified therein, wherever they may be serving, and thereupon the provisions of that sub-section shall apply as if for the expression "Central Government" occurring therein, the expression "State Government" were substituted.

14. Arrest how made.- (1) In making an arrest the police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life

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15. Search of place entered by person sought to be arrested.- (1) If any person acting under a warrant of arrest, or any police officer having authority to arrest, has reason to believe that the person to be arrested has entered into, or is within, any place, any person residing in, or being in charge of, such place shall, on demand of such person acting as aforesaid or such police officer, allow him free ingress thereto, and afford all reasonable facilities for a search therein. (2) If ingress to such place cannot be obtained under sub-section (1), it shall be lawful in any case for a person acting under a warrant and in any case in which a warrant may issue, but cannot be obtained without affording the person to be arrested an opportunity of escape, for a police officer to enter such place and search therein, and in order to effect an entrance into such place, to break open any outer or inner door or window of any house or place, whether that of the person to be arrested or of any other person, if after notification of his authority and purpose, and demand of admittance duly made, he cannot otherwise obtain admittance; Provided that, if any such place is an apartment in the actual occupancy of a female (not being the person to be arrested) who, according to custom, does not appear in public, such person or police officer shall, before entering such apartment, give notice to such female that she is at liberty to withdraw and shall afford her every reasonable facility for withdrawing, and may then break open the apartment and enter it. (3) Any police officer or other person authorised to make an arrest may break open any outer or inner door or window of any house or place in order to liberate himself or any other person who, having lawfully entered for the purpose of making an arrest, is detained therein.

18. Person arrested to be informed of grounds of arrest and of right to bail.- (1) Every police officer or other person arresting any person without warrant shall forthwith communicate to him full particulars of the offence for which he is arrested or other grounds for such arrest. (2) Where a police officer arrests without warrant any person other than a person accused of a non-bailable offence, he shall inform the person arrested that he is entitled to be released on bail and that he may arrange for sureties on his behalf.

19. Search of arrested person.- (1) Whenever a person is arrested by a police officer under a warrant which does not provide for the taking of bail, or under a warrant which provides for the taking of bail but the person arrested cannot furnish bail, and whenever a person is arrested without warrant, or by a private person under a warrant, and cannot legally be admitted to bail, or is unable to furnish bail, the officer making the arrest or, when the arrest is made by a private person, the police officer to whom he makes over the person arrested, may search such person, and place in safe custody all articles, other, than necessary wearing-apparel, found upon him and where any article is seized from the arrested person, a receipt showing the articles taken in possession by the police officer shall be given to such person. (2) Whenever it is necessary to cause a female to be searched, the search shall be made by another female with strict regard to decency.

20. Power to seize offensive weapons.-The officer or other person making any arrest under this Code may take from the person arrested any offensive weapons which he has about his person, and shall deliver all weapons so taken to the Court or officer before which or whom the officer or person making the arrest is required by this Code to produce the person arrested

21. Examination of accused by medical practitioner at the request of police officer.- (1) When a person is arrested on a charge of committing an offence of such a nature and alleged to have been committed under such circumstances that there are reasonable grounds for believing that an examination of his person will afford evidence as to the commission of an offence, it shall be lawful for a registered medical practitioner, acting at the request of a police officer not below the rank of sub-inspector, and for any person acting in good faith in his aid and under his direction, to make such an examination of the person arrested as is reasonably necessary in order to ascertain the facts which may afford such evidence, and to use such force as is reasonably necessary for that purpose. (2) Whenever the person of a female is to be examined under this section, the examination shall be made only by, or under the supervision of, a female registered medical practitioner. Explanation.- In this section and in section 54, "registered medical practitioner" means a medical practitioner who possesses any recognized medical qualification as defined in clause (h) of section 2 of the Indian Medical Council Act, 1956,(102 of 1956) and whose name has been entered in a State Medical Register.

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22.Examination of arrested person by medical practitioner at the request of the arrested person.- When a person who is arrested, whether on a charge or otherwise, alleges, at the time when he is produced before a Magistrate or at any time during the period of his detention in custody that the examination of his body will afford evidence which will disprove the commission by him of any offence or which will establish the commission by any other person of any offence against his body, the Magistrate shall, if requested by the arrested person so to do direct the examination of the body of such person by a registered medical practitioner unless the Magistrate considers that the request is made for the purpose of vexation or delay or for defeating the ends of justice.

23.Procedure when police officer deputes subordinate to arrest without warrant.- (1) When any officer in charge of a police station or any police officer making an investigation under Chapter XII requires any officer subordinate to him to arrest without a warrant (otherwise than in his presence) any person who may lawfully be arrested without a warrant, he shall deliver to the officer required to make the arrest an order in writing, specifying the person to be arrested and the offence or other cause for which the arrest is to be made and the officer so required shall, before making the arrest, notify to the person to be arrested the substance of the order and, if so required by such person, shall show him the order. (2) Nothing in sub-section (1) shall affect the power of a police officer to arrest a person under section 41

24. Person arrested to be taken before Magistrate or officer in charge of police station.- A police officer making an arrest without warrant shall, without unnecessary delay and subject to the provisions herein contained as to bail, take or send the person arrested before a Magistrate having jurisdiction in the case, or before the officer in charge of a police station 25.Person arrested not to be detained more than twenty-four hours.- No police officer shall detail in custody a person arrested without warrant for a longer period than under all the circumstances of the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's Court. 26.Police to report apprehensions.- Officers in charge of police stations shall report to the District Magistrate, or, if he so directs, to the Sub-divisional Magistrate, the cases of all persons arrested without warrant, within the limits of their respective stations, whether such persons have been admitted to bail or otherwise

27. Discharge of person apprehended.- No person who has been arrested by a police officer shall be discharged except on his own bond, or on bail, or under the special order of a Magistrate.

28. Power, on escape, to pursue and retake.-(1) If a person in lawful custody escapes or is rescued, the person from whose custody he escaped or was rescued may immediately pursue and arrest him in any place in India. (2) The provisions of section 47 shall apply to arrests under sub-section (1) although the person making any such arrest is not acting under a warrant and is not a police officer having authority to arrest

SECURITY FOR KEEPING THE PEACE AND FOR GOOD BEHAVIOUR29. Security for keeping the peace on conviction.- (1) When a Court of Session or Court of a Magistrate of the first class convicts a person of any of the offences specified in sub-section (2) or of abetting any such offence and is of opinion that it is necessary to take security from such person for keeping the peace, the Court may, at the time of passing sentence on such person, order him to execute a bond, with or without sureties, for keeping the peace for such period, not exceeding three years, as it thinks fit. (2) The offences referred to in sub-section (1) are- (a) any offence punishable under Chapter VIII of the Indian Penal Code, (45 of 1860) other than an offence punishable under section 153A or section 153B or section 154 thereof; (b) any offence which consists of, or includes, assault or using criminal force or committing mischief; (c) any offence of criminal intimidation; (d) any other offence which caused, or was intended or known to be likely to cause, a breach of the peace. (3) If the conviction is set aside on appeal or otherwise, the bond so executed shall become void. (4) An order under this section may also be made by an Appellate Court or by a Court when exercising its powers of revision.

30. Security for keeping the peace in other cases.- (1) When an Executive Magistrate receives information that any person is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act that may probably occasion a breach of the peace or disturb the public tranquillity and is of opinion that there is sufficient ground for

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proceeding, he may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, for keeping the peace for such period, not exceeding one year, as the Magistrate thinks fit. (2) Proceeding under this section may be taken before any Executive Magistrate when either the place where the breach of the peace or disturbance is apprehended is within his local jurisdiction or there is within such jurisdiction a person who is likely to commit a breach of the peace or disturb the public tranquillity or to do any wrongful act as aforesaid beyond such jurisdiction.

31. Security for good behaviour from persons disseminating seditious matters.- (1) When a Judicial Magistrate of the first class receives information that there is within his local jurisdiction any person who, within or without such jurisdiction, - (i) Either orally or in writing or in any other manner, intentionally disseminates or attempts to disseminate or abets the dissemination of, - (a) Any matter the publication of which is punishable under section 124A or section 153A or section 153B or section 295A of the Indian Penal Code, (45 of 1860) or (b) Any matter concerning a Judge acting or purporting to act in the discharge of his official duties which amounts to criminal intimidation or defamation under the Indian Penal Code, (45 of 1860). (ii)makes, produces, publishes or keeps for sale, imports, exports, conveys, sells, lets to hire, distributes, publicly exhibits or in any other manner puts into circulation any obscene matter such as is referred to in section 292 of the Indian Penal Code, (45 of 1860) (ii) And the Magistrate is of opinion that there is sufficient ground for proceeding, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit. (2) No proceedings shall be taken under this section against the editor, proprietor, printer or publisher of any publication registered under, and edited, printed and published in conformity with, the rules laid down in the Press and Registration of Books Act, 1867, (25 of 1867) with reference to any matter contained in such publication except by the order or under the authority of the State Government or some officer empowered by the State Government in this behalf

32.Security for good behaviour from suspected persons.- When a Judicial Magistrate of the first class receives information that there is within his local jurisdiction a person taking precautions to conceal his presence and that there is reason to believe that he is doing so with a view to committing a cognizable offence, the Magistrate may, in the manner hereinafter provided, require such person to show cause why he should no the ordered to execute a bond, with or without sureties, for his good behaviour for such period, not exceeding one year, as the Magistrate thinks fit.

33. Security for good behaviour from habitual offenders.- When a Judicial Magistrate of the first class receives information that there is within his local jurisdiction a person who – (a) Is by habit a robber, house-breaker, thief, or forger, or (b) Is by habit a receiver of stolen property knowing the same to have been stolen, or (c) Habitually protects or harbours thieves, or aids in the concealment or disposal of stolen property, or (d) Habitually commits, or attempts to commit, or abets the commission of, the offence of kidnapping, abduction, extortion, cheating or mischief, or any offence punishable under Chapter XII of the Indian Penal Code, (45 of 1860) or under section 489A, section 489B, section 489C or section 489D of that Code, or (e) Habitually commits, or attempts to commit, or abets the commission of, offences, involving a breach of the peace, or (f) Habitually commits, or attempts to commit, or abets the commission of – (i) Any offence under one or more of the following Acts, namely:- (a) The Drugs and Cosmetics Act, 1940 (23 of 1940); (b) The Foreign Exchange Regulation Act, 1973 (7 of 1973); (c) The employees' Provident Funds and Family Pension Fund Act, 1952 (19 of 1952); (d) The Prevention of Food Adulteration Act, 1954 (37 of 1954); (e) The Essential Commodities Act, 1955(10 of 1955); f) The Untouchability (Offences) Act, 1955 (22 of 1955); (g) The Customs Act, 1962 (52 of 1962); or (ii) Any offence punishable under any other law providing for the prevention of hoarding or profiteering or of adulteration of food or drugs or of corruption, or (g) is so desperate and dangerous as to render his being at large without security hazardous to the community, such Magistrate may, in the manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties, for his good behaviour for such period, not exceeding three years, as the Magistrate thinks fit.

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34. Order to be made.- When a Magistrate acting under section 107, section 108, section 109 or section 110, deems it necessary to require any person to show cause under such section, he shall make an order in writing, setting forth the substance of the information received, the amount of the bond to be executed, the term for which it is to be in force, and the number, character and class of sureties (if any) required35.Procedure in respect of person in Court.- If the person in respect of whom such order is made is present in Court, it shall be read over to him, or, if he so desires, the substance thereof shall be explained to him.36.Summons or warrant in case of person not so present.- If such person is not present in Court, the Magistrate shall issue a summons requiring him to appear, or, when such person is in custody, a warrant directing the officer in whose custody he is to bring him before the Court; Provided that whenever it appears to such Magistrate, upon the report of a police officer or upon other information (the substance of which report or information shall be recorded by the Magistrate), that there is reason to fear the commission of a breach of the peace, and that such breach of the peace cannot be prevented otherwise than by the immediate arrest of such person, the Magistrate may at any time issue a warrant for his arrest. 37.Copy of order to accompany summons or warrant.- Every summons or warrant issued under section 113, shall be accompanied by a copy of the order made under section 111, and such copy shall be delivered by the officer serving or executing such summons or warrant to the person served with, or arrested under, the same. 38.Power to dispense with personal attendance.- The Magistrate may, if he sees sufficient cause, dispense with the personal attendance of any person called upon to show cause why he should not be ordered to execute a bond for keeping the peace or for good behaviour and may permit him to appear by a pleader.

39. Inquiry as to truth of information.- (1) When an order under section 111 has been read or explained under section 112 to a person present in Court, or when any person appears or is brought before a Magistrate in compliance with, or in execution of, a summons or warrant, issued under section 113, the Magistrate shall proceed to inquire into the truth of the information upon which action has been taken, and to take such further evidence as may appear necessary. (2) Such inquiry shall be made, as nearly as may be practicable, in the manner hereinafter prescribed for conducting trial and recording evidence in summons-cases. (3) After the commencement, and before the completion, of the inquiry under sub-section (1), the Magistrate, if he considers that immediate measures are necessary for the prevention of a breach of the peace or disturbance of the public tranquility or the commission of any offence or for the public safety, may, for reasons to be recorded in writing, direct the person in respect of whom the order under section 111 has been made to execute a bond, with or without sureties, for keeping the peace or maintaining good behavior until the conclusion of the inquiry, and may detail him in custody until such bond is executed or, in default of execution, until the inquiry is concluded: Provided that- (a) No person against whom proceedings are not being taken under section 108, section 109, or section 110 shall be directed to execute a bond for maintaining good behaviour; (b) The conditions of such bond, whether as to the amount thereof or as to the provision of sureties or the number thereof or the pecuniary extent of their liability, shall not be more onerous than those specified in the order under section 111. (4) For the purpose of this section the fact that a person is an habitual offender or is so desperate and dangerous as to render his being at large without security hazardous to the community may be proved by evidence of general repute or otherwise. (5) Where two or more persons have been associated together in the matter under inquiry, they may be dealt with in the same or separate inquiries as the Magistrate shall think just. (6) The inquiry under this section shall be completed within a period of six months from the date of its commencement, and if such inquiry is not so completed, the proceedings under this Chapter shall on the expiry of the said period, stand terminated unless, for special reasons to be recorded in writing, the Magistrate otherwise directs: Provided that where any person has been kept in detention pending such inquiry, the proceeding against that person, unless terminated earlier, shall stand terminated on the expiry of a period of six months of such detention. (7) Where any direction is made under sub-section (6) permitting the continuance of proceedings, the Sessions Judge may, on an application made to him by the aggrieved party, vacate such direction if he is satisfied that it was not based on any special reason or was perverse.

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40.Order to give security.- If, upon such inquiry, it is proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made should execute a bond, with or without sureties, the Magistrate shall make an order accordingly: Provided that- (a) No person shall be ordered to give security of a nature different from, or of an amount large than, or for a period longer than, that specified in the order made under section 111; (b) The amount of every bond shall be fixed with due regard to the circumstances of the case and shall not be excessive; (c) When the person in respect of whom the inquiry is made is a minor, the bond shall be executed only by his sureties. 41.Discharge of person informed against.- If, on an inquiry under section 116, it is not proved that it is necessary for keeping the peace or maintaining good behaviour, as the case may be, that the person in respect of whom the inquiry is made, should execute a bond, the Magistrate shall make an entry on the record to that effect, and if such person is in custody only for the purposes of the inquiry, shall release him, or, if such person is not in custody, shall discharge him.

42. Commencement of period for which security is required.-(1) If any person, in respect of whom an order requiring security is made under section 106 or section 117, is, at the time such order is made, sentenced to, or undergoing a sentence of, imprisonment, the period for which such security is required shall commence on the expiration of such sentence. (2) In other cases such period shall commence on the date of such order unless the Magistrate, for sufficient reason, fixes a later date. 43. Power to reject sureties.- (1) A Magistrate may refuse to accept any surety offered, or may reject any surety previously accepted by him or his predecessor under this Chapter on the ground that such surety is an unfit person for the purposes of the bond: Provided that, before so refusing to accept or rejecting any such surety, he shall either himself hold an inquiry on oath into the fitness of the surety, or cause such inquiry to be held and a report to be made thereon by a Magistrate subordinate to him. (2) Such Magistrate shall, before holding the inquiry, give reasonable notice to the surety and to the person by whom the surety was offered and shall, in making the inquiry, record the substance of the evidence adduced before him. (3) If the Magistrate is satisfied, after considering the evidence so adduced either before him or before a Magistrate deputed under sub-section (1), and the report of such Magistrate (if any), that the surety is an unfit person for the purposes of the bond, he shall make an order refusing to accept or rejecting, as the case may be, such surety and recording his reasons for so doing: Provided that, before making an order rejecting any surety who has previously been accepted, the Magistrate shall issue his summons or warrant, as he thinks fit, and cause the person for whom the surety is bound to appear or to be brought before him. 44.Imprisonment in default of security.- (1) (a) If any person ordered to give security under section 106 or section 117 does not give such security on or before the date on which the period for which such security is to be given commences, he shall, except in the case next hereinafter mentioned, be committed to prison, or, if he is already in prison, be detained in prison until such period expires or until within such period he gives the security to the Court or Magistrate who made the order requiring it. (b) If any person after having executed a bond without sureties for keeping the peace in pursuance of an order of a Magistrate under section 117, is proved, to the satisfaction of such Magistrate or his successor-in-office, to have committed breach of the bond, such Magistrate or successor-in-officemay, after recording the grounds of such proof, order that the person be arrested and detained in prison until the expiry of the period of the bond and such order shall be without prejudice to any other punishment or forfeiture to which they said person may be liable in accordance with law. (2) When such person has been ordered by a Magistrate to give security for a period exceeding one year, such Magistrate shall, if such person does not give such security as aforesaid, issue a warrant directing him to be detained in prison pending the orders of the Sessions Judge and the proceedings shall be laid, as soon as conveniently may be, before such Court. (3) Such Court, after examining such proceedings and requiring from the Magistrate any further information or evidence which it thinks necessary, and after giving the concerned person a reasonable opportunity of being heard, may pass such order on the case as it thinks fit: Provided that the period (if any) for which any person is imprisoned for failure to give security shall not exceed three years. (4) If security has been required in the course of the same proceeding from two or more persons in

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respect of any one of whom the proceedings are referred to the Sessions Judge under sub-section (2), such reference shall also include the case of any other of such persons who has been ordered to give security, and the provisions of sub-sections (2) and (3) shall, in that event, apply to the case of such other person also, except that the period (if any) for which he may be imprisoned shall not exceed the period for which he was ordered to give security. (5) A Sessions Judge may in his discretion transfer any proceedings laid before him under sub-section (2) or sub-section (4) to an Additional Sessions Judge or Assistant Sessions Judge and upon such transfer, such Additional Sessions Judge or Assistant Sessions Judge may exercise the powers of a Sessions Judge under this section in respect of such proceedings. (6) If the security is tendered to the officer in charge of the jail, he shall forthwith refer the matter to the Court or Magistrate who made the order, and shall await the orders of such Court or Magistrate. (7) Imprisonment for failure to give security for keeping the peace shall be simple. (8) Imprisonment for failure to give security for good behaviour shall, where the proceedings have been taken under section 108, be simple, and, where the proceedings have been taken under section 109 or section 110, be rigorous or simple as the Court or Magistrate in each case directs

45. Power to release persons imprisoned for failing to give security.- (1) Whenever the Chief Judicial Magistrate is of opinion that any person imprisoned for failing to give security under this Chapter may be released without hazard to the community or to any other person, he may order such person to be discharged. (2) Whenever any person has been imprisoned for failing to give security under this Chapter, the High Court or Court of Session, or, where the order was made by any other Court, the Chief Judicial Magistrate, may make an order reducing the amount of the security or the number of sureties or the time for which security has been required. (3) An order under sub-section (1) may direct the discharge of such person either without conditions or upon any conditions which such person accepts: Provided that any condition imposed shall cease to be operative when the period for which such person was ordered to give security has expired. (4) The State Government may prescribe the conditions upon which a conditional discharge may be made. (5) If any condition upon which any person has been discharged it, in the opinion of the Chief Judicial Magistrate by whom the order of discharge was made or of his successor, not fulfilled, he may cancel the same. (6) When a conditional order of discharge has been cancelled under sub-section (5), such person may be arrested by any police officer without warrant, and shall thereupon be produced before the Chief Judicial Magistrate. (7) Unless such person gives security in accordance with the terms of the original order for the unexpired portion of the term for which he was in the first instance committed or ordered to be detained (such portion being deemed to be a period equal to the period between the date of the breach of the conditions of discharge and the date on which, except for such conditional discharge, he would have been entitled to release), the Chief Judicial Magistrate may remand such person to prison to undergo such unexpired portion. (8) A person remanded to prison under sub-section(7) shall, subject to the provisions of section 122, be released at any time on giving security in accordance with the terms of the original order for the unexpired portion aforesaid to the Court or Magistrate by whom such order was made, or to its or his successor. (9) The High Court or Court of Session may at any time, for sufficient reasons to be recorded in writing, cancel any bond for keeping the peace or for good behaviour executed under this Chapter by any order made by it, and the Chief Judicial Magistrate may make such cancellation where such bond was executed under his order or under the order of any other Court in his direct. (10) Any surety for the peaceable conduct or good behaviour of another person ordered to execute a bond under this Chapter may at any time apply to the Court making such order to cancel the bond and on such application being made, the Court shall issue a summons or warrant, as it thinks fit, requiring the person for whom such surety is bound to appear or to be brought before it.

46. Security for unexpired period of bond.-(1) When a person for whose appearance a summons or warrant has been issued under the proviso to sub-section (3) of section 121 or under sub-section (10) of section 123, appears or is brought before the Magistrate or Court, the Magistrate or Court shall cancel the bond executed by such person and shall order such person to give, for the unexpired portion of the term of such bond, fresh security of the same description as the original security. (2) Every such order shall, for the purposes of sections 120 to 123 (both inclusive), be deemed to be an order made under section 106 or section 117, as the case may be

PREVENTIVE ACTION OF THE POLICE

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47. Police to prevent cognizable offences.- Every police officer may interpose for the purpose of preventing, and shall, to the best of his ability, prevent, the commission of any cognizable offence. 48. Information of design to commit cognizable offences.- Every police officer receiving information of a design to commit any cognizable offence shall communicate such information to the police officer to whom he is subordinate, and to any other officer whose duty it is to prevent or take cognizance of the commission of any such offence. 49. Arrest to prevent the commission of cognizable offences.- (1) A police officer knowing of a design to commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person so designing, if it appears to such officer that the commission of the offence cannot be otherwise prevented. (2) No person arrested under sub-section (1) shall be detained in custody for a period exceeding twenty-four hours from the time of his arrest unless his further detention is required or authorised under any other provisions of this Code or of any other law for the time being in force. 50. Prevention of injury to public property. - A police officer may of his own authority interpose to prevent any injury attempted to be committed in his view to any public property, movable or immovable, or the removal of injury of any public landmark or buoy or other mark used for navigation. 51. Inspection of weights and measures. - (1) Any officer in charge of a police station may, without a warrant, enter any place within the limits of such station for the purpose of inspecting or searching for any weights or measures or instruments for weighing, used or kept therein, whenever he has reason to believe that there are in such place any weights, measures or instruments for weighing which are false. (2) If he finds in such place any weights, measures or instruments for weighing which are false, he may seize the same, and shall forthwith give information of such seizure to a Magistrate having jurisdiction.

52. Power to try summarily.- (1) Notwithstanding anything contained in this Code- (a) Any Chief Judicial Magistrate; (b) any Metropolitan Magistrate; (c) any Magistrate of the first class specially empowered in this behalf by the High Court, may, if he thinks fit, try in a summary way all or any of the following offences: (I) Offences not punishable with death, imprisonment for life or imprisonment for a term exceeding two years; (ii) Theft, under section 379, section 380 or section 381 of the Indian Penal Code, (45 of 1860) where the value of the property stolen does not exceed two hundred rupees; (iii) Receiving or retaining stolen property, under section 411 of the Indian Penal Code, (45 of 1860) where the value of the property does not exceed two hundred rupees; (iv) Assisting in the concealment or disposal of stolen property, under section 414 of the Indian Penal Code, (45 of 1860) where the value of such property does not exceed two hundred rupees; (v) Offences under sections 454 and 456 of the Indian Penal Code (45 of 1860); (vi) insult with intent to provoke a breach of the peace, under section 504, and criminal intimidation, under section 506 of the Indian Penal Code(45 of 1860); (vii) Abetment of any of the foregoing offences; (viii) An attempt to commit any of the foregoing offences, when such attempt is an offence;

53. Summary trial by Magistrate of the second class. - The High Court may confer on any Magistrate invested with the powers of a Magistrate of the second class power to try summarily any offence which is punishable only with fine or with imprisonment for a term not exceeding six months with or without fine, and any abetment of or attempt to commit any such offence. 262. Procedure for summary trials.- (1) In trials under this Chapter, the procedure specified in this Code for the trial of summons-case shall be followed except as hereinafter mentioned. (2) No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under this Chapter.

54.Record in summary trials.- In every case tried summarily, the Magistrate shall enter, in such form as the State Government may direct, the following particulars, namely:- (a) The serial number of the case: (b) The date of the commission of the offence;(c) The date of the report or complaint; (d) The name of the complainant (if any);(e) The name, parentage and residence of the accused; (f) The offence complained of and the offence (if any) proved, and in cases coming under clause (ii), clause (iii) or clause (iv) of sub-section (1) of section 260, the value of the property in respect of which the offence has been committed; (g) The plea of the accused and his examination (if any); (h) The finding; (i) the sentence or other final order (j) the date on which proceedings terminated. 55. Judgment in cases tried summarily.- In every case tried summarily in which the accused does not

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plead guilty, the Magistrate shall record the substance of the evidence and a judgment containing a brief statement of the reasons for the finding. 56. Language of record and judgment.- (1) Every such record and judgment shall be written in the language of the Court. (2) The High Court may authorise any Magistrate empowered to try offences summarily to prepare the aforesaid record or judgment or both by means of an officer appointed in this behalf by the Chief Judicial Magistrate, and the record or judgment so prepared shall be signed by such Magistrate

LIMITATION FOR TAKING COGNIZANCE OF CERTAIN OFFENCES57. Definitions:-For the purposes of this chapter unless the context otherwise requires, "period of limitation" means the period specified in Section 468 for taking cognizance of an offence.58. Bar to taking cognizance after lapse of the period of limitation:-(1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be :- (a) Six months, if the offence is punishable with fine only; (b) One year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) Three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment.

59. Commencement of the period of limitation:- (1) The period of limitation, in relation to an offender, shall commence – (a) On the date of the offence; or (b) Where the commission of the offence was not known to the person aggrieved by the offence or to any police officer, the first day on which offence comes to the knowledge of such person or to any police officer, whichever is earlier; or (c) Where it is not known by whom the offence committed, the first day on which the identity of the offender is known to the person aggrieved by the offence or to the police officer making investigation into the offence, whichever is earlier (2) In computing the said period, the day from which such period is to be computed shall be excluded.

60. Exclusion of time in certain cases: --- (1) In computing the period of limitation, the time during which any person has been prosecuting with due diligence another prosecution, whether in a Court of first instance or in a Court of appeal or revision, against the offender, shall be excluded: Provided that no such exclusion shall be made unless the prosecution relates to the same facts and is prosecuted in good faith in a Court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. (2) Where the institution of the prosecution in respect of an offence has been stayed by an injunction or order, then, in computing the period of limitation, the period of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded. (3) Where notice of prosecution for an offence been given, or where, under any law for the time being, in force, the previous consent or sanction of the Government or any other authority is required for the institution of any prosecution for an offence, then, in computing the period of limitation, the period of such notice or, as the case be, the time required for obtaining such consent or sanction shall be excluded. Explanation:- In computing the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be excluded. (4) In computing the period of limitation, the time during which the offender,- (a) Has been absent from India or from any territory outside India which is under the administration of the Central Government, or (b) Has avoided arrest by absconding or concealing himself, shall be excluded. 61. Exclusion of date on which Court is closed:- Where the period of limitation expires on a day when the Court is closed, the Court may take cognizance on the day on which the Court reopens. Explanation:- A Court shall be deemed to be closed on any day within the meaning of this section, if, during its normal working hours, it remains closed on that day. 62. Continuing offence:- In the case of a continuing offence, a fresh period of limitation shall begin to run at every moment of the time during which the offence continues.

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63. Extension of period of limitation in certain cases:- Notwithstanding anything contained in the foregoing provisions of this chapter, any court may take cognizance of an offence after the expiry of the period of limitation, if it is satisfied of the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary so to do in the interests of justice

LESSON:-6 THE TRANSFER OF PROPERTY ACT, 1882

1. Repeal of Acts - Saving of certain enactments, incidents, rights, liabilities, etc.In the territories to which this Act extends for the time being the enactments specified in the schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect -(a) The provisions of any enactment not hereby expressly repealed;(b) Any terms or incidents of any contract or constitution of properties which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;(c) Any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or(d) Save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a Court of competent jurisdiction; and nothing in the second Chapter of this Act shall be deemed to affect any rule of Muhammadan law.

2. Interpretation clause - In this Act, unless there is something repugnant in the subject or context, - Immoveable property:- does not include standing timber, growing crops or grass:Instrument: - means a non-testamentary instrument:Attested:-, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgment of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary:Registered: - means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents:Attached to the earth: means -(a) Rooted in the earth, as in the case of trees and shrubs;(b) Imbedded in the earth, as in the case of walls or buildings;or(c) Attached to what is so imbedded for the permanent beneficial enjoyment of that to which it is attached;Actionable claim: - means a claim to any debt, other than a debt secured by mortgage of immoveable property or by hypothecation or pledge of moveable property, or to any beneficial interest in moveable property not in the possession, either actual or constructive, of the claimant, which the Civil Courts recognize as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingentA person is said to have notice:- of a fact when he actually knows that fact, or when, but for wilful abstention from an inquiry or search which he ought to have made, or gross negligence, he would have known it.Explanation I - Where any transaction relating to immoveable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situatedProvided that -(1) The instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,(2) The instrument or memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and (3) The particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.Explanation II - Any person acquiring any immoveable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

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Explanation III - A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material: Provided that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration ActThe Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872). And sections 54, paragraphs 2 and 3, sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act

Transfers of Property by Act of Parties(A) Transfer of Property, whether moveable or immoveable5. “Transfer of property” definedIn the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself, [or to himself] and one or more other living persons; and “to transfer property” is to performsuch act. In this section “living person” includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

6. What may be transferred?Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force, -(a) The chance of an heir-apparent succeeding to an estate, the chance of relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to any one except the owner of the property affected thereby.(c) An easement cannot be transferred apart from the dominant heritage.(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.(e) A mere right to sue cannot be transferred.(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.(g) Stipends allowed to military [naval], [air-force] and civil pensioners of [Government] and political pensions cannot be transferred.(h) No transfer can be made (1) in so far as it is opposed to the nature of the interest affected thereby, or (2) 8[for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872)], or (3) to a person legally disqualified to be transferee.(i) Nothing in this section shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

7. Persons competent to transferEvery person competent to contract and entitled to transferable property, or authorized to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extend and in the manner, allowed and prescribed by any law for the time being in force.8. Operation of transferUnless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property, and in the legal incidents thereof. Such incidents include, where the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth; and, where the property is machinery attached to the earth, the moveable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith; and, where the property is a debt or other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer; and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.9. Oral transfer

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A transfer of property may be made without writing in every case in which a writing is not expressly required by law.

10. Condition restraining alienationWhere property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him: provided that property may be transferred to or for the benefit of a woman (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

11. Restriction repugnant to interest createdWhere, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner; he shall be entitled to receive and dispose of such interest as if there were no such direction.Where any such direction has been made in respect of one piece of immoveable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.

12. Condition making interest determinable on insolvency or attempted alienationWhere property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void. Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

13. Transfer for benefit of unborn personWhere, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.IllustrationA transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

14. Rule against perpetuityNo transfer of property can operate to create an interest which is to take effect after the life-time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.

15. Transfer to class some of whom come under sections 13 and 14If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails [in regard to those persons only and not in regard to the whole class].16. Transfer to take effect on failure of prior interestWhere, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.

17. Direction for accumulation(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than -(a) The life of the transferor, or(b) A period of eighteen years from the date of the transfer, such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

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(2) This section shall not affect any direction for accumulation for the purpose of-(i) The payment of the debts of the transferor or any other person taking any interest under the transfer, or(ii) The provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer, or(iii) The preservation or maintenance of the property transferred; and such direction may be made accordingly.

18. Transfer in perpetuity for benefit of publicThe restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety, or any other object beneficial to mankind.

19. Vested interestWhere, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer. A vested interest is not defeated by the death of the transferee before he obtains possession.Explanation - An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

20. When unborn person acquires vested interest on transfer for his benefitWhere, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appear from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.

21. Contingent interestWhere, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.Exception - Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

22. Transfer to members of a class who attain a particular ageWhere, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.23. Transfer contingent on happening of specified uncertain eventWhere, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases of exist.24. Transfer to such of certain persons as survive at some period not specifiedWhere, on a transfer of property, an interest therein is to accrue to such of certain persons as shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.IllustrationA transfer’s property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the life of B. D survives B. At B’s death the property passes to D.

25. Conditional transferAn interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the Court regards it as immoral or opposed to public policy.

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Illustrations(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.(d) A transfers Rs. 500 to his niece C if she will desert her husband. The transfer is void.

26. Fulfilment of condition precedentWhere the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.Illustrations(a) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.(b) A transfers Rs. 5,000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.

27. Conditional transfer to one person coupled with transfer to another on failure of prior dispositionWhere, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor. But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.Illustrations(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect.(b) A transfers property to his wife; but, in case she should die in his life-time, transfers to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.

28. Ulterior transfer conditional on happening or not happening of specified eventOn a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.

29. Fulfilment of condition subsequentAn ulterior disposition of the kind contemplated by the last preceding section cannot take effect unless the condition is strictly fulfilled.IllustrationA transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies a minor or marries without C’s consent, the Rs. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.

30. Prior disposition not affected by invalidity of ulterior dispositionIf the ulterior disposition is not valid, the prior disposition is not affected by it.IllustrationA transfers a farm to B for her life, and, if she do not desert her husband, to C. B is entitled to the farm during her life as if no condition had been inserted.

31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happenSubject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.Illustrations

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(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.

32. Such condition must not be invalidIn order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.

33. Transfer conditional on performance of act, no time being specified for performanceWhere, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act.

34. Transfer conditional on performance of act, time being specifiedWhere an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the non-fulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non- fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.

35. Election when necessaryWhere a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless, where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer, and in all cases where the transfer is for consideration, to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.

36. Apportionment of periodical payments on determination of interest of person entitledIn the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.

37. Apportionment of benefit of obligation on severanceWhen, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation, the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose:Provided that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in manner provided by this section, unless and until he has had reasonable notice of the severance. Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.Illustrations(a) A sells to B, C and D a house situate in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one-quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7 1/2 to C, and Rs. 7 1/2 to D, and must deliver the sheep according to the joint direction of B, C and D.

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(b) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation, E had agreed as a term of his lease to perform this work for A. B, C and D severally require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work in all, according to such directions as B, C and D may join in giving.

(B) Transfer of Immoveable Property38. Transfer by person authorised only under certain circumstances to transferWhere any person, authorized only under circumstances in their nature variable to dispose of immoveable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.IllustrationA, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable, to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.

39. Transfer where third person is entitled to maintenanceWhere a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immoveable property, and such property is transferred, the right may be enforced against the transferee, if he has notice or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.

40. Burden of obligation imposing restriction on use of landWhere, for the more beneficial enjoyment of his own immoveable property, a third person has, independently of any interest in the immoveable property of another or of any easement thereon, a right to restrain the enjoyment 16[in a particular manner of the latter property], orOr of obligation annexed to ownership but not amounting to interest or easement Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immoveable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.IllustrationA contract to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.

41. Transfer by ostensible ownerWhere, with the consent, express or implied, of the persons interested in immoveable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorized to make it: provided that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.42. Transfer by person having authority to revoke former transferWhere a person transfers any immoveable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.IllustrationA lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value, Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.

43. Transfer by unauthorized person who subsequently acquires interest in property transferredWhere a person 17[fraudulently or] erroneously represents that he is authorized to transfer certain immovable property, and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at

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any time during which the contract of transfer subsists. Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

IllustrationA, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorized to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.44. Transfer by one co-ownerWhere one of two or more co-owners of immoveable property legally competent in that behalf transfer his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same, but subject to the conditions and liabilities affecting, at the date of the transfer, the share or interest so transferred. Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

45. Joint transfer for considerationWhere immoveable property is transferred for consideration to two or more persons, and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced. In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.

46. Transfer for consideration by persons having distinct interestsWhere immoveable property is transferred for consideration by persons having distinct interests therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interest in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.Illustration(a) A, owing a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza Lalpura. There being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in that mauza.(b) A, being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A’s life- interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money. B and C to receive Rs. 400.

47. Transfer by co-owners of share in common propertyWhere several co-owners of immoveable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.IllustrationA, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer oneanna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.

48. Priority of rights created by transferWhere a person purports to create by transfer at different times rights in or over the same immoveable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.

49. Transferee’s right under policyWhere immoveable property is transferred for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require any money which the transferor

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actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.

50. Rent bona fide paid to holder under defective titleNo person shall be chargeable with any rents or profits of any immoveable property, which he has in good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits.IllustrationA lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B is not chargeable with the rent so paid.

51. Improvements made by bona fide holders under defective titlesWhen the transferee of immoveable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell his interest in the property to the transferee at the then market-value thereof, irrespective of the value of such improvement. The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction. When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

52. Transfer of property pending suit relating theretoDuring the 18[pendency] in any Court having authority [within the limits of Indiaexcluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] of [any] suit or proceeding which is not collusive and in which any right to immoveable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order, and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.]

53. Fraudulent transfer(1) Every transfer of immoveable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed. Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration. Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor, shall be instituted on behalf of, or for the benefit of, all the creditors.(2) Every transfer of immoveable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee. For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

53A. Part performanceWhere any person contracts to transfer for consideration any immoveable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty, and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract, and the transferee has performed or is willing to perform his part of the contract, then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the tranferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of

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the contract: Provided that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

Sales of Immoveable Property54. “Sale” defined“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised. Sale how madeSuch transfer, in the case of tangible immoveable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.In the case of tangible immoveable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.Delivery of tangible immoveable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.Contract for saleA contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties. It does not, of itself, create any interest in or charge on such property.

55. Rights and liabilities of buyer and sellerIn the absence of a contract to the contrary, the buyer and the seller of immoveable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:(1) The seller is bound -(a) To disclose to the buyer any material defect in the property [or in the seller’s title thereto] of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;(b) To produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power?(c) To answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;(d) On payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place; (e) Between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;(f) To give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;(g) To pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same: Provided that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it. The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power:Provided that, (a) Where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and, (b) Where the whole of such property is sold to different buyers, the buyer of the lot of greatest value is entitled to such documents. But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.(4) The seller is entitled -(a) To the rents and profits of the property till the ownership thereof passes to the buyer;

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(b) Where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, 1[any transferee without consideration or any transferee with notice of the non-payment], for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part (5) The buyer is bound(a) To disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;(b) To pay or tender, at the time and place of completing the sale, the purchasemoney to the seller or such person as he directs: provided that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;(c) Where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;(d) Where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.(6) The buyer is entitled -(a) Where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission. An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a), and paragraph (5), clause (a), is fraudulent.

56. Marshalling by subsequent purchaserIf the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgage-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.

Discharge Of Encumbrances On Sale57. Provision by Court for encumbrances and sale freed therefrom(a) Where immoveable property subject to any encumbrance, whether immediately payable or not, is sold by the Court or in execution of a decree, or out of Court, the Court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into Court, -(1) In case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property -- of such amount as, when invested in securities of the central Government, the Court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and(2) In any other case of a capital sum charged on the property -- of the amount sufficient to meet the encumbrance and any interest due thereon. But in either case there shall also be paid into Court such additional amount as the Court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investments, not exceeding one-tenth part of the original amount to be paid in, unless the Court for special reasons (which it shall record) thinks fit to require a large additional amount.(b) Thereupon the Court may, if it thinks fit, and after notice to the encumbrance, unless the Court, for reasons to be recorded in writing, thinks fit to dispense with such notice, declare the property to be freed from the encumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in Court.(c) After notice served on the persons interested in or entitled to the money or fund in Court, the Court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.(e) In this section “Court” means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the Court of a District Judge within the local limits of whose jurisdiction the property

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or any part thereof is situate, (3) any other Court which the State Government may, from time to time, by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.

Mortgages of Immoveable Property and Charges

58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgagedeed” defined(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability. The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgagemoney, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.(b) Simple mortgageWhere, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.(c) Mortgage by conditional saleWhere the mortgagor ostensibly sells the mortgaged property - on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or on condition that on such payment being made the sale shall become void, or on condition that on such payment being made the buyer shall transfer the property to the seller, the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale: [Provided that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.](d) Usufructuary mortgageWhere the mortgagor delivers possession [or expressly or by implication binds himself to deliver possession] of the mortgaged property to the mortgagee, and authorizes him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property [or any part of such rents and profits and to appropriate the same] in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest [or] partly in payment of the mortgage- money, the transaction is called an usufructuary mortgage and the mortgagee an usufructuary mortgagee.(e) English mortgageWhere the mortgagor binds himself to re-pay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will retransfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.(f) Mortgage by deposit of title-deedsWhere a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town7 which the [State Government concerned] may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immoveable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.(g) Anomalous mortgageA mortgage which is not a simple mortgage, a mortgage by conditional sale, an usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.59. Mortgage when to be by assuranceWhere the principal money secured is one hundred rupees or upwards, a mortgage [other than a mortgage by deposit of title-deeds] can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses. Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by [a registered instrument] signed and attested as aforesaid, or (except in the case of a simple mortgage) by delivery of the property.59A. References to mortgagors and mortgagees to include persons deriving title from themUnless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.

Rights and Liabilities of Mortgagor60. Right of mortgagor to redeem

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At any time after the principal money has become 14[due], the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) To deliver [to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], (b) Where the mortgagee is in possession thereof to the mortgagor, and (c) At the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgment in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished: Provided that the right conferred by this section has not been extinguished by act of the parties or by [decree] of a Court. The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

Redemption of portion of mortgaged propertyNothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except [only] where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

60A. Obligation to transfer to third party instead of re-transference to mortgagor(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions on the fulfilment of which he would be entitled to require a re-transfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage-debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly. (2) The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrancers; the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer.(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.

60B. Right to inspection and production of documentsA mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and at his own cost, and on payment of the mortgagee’s costs and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.61. Right to redeem separately or simultaneouslyA mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.

62. Right of usufructuary mortgagor to recover possessionIn the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property [together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee], -(a) Where the mortgagee is authorized to pay himself the mortgage-money from the rents and profits of the property, -- when such money is paid;(b) Where the mortgagee is authorized to pay himself from such rents and profits [or any part thereof a part only of the mortgage-money], -- when the term, if any, prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee [the mortgage-money or the balance thereof] or deposits it in Court as hereinafter provided.

63. Accession to mortgaged property Where mortgaged property in possession of the mortgagee has, during the continuance of the

mortgage, received any accession, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession. Accession acquired in virtue of transferred ownership

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Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it.

If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, [with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum].

In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.

Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.

63A. Improvements to mortgaged property(1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof.(2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.

64. Renewal of mortgaged leaseWhere the mortgaged property is a lease and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.

65. Implied contracts by mortgagorIn the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee, -(a) That the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same;(b) That the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title thereto; (c) That the mortgagor will, so long as the mortgagee is not in possession of the mortgaged property, pay all public charges accruing due in respect of the property;(d) And, where the mortgaged property is a lease , that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against all claims sustained by reason of the non-payment of the said rent or the nonperformance or non-observance of the said conditions and contracts;(e) And, where the mortgage is a second or subsequent encumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on each prior encumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior encumbrance. The benefit of the contracts mentioned in this section shall be annexed to and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

65A. Mortgagor’s power to lease(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.(b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance.

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(c) No such lease shall contain a covenant for renewal.(d) Every such lease shall take effect from a date not later than six months from the date on which it is made.(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid within a time therein specified. (3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.66. Waste by mortgagor in possessionA mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.Explanation - A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

Rights and Liabilities of Mortgagee67. Right to foreclosure or saleIn the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage-money has become [due] to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the Court 2[a decree] that the mortgagor shall be absolutely debarred of his right to redeem the property, or 2[a decree] that the property be sold.A suit to obtain [a decree] that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.Nothing in this section shall be deemed -(a) To authorize any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or an usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or](b) To authorize a mortgagor who holds the mortgagee’s rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or(c) To authorize the mortgagee of a railway, canal or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or(d) To authorize a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.

67A. Mortgagee when bound to bring one suit on several mortgagesA mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.

68. Right to sue for mortgage money(1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely: -(a) Where the mortgagor binds himself to repay the same;(b) Where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;(c) Where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;(d) Where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor: Provided that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

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(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the Court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.

69. (1) Power of sale when valid A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section, have power to sell or concur in selling the mortgaged property, or any part thereof, in default of payment of the mortgage-money, without the intervention of the Court, in the following cases and in no others, namely: -(a) Where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Muhammadan or Buddhist [or a member of any other race, sect, tribe or class from time to time specified in this behalf by [the State Government], in the Official Gazette];(b) Where [a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgagee is [the Government];(c) Where [a power of sale without the intervention of the Court is expressly conferred on the mortgagee by the mortgage-deed and] the mortgaged property or any cart thereof [was, on the date of the execution of the mortgage-deed], situate within the towns of Calcutta Madras, Bombay, [or in any other town 45 or area which the State Government may, by notification in the Official Gazette, specify in this behalf

(2) No such power shall be exercised unless and until -[(a)] notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or[(b)] some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorize the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorized or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.(4) The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into Court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.(5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.]

69A. Appointment of receiver(1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof.(2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee. If no person has been so named, or if all persons named are unable or unwilling to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the Court for the appointment of a receiver, and any person appointed by the Court shall be deemed to have been duly appointed by the mortgagee. A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the Court on application made by either party and on due cause shown. A vacancy in the office of receiver may be filled in accordance with the provisions of this sub-section.(3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor; and the mortgagor shall be solely responsible for the receiver’s acts or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee.(4) The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the

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full extent of the interest which the mortgagor could dispose of, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee in accordance with the provisions of this section.(5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not.(6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five per cent on that gross amount, or at such other rate as the Court thinks fit to allow, on application made by him for that purpose.(7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature.(8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all money received by him as follows, namely, -(i) In discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property;(ii) In keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver;(iii) In payment of his commission, and of the premiums on fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee;(iv) In payment of the interest falling due under the mortgage;(v) In or towards discharge of the principal money, if so directed in writing by the mortgagee; and shall pay the residue, if any, of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.(9) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8) inclusive may be varied or extended by the mortgage-deed, and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said sub-sections.(10) Application may be made, without the institution of a suit, to the Court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the Court for summary disposal. A copy of such application shall be served upon, and the hearing thereof may be attended by, such of the persons interested in the application as the Court may think fit. The costs of every application under this sub-section shall be in the discretion of the Court.(11) In this section, “the Court” means the Court which would have jurisdiction in a suit to enforce the mortgage.

70. Accession to mortgaged propertyIf, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.Illustrations(a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase.(b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security, B is entitled to the house as well as the plot.71. Renewal of mortgaged leaseWhen the mortgaged property is a lease and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.

72. Rights of mortgagee in possession[A mortgagee] may spend such money as is necessary -(b) For [the preservation of the mortgaged property] from destruction, forfeiture or sale;(c) For supporting the mortgagor’s title to the property;(d) For making his own title thereto good against the mortgagor; and(e) When the mortgaged property is a renewable lease-hold, for the renewal of the lease; and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and, where no such rate is fixed, at the rate of nine per cent per annum:

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Provided that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title.] Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property; and the premiums paid for any such insurance shall be 60[added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent. per annum]. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured. Nothing in this section shall be deemed to authorize the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amount in which the mortgagee is hereby authorized to insure.

73. Right to proceeds of revenue sale or compensation on acquisition(1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears of revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale proceeds remaining after payment of the arrears and of all charges and deductions directed by law.(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894), or any other enactment for the time being in force providing for the compulsory acquisition of immoveable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.(3) Such claims shall prevail against all other claims except those of prior encumbrancers, and may be enforced notwithstanding that the principal money on the mortgage has not become due.

76. Liabilities of mortgagee in possessionWhen, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, -(a) He must manage the property as a person of ordinary prudence would manage it if it were his own;(b) He must use his best endeavours to collect the rents and profits thereof;(c) He must, in the absence of a contract to the contrary, out of the income of the property, pay the Government revenue, all other charges of a public nature [and all rent] accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold;(d) He must, in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause(c) And the interest on the principal money;(e) He must not commit any act which is destructive or permanently injurious to the property;(f) Where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgage-money;(g) He must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported;(h) His receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses 63[properly incurred for the management of the property and the collection of rents and profits and the other expenses] mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor;(i) When the mortgagor tenders, or deposits in manner hereinafter provided, the amount for the time being due on the mortgage, the mortgage must, notwithstanding the provisions in the other clauses of this section, account for his receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of Court, as the case may be 66[and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property]. Loss occasioned by his default If the mortgagee fail to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter, be debited with the loss, if any, occasioned by such failure.

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77. Receipts in lieu of interestNothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal. Priority78. Postponement of prior mortgageeWhere, through the fraud, misrepresentation or gross neglect of a prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.79. Mortgage to secure uncertain amount when maximum is expressedIf a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.IllustrationA mortgage Sultanpur to his bankers, B & Co., to secure the balance of his account with them to the extent of Rs. 10,000. A then mortgages Sultanpur to C, to secure Rs. 10,000, C having notice of the mortgage to B & Co., and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs. 10,000. B & Co. are entitled, to the extent of Rs. 10,000, to priority over C.

81. Marshalling securitiesIf the owner of two or more properties mortgages them to one person and them mortgages one or more of the properties to another person, the subsequent mortgagee is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.

82. Contribution to mortgage-debtWhere property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of the former debt from the value of the property out of which it has been paid. Nothing in this section applies to a property liable under section 81 to the claim of the mortgagee.

83. Power to deposit in Court money due on mortgageAt any time after the principal money 70[payable in respect of any mortgage has become due] and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any Court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.Right to money deposited by mortgagorThe Court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law71 for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same Court the mortgage-deed and all documents in his possession or power relating to the mortgaged property], apply for and receive the money, and the mortgage-deed [and all such other documents] so deposited shall be delivered to the mortgagor or such other person as aforesaid. Where the mortgagee is in possession of the mortgaged property, the Court shall, before paying to him the amount so deposited, direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgment in writing

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that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished.

84. Cessation of interestWhen the mortgagor or such other person as aforesaid has tendered or deposited in Court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or 75[in the case of a deposit, where no previous tender of such amount has been made] as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of Court, 76[and the notice required by section 83 has been served on the mortgagee:Provided that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.] Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to reasonable notice before payment or tender of the mortgage-money 77[and such notice has not been given before the making of the tender or deposit, as the case may be

Suits for Foreclosure, Sale or Redemption91. Persons who may sue for redemptionBesides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely: -(a) Any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;(b) Any surety for the payment of the mortgage-debt or any part thereof; or(c) Any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

92. SubrogationAny of the persons referred to in section 91 (other than the mortgagor) and any comortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.A person who has advanced to mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated.Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.

93. Prohibition of tackingNo mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.94. Rights of mesne mortgageeWhere a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagee’s posterior to himself as he has against the mortgagor.]95. Right of redeeming co-mortgagor to expensesWhere one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage-money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.96. Mortgage by deposit of title-deedsThe provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.

100. ChargesWhere immoveable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is

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said to have a charge on the property; and all the provisions hereinbefore contained [which apply to a simple mortgage shall, so far as may be, apply to such charge].Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, 86[and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge

101. No merger in case of subsequent encumbranceAny mortgagee of or person having a charge upon, immoveable property, or any transferee from such mortgagee or charge holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.

Notice and Tender102. Service or tender on or to agentWhere the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power-of-attorney from such person or otherwise duly authorized to accept such service or tender shall be deemed sufficient.Where no person or agent on whom such notice should be served can be found or is known] to the person required to serve the notice, the latter person may apply to any Court in which a suit might be brought for redemption of the mortgaged property, and such Court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:Provided that, in the case of a notice required by section 83, in the case of a deposit, the application shall be made to the Court in whom the deposit has been made.][Where no person or agent to whom such tender should be made can be found or is known] to the person desiring to make the tender, the latter person may deposit [in any Court in which a suit might be brought for redemption of the mortgaged property] the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.

103. Notice, etc., to or by person incompetent to contractWhere, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of Court by, any person incompetent to contact, such notice may be served [on or by], or tender or deposit made, accepted or taken by, the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interests of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any Court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of Court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract93; and the provisions of [Order XXXII in the First Schedule to the Code of Civil Procedure, 1908 (5 of 1908)] shall, so far as may be, apply to such application and to the parties thereto and to the guardian appointed thereunder.

104. Power to make rulesThe High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Courts of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.

Leases of Immoveable Property105. Lease definedA lease of immoveable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.Lessor, lessee, premium and rent defined The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

106. Duration of certain leases in absence of written contract or local usage

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In the absence of a contract or local law or usage to the contrary, a lease of immoveable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immoveable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy.Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party], or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

107. Leasees how madeA lease of immoveable property from year to year, or for any term exceeding one year, or reserving a yearly rent, can be made only by a registered instrument.All other leases of immoveable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession. [Where a lease of immoveable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:]Provided that the State Government may from time to time, by notification in the Official Gazette, direct that leases of immoveable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

108. Rights and liabilities of lessor and lesseeIn the absence of a contract or local usage to the contrary, the lessor and the lessee of immoveable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased: -(A) Rights and Liabilities of the Lessor(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover:(b) The lessor is bound on the lessee’s request to put him in possession of the property:(c) The lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.(B) Rights and Liabilities of the Lessee(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease:(e) If by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:Provided that, if the injury be occasioned by the wrongful act or default of the lessee, he shall not be entitled to avail himself of the benefit of this provision:(f) If the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee maymake the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor:(g) If the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor: (h) The lessee may 6[even after the determination of the lease] remove, at any time 7[whilst he is in possession of the property leased but not afterwards] all things which he has attached to the earth; provided he leaves the property in the state in which he received it:(i) When a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them:(j) The lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease:

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Nothing in this clause shall be deemed to authorize a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee:(k) The lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take, of which the lessee is, and the lessor is not, aware, and which materially increases the value of such interest:(l) The lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf:(m) The lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left:(n) If the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor:(o) The lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell [or sell] timber, pull down or damage buildings [belonging to the lessor, or] work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto:(p) He must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes:(q) On the determination of the lease, the lessee is bound to put the lessor into possession of the property.

109. Rights of lessor’s transfereeIf the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer, cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.

110. Exclusion of day on which term commencesWhere the time limited by a lease of immoveable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.Duration of lease for a yearWhere the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.Option to determine leaseWhere the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

111. Determination of leaseA lease of immoveable property determines -(a) By efflux of the time limited thereby: (b) Where such time is limited conditionally on the happening of some event – by the happening of such event:(c) Where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event - by the happening of such event:

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(d) In case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right:(e) By express surrender; that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them:(f) By implied surrender:(g) By forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter ; or (2) In case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) The lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event]; and in [any of these cases] the lessor or his transferee [gives notice in writing to the lessee of] his intention to determine the lease:(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.Illustration to clause (f)A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

112. Waiver of forfeitureForfeiture under section 111, clause (g), is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:Provided that the lessor is aware that the forfeiture has been incurred:Provided also that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

113. Waiver of notice to quitA notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.Illustrations(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders, and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.

114. Relief against forfeiture for non-payment of rentWhere a lease of immoveable property has determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the Court thinks sufficient for making such payment within fifteen days, the Court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.

114A. Relief against forfeiture in certain other casesWhere a lease of immoveable property has determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing(a) Specifying the particular breach complained of; and(b) If the breach is capable of remedy, requiring the lessee to remedy the breach; and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy. Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.

115. Effect of surrender and forfeiture on under-leasesThe surrender, express or implied, of a lease of immoveable property does not prejudice an under-lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the under-lessee shall be respectively payable to and enforceable by the lessor.

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The forfeiture of such a lease annuls all such under-leases, except where such forfeiture has been procured by the lessor in fraud of the under-lessees, or relief against the forfeiture is granted under section 114.

116. Effect of holding overIf a lessee or under-lessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or under-lessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.Illustrations(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A.C’s lease is renewed from month to month.(b) A lets a farm to B for the life of C.C dies, but B continues in possession with A’s assent. B’s lease is renewed from year to year.

117. Exemption of leases for agricultural purposesNone of the provisions of this Chapter apply to leases for agricultural purposes, except in so far as the State Government may by notification published in the Official Gazette declare all or any of such provisions to be so applicable [in the case of all or any of such leases], together with, or subject to, those of the local law, if any, for the time being in force.Such notification shall not take effect until the expiry of six months from the date of its publication.

Exchanges118. “Exchange” definedWhen two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

119. Right of party deprived of thing received in exchangeIf any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.

120. Rights and liabilities of partiesSave as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.121. Exchange of moneyOn an exchange of money, each party thereby warrants the genuineness of the money given by him.

Gifts 122. “Gift” defined“Gift” is the transfer of certain existing moveable or immoveable property made voluntarily and without consideration, by one person, called the donor, to another, called the done, and accepted by or on behalf of the done.Acceptance when to be madeSuch acceptance must be made during the lifetime of the donor and while he is still capable of giving.If the done dies before acceptance, the gift is void.123. Transfer how effectedFor the purpose of making a gift of immoveable property, the transfer must be affected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.For the purpose of making a gift of moveable property, the transfer may be affected either by a registered instrument signed as aforesaid or by delivery. Such delivery may be made in the same way as goods sold may be delivered.124. Gift of existing and future propertyA gift comprising both existing and future property is void as to the latter.

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125. Gift to several of whom one does not acceptA gift of a thing to two or more donees, of which one does not accept it, is void as to the interest which he would have taken had he accepted.

126. When gift may be suspended or revokedThe donor and done 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. A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded. Save as aforesaid, a gift cannot be revoked. Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.Illustrations(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds good as to Rs. 90,000, but is void as to Rs. 10,000 which continue to belong to A.

127. Onerous giftsWhere a gift is in the form of a single transfer to the same person of several things of which one is, and the others are not, burdened by an obligation, the done can take nothing by the gift unless he accepts it fully. Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the done is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.Onerous gift to disqualified personA done not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.Illustrations(a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.(b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.

128. Universal doneSubject to the provisions of section 127, where a gift consists of the donor’s whole property, the done is personally liable for all the debts due by 3[and liabilities of] the donor at the time of the gift to the extent of the property comprised therein.129. Saving of donations mortis causa and Muhammadan lawNothing in this Chapter relates to gifts of movable property made in contemplation of death, or shall be deemed to affect any rule of Muhammadan law

Transfers of Actionable Claims130. Transfer of actionable claim(1) The transfer of an actionable claim 2[whether with or without consideration] shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorized agent, shall be complete and effectual upon the execution of such instrument, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:Provided that every dealing with the debt or other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceedings and without making him a party thereto.Exception - Nothing in this section applies to the transfer of a marine or fire policy of insurance [or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938)].

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Illustrations(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.(ii) A effects a policy on his own life with an Insurance Company and assigns it to a Bank for securing the payment of an existing or future debt. If A dies, the Bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to the provisions of section 132.131. Notice to be in writing, signedEvery notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorized in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.

132. Liability of transferee of actionable claimThe transferee of an actionable claim shall take it subject to all the liabilities and equities to which the transferor was subject in respect thereof at the date of the transfer.Illustrations(i) A transfers to C a debt due to him by B, a being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

133. Warranty of solvency of debtorWhere the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.

134. Mortgaged debtWhere a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer, and the residue, if any, belongs to the transferor or other person entitled to receive the same.

135. Assignment of rights under policy of insurance against fireEvery assignee, by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of the assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy had been made with himself.

136. Incapacity of officers connected with Courts of JusticeNo Judge, legal practitioner or officer connected with any Court of Justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no Court of Justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.

137. Saving of negotiable instruments, etc.Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods.Explanation - The expression “mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorizing or purporting to authorize, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.

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LESSON-7:-THE REGISTRATION ACT, 1908

Definitions:-1) Addition:- It’s means the place of residence, and the profession, trade, rank and title (if any) of a person described, and in the case of an Indian his father’s name, or where he is usually described as the son of his mother, then his mother’s name;(2) Book:- Includes a portion of a book and also any number of sheets connected together with a view of forming a book or portion of a book;(3) “District and” “Subdistrict”:- respectively mean a district and subdistrict formed under this Act;(4)District court: - includes the High Court in its ordinary original civil jurisdiction;(5) Endorsement” and “endorsed:- include and apply to an entry in writing by a Registering Officer on a rider or covering slip to any document tendered for registration under this Act;(6) Immovable property:- Includes land, building, hereditary allowances, right to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the earth or permanently fastened to anything which is attached to the earth but not standing timber, growing crops nor grass;(6A) India: - Means the territory of India excluding the State of Jammu and Kashmir;(7) Lease: - Includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;(8) Minor: - Means a person who, according to the personal law to which he is subject, has not attained majority;(9) Movable property:- Includes standing timber, growing crops and grass, fruit upon and juice in trees, and property to every other description, except immovable property; and(10) Representative:- Includes the guardian of a minor and the committee or other legal curator of a lunatic or idiot.

REGISTERABLE DOCUMENTS:-

11. Documents of which registration is compulsory(1) The following documents shall be registered, if the property to which they relate is situate in a district in which, and if they have been executed on or after the date on which, Act No. XVI of 1864, or the Indian Registration Act, 1866, (20 of 1866) or the Indian Registration Act, 1871, (7 of 1871) or the Indian Registration Act, 1877, (3 of 1877) or this Act came or comes into force, namely:(a) Instruments of gift of immovable property(b) Other nontestamentary instruments which purport or operate, to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property.(c) Nontestamentary instruments which acknowledge the receipt or payment of any consideration on account of the creation, declaration assignments, limitation or extinction of any such right, title or interest;(d) Leases of immovable property from year to year, or for any term exceeding one year, or reserving a yearly rent and(e) Nontestamentary instruments transferring or assigning any decree or order of a Court or any award when such decree or order or award purports or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of the value of one hundred rupees and upwards, to or in immovable property. Provide that the State Government may, by order published in the Official Gazette exempt from the operation of this subsection any leases executed in any district, or part of a district,n the granted by which do not exceed five years and the annual rents reserved by which do not exceed fifty rupees.(2) Nothing in clauses (b) and (c) subsection (1) applies to( i) Any composition deed; or(ii) Any instrument relating to shares in a Joint Stock Company, notwithstanding that the assets of such company consist in whole or in part of immovable property; Or(iii) Any debenture issued by any such company and not creating, declaring, assigning, limiting or extinguishing any right, title or interest, to or in immovable property except in so far as it entitles the holder to the security afforded by a registered instrument whereby the company has mortgaged, conveyed or otherwise transferred the whole or part of its immovable property or any interest therein to trustees upon trust for the benefit of the holders or such debentures; Or(iv) Any endorsement upon or transfer of any debenture issued by any such company; Or(v) Any document not itself creating, declaring, assigning, limiting or extinguishing any right, title or interest of the value of one hundred rupees and upwards, to or in immovable property, but merely

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creating a right to obtain another document which will, when executed, create, declare, assign, limit or extinguish any such right, title or interest; Or(vi) Any decree or order of a Court except a decree or order expressed to be made on a compromise and comprising immovable property other than that which is the subjectmatter of the suit or proceeding; Or(vii) Any grant of immovable property by the Government, or(viii) Any Instrument of partition made by a Revenue office; Or(xa) Any order made under the Charitable Endowments Act 1890 (VI of 1890), vesting any property in a Treasurer of Charitable Endowments or divesting any such Treasurer of any property; Or(xi) Any endowment on a mortgage deed acknowledging the payment of the whole or any part of the mortgage money, end any other receipt for payment of money due under a mortgage when the receipts does not purport to extinguish the mortgage; Or(xii) Any certificate of sale granted to the purchaser of any property sold by public auction by a Civil or Revenue Officer.Explanation:- A document purporting or operating to effect a contract for the sale of immovable property shall not be deemed to require or ever to have required registration by reason only of the fact that such document contains a recital of the payment of any earnest money or of the whole or any part of the purchase money.(3) Authorities to adopt a son, executed after the first day of January, 1872, and not conferred by a will, shall also be registered.

12. Documents of which registration is optionalany of the following documents may be registered under this Act, namely:(a) Instruments (other that instruments of gift and will) which purport or operate to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less that one hundred rupees, to or in immovable property;(b) Instruments acknowledging the receipt or payment of any consideration on account of the creation, declaration, assignment, limitation or extinction of any such right, title or interest;(c) Leases of immovable property for any term not exceeding one year, and leases exempted under section 17;(cc) Instruments transferring or assigning any decree or order of a court or any award when such decree or order or award purport or operates to create, declare, assign, limit or extinguish, whether in present or in future, any right, title or interest, whether vested or contingent, of a value less than one hundred rupees to or in immovable property;(d) Instruments (other than wills) which purport or operate to create, declare, assign limit or extinguish any right, title or interest to or in a movable property;(e) Wills; and(f) All other documents not required by section 17 to be registered

13. Documents in language not understood by Registering Officer:-If any document dulypresented for registration be in a language which the Registering Officer does not understand, and which is not commonly used in the district, he shall refuse to register the document, unless it is accompanied by a translation into a language commonly used in the district. 13A. Documents presented for registration to be accompanied by true copies thereof – (1) No document shall be accepted for registration unless it is accompanied by a true copy thereof. (2) The true copy referred to in sub section (1) shall be neatly handwritten printed, typewritten, lithographed or otherwise prepared in accordance with such rules as may be made in this behalf.

14. Documents containing interlineations, blanks, erasures or alterations:-(1) The Registering Officer may in his discretion refuse to accept for registration any document in which any interlineations, blank, erasure or alteration appears, unless the persons executing the document attest with their signatures or initials such interlineations, blank, erasure or alteration.(2) If the Registering Officer registers any such document, he shall, at the time of registering the same, make a note in the register of such interlineations, blank, erasure or alteration.(3) Other houses and lends shall be described by their name, if any, and as being in the territorial division in which they are situate, and by their superficial contents, the roads and other properties on which they abut, and their existing occupancies, and also, whenever it is practicable, by reference to a Government map or survey.(4) No nontestamentary document containing a map or plan of any property comprised there in shall be accepted for registration, unless it is accompanied by a true copy of the map or plan, or, in case such property is situate in several districts, by such number of true copies of the map or plan as are equal to the number of such districts.

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15. Description of houses and land by reference to Government maps or surveys:-(1) Where it is, in the opinion of the State Government, practicable to describe houses, not being houses in towns, and lands by reference to a Government map or survey, the State Government may, by rule made under this Act, require that such houses and lands as aforesaid shall, for the purpose of section 21, be so described.(2) Save as otherwise provided by any rule made under subsection (1) failure to comply with the provisions of section 21, subsection (2) or sub section (3), hall not disentitle a document to be registered if the description of the property to which it relates is sufficient to identify that property.

THE TIME OF PRESENTATION:-16. Time for presenting documentssubject to the provisions contained in sections 24, 25 and 26, no document other than a will shall be accepted for registration unless presented for that purpose to the proper officer within four months from the date of its execution: Provided that a copy of decree or order may be presented within four months from the day on which the decree or order was made, or, where it is apealable, within four months from the day on which it becomes final.

16A. Reregistration of certain documents:Notwithstanding anything to the contrary contained in this Act, if in case a document requiring registration has been accepted for registration by a Registrar or sub Registrar from a person not duly empowered to present the same, and has been registered, any person claiming under such document may, within four months from his first becoming aware that the registration of such document is invalid, present such document or cause the same to be presented, in accordance with the provisions of Part VI for reregistration in the office of the Registrar of the district in which the document was originally registered; and upon the Registration being satisfied that the document was so accepted for registration from a person not duly empowered to present the same, he shall proceed to reregistration of the document as if it had not been previously registered, and as if such presentation for reregistration was a presentation for registration made within the time allowed therefore under Part IV, and all the provisions of this Act, as to registration of documents, shall apply to such reregistration; And such document, if duly reregistered in accordance with the provisions of this section, shall be deemed to have been duly registered for all purposes from the date of its original registration. Provide that, within three months from the twelfth day of September, 1917, any person claiming under a document to which this section applies may present the same or cause the same to be presented for reregistration in accordance with this section, whatever may have been the time when he first became aware that the registration of the document was invalid.

17. Documents executed by several persons at different times, Where there are 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.

18. Provision where delay in presentation us unavoidable:- (1) if, owing to urgent necessity or unavoidable accident, any document executed, or copy of a decree or order made, in India is not presented for registration till after the expiration of the time herein before prescribed in that behalf, the Registrar, in cases where the delay in presentation does not exceed four months, may direct that on payment of a fine not exceeding ten times the amount of the proper registration fee, such document shall be accepted for registration.(2) Any application for such direction may be lodged with a SubRegistrar, who shall forthwith forward it to the Registrar to whom he is subordinate.19. Document executed out of India when a document purporting to have been executed by all or any of the parties out of India is not presented for registration till after the expiration of the time herein before prescribed in that behalf, the Registering Officer, if satisfied(a) That the instrument was so executed, and(b) That it has been presented for registration within four months after its arrival in India, may on payment of the proper registration fee accept such document for registration.

20. Wills may be presented or deposited at any time a will may at any time be presented for registration or deposited in manner hereinafter provided.

THE PLACE OF REGISTRATION:-21. Place for registering documents relating to land – Save as in this part otherwise provided, every document mentioned in section 17, sub section (1), clauses (a), (b), (c), (d) and (e), section 17, sub section (2) in so far as such documents affects immovable property and section 18, clauses (a), (b), (c)

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and (cc) shall be presented for registration in the office of a SubRegistrar within whose sub district the whole or some portion of the property to which such document relates is situate.

22. Place for registering other documents:-(1) Every document not being a document referred to in section 28, or a copy of a decree or order may be presented for registration either in the office of the subregistrar in whose sub district the document was executed, or in the office of any other SubRegistrar under the State Government at which all the persons executing and claiming under the documents desire the same to be registered.(2) A copy of a decree or order may be presented for registration in the office of the SubRegistrar in whose subdistrict the original decree or order was made, or where the decree or order does not affect immovable property, in the office of any other SubRegistrar under the State Government at which all the persons claiming under the decree or order desire the copy to be registered.

23. Registration by Registrars in certain cases:-(1) Any Registrar may in his discretion receive and register any document with might be registered by any subregistrar subordinate to him.(2) The Registrar of a district in which a Presidency town is included and the Registrar of the Delhi District 3 may receive and register any document referred to in section 28 without regard to the situation in any part of India of the property to which the document relates.

24. Registration or acceptance for deposit at private residence in ordinary cases the registration or deposit of documents under this Act shall be made only at the office of the officer authorized to accept the same of registration or deposit.(b) If in the case of any person appearing by a representative, assign or agent, admits the execution, or(c) If the person executing the document is dead, and his representative or assign appears before the Registering Officer and admits the execution, the Registering Officer shall register the document as directed in sections 58 to 61, inclusive.(2) The Registering Officer may, in order to satisfy himself that the persons appearing before him are the persons they represent themselves to be, or for any other purpose contemplated by this Act, examine any one present in his office.(3) (a) If any person by whom the document purpose to be executed denies its execution, or(b) If nay such person appears to the Registering Officer to be a minor, an idiot or a lunatic, or Substituted by Act 45 of 1969. Registration (Amendment) Act, 1969 Presidency towns means Madras, Bombay, and Calcutta, (c) if any person by whom the document purports to be executed is dead, and his representative or assign denies its execution, the Registering Officer shall refuse to register the document as to the persons so denying, appearing or dead: Provided that, where such officer is a Register, he shall follow the procedure prescribed in Part XII; Provided further that the State Government may by notification in the Official Gazette declare that any SubRegistrar named in the notification shall, in respect of documents the execution of which is denied, be deemed to be a Register for the purposes of this subsection and of Part XII

ENFORCING THE APPEARANCE OF EXECUTANTS AND WITNESSES:-25. Procedure where appearance of executant or witness is desired – if any document, which is capable of being so presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such document, the Registering Officer may, in his discretion, call upon such officer or court as the State Government directs in his behalf to issue a summons requiring him to appear at the registration office, either in person or by duly authorized agent, as in the summons may be mentioned, and at a time named therein.

26. Officer or Court to issue and cause service of summons:The officer or court, upon receipt of the peon’s fee payable in such cases, shall issue the summons accordingly, and cause it to be served upon the person whose appearance is so required.

27. Persons exempt from appearance at registration office(1) (a) A person who by reason of bodily infirmity is unable without risk or serious inconvenience to appear at the registration office, or(b) A person in jail under civil or criminal process, or(c) Persons exempt by law from personal appearance in court, and who would but for the provision next hereinafter contained be required to appear in person at the registration office, shall not be required so to appear.

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(2) In the case of every such person the Registering Officer shall either himself go to the house of such person, or to the jail in which he is confined, and examine him or issue a commission for his examination.39. Law as to summonses, commission and witnesses.The law in force for the time being as to summonses, commissions and compelling the attendance of witnesses, and for their remuneration in suits before civil courts, shall, save as aforesaid and mutatis mutandis, apply to any summons or commission issued and any person summoned to appear under the provisions of this Act.

PRESENTING WILLS AND AUTHORITIES TO ADOPT:-28. Persons entitled to present wills and authorities to adopt.(1) The testator, or after his death any person claiming as executor or otherwise under a will, may present it to any Registrar or SubRegistrar for registration.(2) The donor, or after his death donee, of any authority to adopt, or the adoptive son, may present it to any Registrar or SubRegistrar for registration.29. Registration of wills and authorities to adopt. – (1) A will or an authority to adopt, presented for registration by the testator or donor may be registered in the same manner as any other document.(2) A will or authority to adopt presented for registration by any other person entitled to present it shall be registered if he Registering Officer is satisfied(a) That the will or authority was executed by the testator or donor as the case may be;(b) That the testator or donor is dead; and(c) That the person presenting the will or authority is, under section 40, entitled to present the same.

THE DEPOSIT OF WILLS:-30. Deposit of wills.Any testator may, either personally or by duly authorized agent, deposit with any Registrar his will in a sealed cover superscribed with the name of the testator and that of his agent (if any) and with a statement of the nature of the document.31. Procedure on deposit of wills.(1) On receiving such cover, the Registrar, if satisfied that the person presenting the same for deposit is the testator or his agent, shall transcribe in his register book

AS TO THE PROCEDURE ON ADMITTING TO REGISTRATION

32. Particulars to be endorsed on documents admitted to registration – (1) On every document admitted to registration, other than a copy of a decree or order, or a copy sent to a Registering Officer under section 89, there shall be endorsed from time to time the following particulars, namely:(a) the signature and addition of every person admitting the execution of the document, and if such execution has been admitted by the representative, assign or agent of any person, the signature and addition of such representative, assign or agent;(b) The signature and addition of every person examined in reference to such document under any of the provisions of this Act; and(c) Any signature of money or delivery of goods made in the presence of the Registering Officer in reference to the execution of the document and any admission of receipt of consideration, in whole or in part, made in his presence in reference and execution.(2) If any person admitting the execution of document refuses to endorse the same, the Registering Officer shall nevertheless register it, but shall at the same time endorse a note of such refusal.

33. Endorsements to be dated and signed by Registering Officer.The Registering Officer shall affix the date and his signature to all endorsements made under section 52 and 58, relating to the same document and made in his presence on the same day

34. Certificate of registration( 1) After such of the provisions of sections 34,35, 58 and 59 as apply to any document presented for registration have been complied with, the Registering Officer with the number and page of the book in which [the true copy of the document has been file.(2) Such certificate shall be signed, sealed and dated by the Registering Officer, and shall then be admissible for the purpose of proving that the document has been duly registered in manner provided by this Act, and that the facts mentioned in the endorsement referred to in section 59 have occurred as therein mentioned.

35. Endorsements and certificate to be copied and document returned(1) The endorsement and certificate referred to and mentioned in sections 59 and 60 shall thereupon be copied into the true copy of the document presented along with the document, and the true copy of the

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map or plan (if any) mentioned in section 21 shall also be filed along with the true copy of the document”.(2) The registration of the document shall thereupon be deemed complete, and the document shall than be returned to the person who presented the same for registration, or to such other person (if any) as he has nominated in writing in that behalf on the receipt mentioned in section 52.36. Procedure on presenting document in language unknown to Registering Officer:-(1) “When a document is presented for registration under section 19, the translation together with the true copy of the document shall be filed in the appropriate book.” (2) The endorsement and certificate respectively mentioned in sections 59 and 60 shall be made on the original, and for the purpose of making the copies and memoranda required by sections 57, 64, 65 and 66, the transaction shall be treated a if it were the original.

37. Power to administer oaths and record of substance of statement: (1) Every Registering Officer may at his discretion administer an oath to any person examined by him under the provision of his Act.(2) Every such officer may also at his discretion record a note of the substance of the statement made by each such person, and such statement shall be read over, or (if made in a language with which such person is not acquainted) interpreted to him in a language with which he is acquainted, and if he admits the correctness of such note, it shall be signed by the Registering Officer.(3) Every such note so signed shall be admissible for the purpose of proving that the statements therein recorded were made by the persons and under the circumstances therein stated.

REFUSAL TO REGISTER:-38. Reasons for refusal to register to be recorded (1) Every SubRegistrar refusing to register a document except on the ground that the property to which it relates is not situate within his subdistrict, shall make an order of refusal and record his reasons for such order in his book No. 2 and endorse the words “registration refused” on the document; and, on application made by any person executing or claiming under the document, shall without payment and unnecessary delay, give him a copy of the reasons so recorded.(2) No Registering Officer shall accept for registration a document so endorsed unless and until, under the provisions hereinafter contained the document is directed to be registered.

39. Appeal to Registrar from orders of SubRegistrar refusing registration on ground other than denial of execution – (1) Except where the refusal is made on the ground of denial of execution, an appeal shall lie against an order of a SubRegistrar refusing to admit a document to registration (whether the registration of such document is compulsory or optional) to the Registrar to whom such SubRegistrar is subordinate, if presented to such Registrar within thirty days from the date of the order: and the Registrar may reverse or alter such order.(2) If the order of the Registrar directs the document to be registered and the document is duly presented for registration within thirty days after the making of such order, the SubRegistrar shall obey the same, and thereupon shall, so far as may be practicable follow the procedure prescribed in sections 58, 59 and 60; and such registration shall take effect as if the document and had been registered when it was first duly presented for registration.

40. Application to Registrar where SubRegistrar refuses to register on ground of denial of execution – (1) When a subregistrar has refused re register a document on the ground that any person by whom it purports to be executed, or his representative or assign, denies its execution, any person claiming under such document, or his representative, assign or agent authorized as aforesaid, may within thirty days after the making of the order of refusal, apply to the Registrar to whom such subRegistrar is subordinate in order to establish his right to have the document registered.(2) Such application shall be in writing and shall be accompanied by a copy of the reasons recorded under section 71, and the statements in the application shall be verified by the applicant in manner required by law for the verification of plaints,

41. Procedure of Registrar on such application – In such case, and also where such denial asaforesaid is made before a Registrar in respect of a document presented for registration to him, the Registrar shall, as soon as conveniently may be, enquire(a) Whether the document has been executed:

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(b) Whether the requirements of the law for the time being in force have been complied with on the part of the applicant or person presenting the document for registration, as the case may be, so as to entitle the document to registration.42. Order by Registrar to register and procedure thereon – (1) If the Registrar finds that the document has been executed and that the said requirements have been complied with, he shall order the document to be registered.(2) If the document is duly presented for registration within thirty days after the making of such order, the Registering Officer shall obey the same and thereupon shall, so far as may be practicable, follow the procedure prescribed in sections 58, 59 and 60.(3) Such registration shall take effect as if the document had been registered when it was first duly presented for registration.(4) The Registrar may, for the purpose of any enquiry under section74, summon and enforce the attendance of witnesses; and compel them to give evidence, as if he were a civil court, and he may also direct by whom the whole or any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded in a suit under the Code of Civil Procedure. 1908

43. Order of refusal by Registrar – (1) Every Registrar refusing –(a) to register a document except on the ground that the property to which it relates is not situate within his district or that the document ought to be registered in the office of a SubRegistrar, or(b) to direct the registration of a document under section 72 or section 75m Shall make an order of refusal and record the reasons for such order in his book No. 2, and, on application made by any person executing or claiming under the document, shall without unnecessary delay, give him a copy of the reasons so recorded.(2) No appeal lies from any order by a Registrar under this section, or section 72. 77. Suit in case of order of refusal by Registrar – (1) where the Registrar refuses to order the document to be registered, under section 72 or section 76, any person claiming under such document, or his representative, assign or agent, any, within thirty days after the making of the order of refusal, institute in the civil court, within the local limits of whose original jurisdiction is situate the office in which the document to be registered in such office if it be duly presented for registration within thirty days after the passing of such decree.(3) The provisions contained in subsections (2) and (3) of section 75 shall, mutatis mutandis, apply to all documents presented for registration in accordance with any such decree, and, notwithstanding anything contained in this Act, the document shall be receivable in evidence in such suit.

UNCLAIMED DOCUMENTS:-44. In every registration office, a register shall be maintained to show all document register or refused registration which has been lying unclaimed for over fifteen days and an abstract of the outstanding entries in this register shall every quarter year be exposed to public view in the office. Every year in September, a list of all such documents which are to be destroyed in the succeeding year shall be published in the Gazette. A copy of this list shall also be exhibited on the notice board of the office.45. The two years mentioned in section 85 shall be reckoned from the date of registration or refusal for registration as the case may be. In calculating the period the date of registration or refusal shall be excluded.46 (a) No document of which the destruction is authorized by section 85 shall be destroyed without the previous sanction of the Registrar and until a notice has been issued in writing to the party, entitled to receive the document informing him of the destruction that is to take place.(b) When a document the registration of which has been refused is destroyed a similar note shall be recorded in Book 2.(c) In each case, the note shall record the fact that the document has been destroyed under the sanction of the Registrar and after notice duly issued to the party concerned. It shall be initialed and dated by the Registering Officer.

INSPECTION AND ENQUIRIES:-47 (i) Each SubRegistry Office shall be inspected by the Registrar twice in each official year, unless for special reasons the InspectorGeneral orders otherwise.(ii) The Registrar shall record the results of his inspection in two parts. Part I shall contain omissions and irregularities of sufficient importance to be brought to the notice of the InspectorGeneral of Registration, Part II shall contain all other defects which could be rectified under the orders of the Registrar.(iii) Part I of the report shall be submitted by the Registrar, to the inspectorGeneral Of Registration with his further remarks on the explanations of the SubRegistrars.(iv) The Inspection notes shall be dealt with in the manner prescribed by the InspectorGeneral of Registration from time to time.48. (i) A Registrar shall not as a rule, require a SubRegistrar to report officially on any anonymous petition or a petition which is obviously pseudonymous. He may however ascertain whether there is any

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truth in such a petition and if he is satisfied that it is based on truth he shall submit a report to the InspectorGeneral and abide by his orders.(ii) When a petition against a SubRegistrar or any of his subordinates is found to be genuine so far as the signatures are concerned the Registrar shall hold a preliminary enquiry and submit a report to the InspectorGeneral.(iii) No formal enquiry shall in any case be undertaken without the previous sanction of the InspectorGeneral of Registration.

LESSON-8:- THE SPECIFIC RELIEF ACT, 1963Definitions.- (a) Obligation:- Includes every duty enforceable by law;(b) Settlement:- Means an instrument (other than a will or codicil as defined by the Indian Succession Act, 1925 (39 of 1925)) whereby the destination or devolution of successive interests in movable or immovable property is disposed of or is agreed to be disposed of;(c) Trust:- has the same meaning as in section 3 of the Indian Trusts Act, 1882 (2 of 1882), and includes an obligation in the nature of a trust within the meaning of Chapter IX of that Act;(d) Trustee:- Includes every person holding property in trust;3. Savings.- Except as otherwise provided herein, nothing in this Act shall be deemed-(a) to deprive any person of any right to relief, other than specific performance, which he may have under any contract; or (b) to affect the operation of the Indian Registration Act, 1908 (16 of 1908), on documents. Specific relief to be granted only for enforcing individual civilrights and not for enforcing penal laws.4. Specific relief to be granted only for enforcing individual civil rights and not for enforcing penal laws.-Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law. Recovery of specific immovable property.5. Recovery of specific immovable property.-A person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).6. Suit by person dispossessed of immovable property.-(1) If any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may, by suit, recover possession thereof, notwithstanding any other title that may be set up in such suit.(2) No suit under this section shall be brought-(a) After the expiry of six months from the date of dispossession; or(b) Against the Government.(3) No appeal shall lie from any order or decree passed in any suit instituted under this section, nor shall any review of any such order or decree be allowed.(4) Nothing in this section shall bar any person from suing to establish his title to such property and to recover possession thereof.

7. Recovery of specific movable property.- A person entitled to the possession of specific movable property may recover it in the manner provided by the Code of Civil Procedure, 1908 (5 of 1908).Explanation 1.-A trustee may sue under this section for the possession of movable property to the beneficial interest in which the person for whom he is trustee is entitled.Explanation 2.-A special or temporary right to the present possession of movable property is sufficient to support a suit under this section.

8. Liability of person in possession, not as owner, to deliver to persons entitled to immediate possession.- Any person having the possession or control of a particular article of movable property, of which he is not the owner, may be compelled specifically to deliver it to the person entitled to its immediate possession, in any of the following cases:-(a) When the thing claimed is held by the defendant as the agent or trustee of the plaintiff;(b) When compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;(c) When it would be extremely difficult to ascertain the actual damage caused by its loss;(d) When the possession of the thing claimed has been wrongfully transferred from the plaintiff.Explanation.-Unless and until the contrary is proved, the court shall, in respect of any article of movable property claimed under clause (b) or clause (c) of this section, presume-(a) That compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed, or, as the case may be;(b) That it would be extremely difficult to ascertain the actual damage caused by its loss.

SPECIFIC PERFORMANCE OF CONTRACTS

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9. Defences respecting suits for relief based on contract.-Except as otherwise provided herein, where any relief is claimed under this Chapter in respect of a contract, the person against whom the relief is claimed may plead by way of defence any ground which is available to him under any law relating to contracts.

CONTRACTS WHICH CAN BE SPECIFICALLY ENFORCED10. Cases in which specific performance of contract enforceable.-Except as otherwise provided in this Chapter, the specific performance of any contract may, in the discretion of the court, be enforced-(a) when there exists no standard for ascertaining the actual damage caused by the non-performance of the act agreed to be done; or(b) when the act agreed to be done is such that compensation in money for its non-performance would not afford adequate relief.Explanation.-Unless and until the contrary is proved, the court shall presume-(i) That the breach of a contract to transfer immovable property cannot be adequately relieved by compensation in money; and(ii) That the breach of a contract to transfer movable property can be so relieved except in the following cases:-(a) Where the property is not an ordinary article of commerce, or is of special value or interest to the plaintiff, or consists of goods which are not easily obtainable in the market;(b) Where the property is held by the defendant as the agent or trustee of the plaintiff.

11. Cases in which specific performance of contracts connected with trusts enforceable.-(1) Except as otherwise provided in this Act, specific performance of a contract may, in the discretion of the court, be enforced when the act agreed to be done is in the performance wholly or partly of a trust.(2) A contract made by a trustee in excess of his powers or in breach of trust cannot be specifically enforced.

12. Specific performance of part of contract.- (1) Except as otherwise hereinafter provided in this section, the court shall not direct the specific performance of a part of a contract.(2) Where a party to a contract is unable to perform the whole of his part of it, but the part which must be left unperformed bears only a small proportion to the whole in value and admits of compensation in money, the court may, at the suit of either party, direct the specific performance of so much of the contract as can be performed, and award compensation in money for the deficiency.(3) Where a party to a contract is unable to perform the whole of his part of it, and the part which must be left unperformed either-(a) Forms a considerable part of the whole, though admiting of compensation in money; or(b) Does not admit of compensation in money; he is not entitled to obtain a decree for specific performance; but the court may, at the suit of the other party, direct the party in default to perform specifically so much of his part of the contract as he can perform, if the other party-(i) In a case falling under clause (a), pays or has paid the agreed consideration for the whole of the contract reduced by the consideration for the part which must be left unperformed and in a case falling under clause(b) Pays or has paid] the consideration for the whole of the contract without any abatement; and(ii) In either case, relinquishes all claims to the performance of the remaining part of the contract and all right to compensation, either for the deficiency or for the loss or damage sustained by him through the default of the defendant.(4) When a part of a contract which, taken by itself, can and ought to be specifically performed, stands on a separate and independent footing from another part of the same contract which cannot or ought not to be specifically performed, the court may direct specific performance of the former part.Explanation.-For the purposes of this section, a party to a contract shall be deemed to be unable to perform the whole of his part of it if a portion of its subject-matter existing at the date of the contract has ceased to exist at the time of its performance.

13. Rights of purchaser or lessee against person with no title or imperfect title. (1) Where a person contracts to sell or let certain immovable property having no title or only an imperfect title, the purchaser or lessee (subject to the other provisions of this Chapter), has the following rights, namely:-(a) if the vendor or lessor has subsequently to the contract acquired any interest in the property, the purchaser or lessee may compel him to make good the contract out of such interest;(b) where the concurrence of other persons is necessary for validating the title, and they are bound to concur at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such concurrence, and when a conveyance by other persons is necessary to validate the title and they are

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bound to convey at the request of the vendor or lessor, the purchaser or lessee may compel him to procure such conveyance;(c) where the vendor professes to sell unencumbered property, but the property is mortgaged for an amount not exceeding the purchase money and the vendor has in fact only a right to redeem it, the purchaser may compel him to redeem the mortgage and to obtain a valid discharge, and, where necessary, also a conveyance from the mortgagee;(d) where the vendor or lessor sues for specific performance of the contract and the suit is dismissed on the ground of his want of title or imperfect title, the defendant has a right to a return of his deposit, if any, with interest thereon, to his costs of the suit, and to a lien for such deposit, interest and costs on the interest, if any, of the vendor or lessor in the property which is the subject-matter of the contract.(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

CONTRACTS WHICH CANNOT BE SPECIFICALLY ENFORCED14. Contracts not specifically enforceable.-(1) The followingcontracts cannot be specifically enforced, namely:--(a) A contract for the non-performance of which compensation in money is an adequate relief;(b) A contract which runs into such minute or numerous details or which is so dependent on the personal qualifications or volition of the parties, or otherwise from its nature is such, that the court cannot enforce specific performance of its material terms;(c) A contract which is in its nature determinable;(d) A contract the performance of which involves the performance of a continuous duty which the court cannot supervise.(2) Save as provided by the Arbitration Act, 1940 (10 of 1940), no contract to refer present or future differences to arbitration shall be specifically enforced; but if any person who has made such a contract (other than an arbitration agreement to which the provisions of the said Act apply) and has refused to perform it, sues in respect of any subject which he has contracted to refer, the existence of such contract shall bar the suit.(3) Notwithstanding anything contained in clause (a) or clause (c) or clause (d) of sub-section (1), The court may enforce specific performance in the following cases:- (a) where the suit is for the enforcement of a contract,-(i) To execute a mortgage or furnish any other security for security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the lender is willing to advance the remaining part of the loan in terms of the contract; or(ii) To take up and pay for any debentures of a company;(b) Where the suit is for,-(i) The execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or(ii) The purchase of a share of a partner in a firm,(c) Where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:-(i) The building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;(ii) The plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-performance of the contract is not an adequate relief; and(iii) The defendant has, in pursuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed.

PERSONS FOR OR AGAINST WHOM CONTRACTS MAY BE SPECIFICALLY ENFORCED15. Who may obtain specific performance.- Except as otherwise provided by this Chapter, the specific performance of a contract may be obtained by(a) Any party thereto;(b) The representative in interest or the principal, of any party thereto: Provided that where the learning, skill, solvency or any personal quality of such party is a material ingredient in the contract, or where the contract provides that his interest shall not be assigned, his representative in interest of his principal shall not be entitled to specific performance of the contract, unless such party has already performed his part of the contract, or the performance thereof by his representative in interest, or his principal, has been accepted by the other party;(c) Where the contract is a settlement on marriage, or a compromise of doubtful rights between members of the same family, any person beneficially entitled thereunder;(d) Where the contract has been entered into by a tenant for life in due exercise of a power, the remainderman;

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(e) A reversioner in possession, where the agreement is a covenant entered into with his predecessor in title and the reversioner is entitled to the benefit of such covenant;(f) A reversioner in remainder, where the agreement is such a covenant, and the reversioner are entitled to the benefit thereof and will sustain material injury by reason of its breach;(g) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;(h) When the promoters of a company have, before its incorporation, entered into a contract for the purposes of the company, and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and has communicated such acceptance to the other party to the contract.Personal bars to relief.16. Personal bars to relief.-Specific performance of a contract cannot be enforced in favour of a person(a) Who would not be entitled to recover compensation for its breach; or(b) Who has become incapable of performing, or violates any essential term of, the contract that on his part remains to be performed, or acts in fraud of the contract, or wilfully acts at variance with, or in subversion of, the relation intended to be established by the contract; or(c) Who fails to aver and prove that he has performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than terms the performance of which has been prevented or waived by the defendant.Explanation.-For the purposes of clause (c),-(i) Where a contract involves the payment of money, it is not essential for the plaintiff to actually tender to the defendant or to deposit in court any money except when so directed by the court;(ii) The plaintiff must aver performance of, or readiness and willingness to perform, the contract according to its true construction.

17. Contract to sell or let property by one who has no title, not specifically enforceable.- (1) A contract to sell or let any immovable property cannot be specifically enforced in favour of a vendor or lessor-(a) Who, knowing himself not to have any title to the property, has contracted to sell or let the property;(b) Who, though he entered into the contract believing that he had a good title to the property, cannot at the time fixed by the parties or by the court for the completion of the sale or letting, give the purchaser or lessee a title free from reasonable doubt.(2) The provisions of sub-section (1) shall also apply, as far as may be, to contracts for the sale or hire of movable property.

18. Non-enforcement except with variation.- Where a plaintiff seeks specific performance of a contract in writing, to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought, except with the variation so set up, in the following cases, namely:-(a) Where by fraud, mistake of fact or mis-representation, the written contract of which performance is sought is in its terms or effect different from what the parties agreed to, or does not contain all the terms agreed to between the parties on the basis of which the defendant entered into the contract;(b) Where the object of the parties was to produce a certain legal result which the contract as framed is not calculated to produce;(c) Where the parties have, subsequently to the execution of the contract, varied its terms.

19. Relief against parties and persons claiming under them by subsequent title.- Except as otherwise provided by this Chapter, specific performance of a contract may be enforced against-(a) Either party thereto;(b) any other person claiming under him by a title arising subsequently to the contract, except a transferee for value who has paid his money in good faith and without notice of the original contract;(c) Any person claiming under a title which, though prior to the contract and known to the plaintiff, might have been displaced by the defendant;(d) When a company has entered into a contract and subsequently becomes amalgamated with another company, the new company which arises out of the amalgamation;(e) When the promoters of a company have, before its incorporation, entered into a contract for the purpose of the company and such contract is warranted by the terms of the incorporation, the company: Provided that the company has accepted the contract and communicated such acceptance to the other party to the contract.

DISCRETION AND POWERS OF COURT20. Discretion as to decreeing specific performance.- (1) The jurisdiction to decree specific performance is discretionary, and the court is not bound to grant such relief merely because it is lawful to do so; but the discretion of the court is not arbitary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal.

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(2) The following are cases in which the court may properly exercise discretion not to decree specific performance-(a) where the terms of the contract or the conduct of the parties at the time of entering into the contract or the other circumstances under which the contract was entered into are such that the contract, though not voidable, gives the plaintiff an unfair advantage over the defendant; or(b) Where the performance of the contract would involve some hardship on the defendant which he did not foresee, whereas its non-performance would involve no such hardship on the plaintiff;(c) Where the defendant entered into the contract under circumstances which though not rendering the contract voidable, makes it inequitable to enforce specific performance.Explanation 1.-Mere inadequacy of consideration, or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not be deemed to constitute an unfair advantage within the meaning of clause (a) or hardship within the meaning of clause (b).Explanation 2.-The question whether the performance of a contract would involve hardship on the defendant within the meaning of clause (b) shall, except in cases where the hardship has resulted from any act of the plaintiff subsequent to the contract, be determined with reference to the circumstances existing at the time of the contract.(3) The court may properly exercise discretion to decree specific performance in any case where the plaintiff has done substantial acts or suffered losses in consequence of a contract capable of specific performance.(4) The court shall not refuse to any party specific performance of a contract merely on the ground that the contract is not enforceable at the instance of the other party.

21. Power to award compensation in certain cases.-(1) In a suit for specific performance of a contract, the plaintiff may also claim compensation for its breach, either in addition to, or in substitution of, such performance.(2) If, in any such suit, the court decides that specific performance ought not to be granted, but that there is a contract between the parties which has been broken by the defendant, and that the plaintiff is entitled to compensation for that breach, it shall award him such compensation accordingly.(3) If, in any such suit, the court decides that specific performance ought to be granted, but that is not sufficient to satisfy the justice of the case, and that some compensation for breach of the contract should also be made to the plaintiff, it shall award him such compensation accordingly.(4) In determining the amount of any compensation awarded under this section, the court shall be guided by the principles specified in section 73 of the Indian Contract Act, 1872 (9 of 1872).(5) No compensation shall be awarded under this section unless the plaintiff has claimed such compensation in his plaint: Provided that where the plaintiff has not claimed any such compensation in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just, for including a claim for such compensation.Explanation.-The circumstance that the contract has become incapable of specific performance does not preclude the court from exercising the jurisdiction conferred by this section.

22. Power to grant relief for possession, partition, refund of earnest money, etc.-(1) Notwithstanding anything to the contrary contained in the Code of Civil Procedure, 1908 (5 of 1908), any person suing for the specific performance of a contract for the transfer of immovable property may, in an appropriate case, ask for-(a) Possession, or partition and separate possession, of the property, in addition to such performance; or(b) Any other relief to which he may be entitled, including the refund of any earnest money or deposit paid or him, in case his claim for specific performance is refused.(2) No relief under clause (a) or clause (b) of sub-section (1) shall be granted by the court unless it has been specifically claimed: Provided that where the plaintiff has not claimed any such relief in the plaint, the court shall, at any stage of the proceeding, allow him to amend the plaint on such terms as may be just for including a claim for such relief.(3) The power of the court to grant relief under clause (b) of sub-section (1) shall be without prejudice to its powers to award compensation under section 21.23. Liquidation of damages not a bar to specific performance.-(1) A contract, otherwise proper to be specifically enforced, may be so enforced, though a sum be named in it as the amount to be paid in case of its breach and the party in default is willing to pay the same, if the court, having regard to the terms of the contract and other attending circumstances, is satisfied that the sum was named only for the purpose of securing performance of the contract and not for the purpose of giving to the party in default an option of paying money in lieu of specific performance.

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(2) When enforcing specific performance under this section, the court shall not also decree payment of the sum so named in the contract Bar of suit for compensation for breach after dismissal of suit forspecific performance.24. Bar of suit for compensation for breach after dismissal of suit for specific performance.- The dismissal of a suit for specific performance of a contract or part thereof shall bar the plaintiff's right to sue for compensation for the breach of such contract or part, as the case may be, but shall not bar his right to sue for any other relief to which he may be entitled, by reason of such breach.

ENFORCEMENT OF AWARDS AND DIRECTIONS TO EXECUTE SETTLEMENTS25. Application of preceding sections to certain awards and testamentary directions to execute settlements.-The provisions of this Chapter as to contracts shall apply to awards to which the Arbitration Act, 1940 (10 of 1940), does not apply and to directions in a will or codicil to execute a particular settlement.

RECTIFICATION OF INSTRUMENTS26. When instrument may be rectified.-(1) When, through fraud or a mutual mistake of the parties, a contract or other instrument in writing (not being the articles of association of a company to which the Companies Act, 1956 (1 of 1956), applies) does not express their real intention, then-(a) Either party or his representative in interest may institute a suit to have the instrument rectified; or(b) The plaintiff may, in any suit in which any right arising under the instrument is in issue, claim in his pleading that the instrument be rectified; or(c) A defendant in any such suit as is referred to in clause (b), may, in addition to any other defence open to him, ask for rectification of the instrument.(2) IF, in any suit in which a contract or other instrument is sought to be rectified under sub-section (1), the court finds that the instrument, through fraud or mistake, does not express the real intention of the parties, the court may, in its discretion, direct rectification of the instrument so as to express that intention, so far as this can be done without prejudice to rights acquired by third persons in good faith and for value.(3) A contract in writing may first be rectified, and then if the party claiming rectification has so prayed in his pleading and the court thinks fit, may be specifically enforced.(4) No relief for the rectification of an instrument shall be granted to any party under this section unless it has been specifically claimed: Provided that where a party has not claimed any such relief in his pleading, the court shall, at any stage of the proceeding, allow him to amend the pleading on such terms as may be just for including such claim.

RESCISSION OF CONTRACTS27. When rescission may be adjudged or refused.-(1) Any person interested in a contract may sue to have it rescinded, and such rescission may be adjudged by the court in any of the following cases, namely:-(a) Where the contract is voidable or terminable by the plaintiff;(b) Where the contract is unlawful for causes not apparent on its face and the defendant is more to blame than the plaintiff.(2) Notwithstanding anything contained in sub-section (1), the court may refuse to rescind the contract-(a) Where the plaintiff has expressly or impliedly ratified the contract; or(b) Where, owing to the change of circumstances which has taken place since the making of the contract (not being due to any act of the defendant himself), the parties cannot be substantially restored to the position in which they stood when the contract was made; or(c) Where third parties have, during the subsistence of the contract, acquired rights in good faith without notice and for value; or(d) Where only a part of the contract is sought to be rescinded and such part is not severable from the rest of the contract.Explanation.-In this section "contract", in relation to the territories to which the Transfer of Property Act, 1882 (4 of 1882), does not extend, means a contract in writing.

28. Rescission in certain circumstances of contracts for the sale or lease of immovable property, the specific performance of which has been decreed.- (1) Where in any suit a decree for specific performance of a contract for the sale or lease of immovable property has been made and the purchaser or lessee does not, within the period allowed by the decree or such further period as the court may allow, pay the purchase money or other sum which the court has ordered him to pay, the vendor or lessor may apply in the same suit in which the decree is made, to have the contract rescinded and on such application the court may, by order, rescind the contract either so far as egards the party in default or altogether, as the justice of the case may require.

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(2) Where a contract is rescinded under sub-section (1), the court-(a) Shall direct the purchaser or the lessee, if he has obtained possession of the property under the contract, to restore such possession to the vendor or lessor, and(b) May direct payment to the vendor or lessor of all the rents and profits which have accrued in respect of the property from the date on which possession was so obtained by the purchaser or lessee until restoration of possession to the vendor or lessor, and, if the justice of the case so requires, the refund of any sum paid by the vendee or lessee as earnest money or deposit in connection with the contract.(3) If the purchaser or lessee pays the purchase money or other sum which he is ordered to pay under the decree within the period referred to in sub-section (1), the court may, on application made in the same suit, award the purchaser or lessee such further relief as he may be entitled to, including in appropriate cases all or any of the following reliefs, namely:-(a) The execution of a proper conveyance or lease by the vendor or lessor;(b) The delivery of possession, or partition and separate possession, of the property on the execution of such conveyance or lease.(4) No separate suit in respect of any relief which may be claimed under this section shall lie at the instance of a vendor, purchaser, lessor or lessee, as the case may be.(5) The costs of any proceedings under this section shall be in the discretion of the court.

29. Alternative prayer for rescission in suit for specific performance.- A plaintiff instituting a suit for the specific performance of a contract in writing may pray in the alternative that, if the contract cannot be specifically enforced, it may be rescinded and delivered up to be cancelled; and the court, if it refuses to enforce the contract specifically, may direct it to be rescinded and delivered up accordingly.30. Court may require parties rescinding to do equity.- On adjudging the rescission of a contract, the court may require the party to whom such relief is granted to restore, so far as may be, any benefit which he may have received from the other party and to make any compensation to him which justice may require.

CANCELLATION OF INSTRUMENTS31. When cancellation may be ordered.-(1) Any person against whom a written instrument is void or voidable, and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable; and the court may, in its discretion, so adjudge it and order it to be delivered up and cancelled.(2) If the instrument has been registered under the Indian Registration Act, 1908 (16 of 1908), the court shall also send a copy of its decree to the officer in whose office the instrument has been so registered; and such officer shall note on the copy of the instrument contained in his books the fact of its cancellation.32. What instruments may be partially cancelled.- Where an instrument is evidence of different rights or different obligations, the court may, in a proper case, cancel it in part and allow it to stand for the residue.

33. Power to require benefit to be restored or compensation to be made when instrument is cancelled or is succesfully resisted as being void or voidable.-(1) On adjudging the cancellation of an instrument, the court may require the party to whom such relief is granted, to restore, so far as may be any benefit which he may have received from the other party and to make any compensation to him which justice may require.(2) Where a defendant successfully resists any suit on the ground-(a) that the instrument sought to be enforced against him in the suit is voidable, the court may if the defendant has received any benefit under the instrument from the other party, require him to restore, so far as may be, such benefit to that party or to make compensation for it;(b) that the agreement sought to be enforced against him in the suit is void by reason of his not having been competent to contract under section 11 of the Indian Contract Act, 1872 (9 of 1872), the court may, if the defendant has received any benefit under the agreement from the other party, require him to restore, so far as may be, such benefit to that party, to the extent to which he or his estate has benefited thereby.

DECLARATORY DECREES34. Discretion of court as to declaration of status or right.-Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right, and the court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in such suit ask for any further relief: Provided that no court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so.Explanation.-A trustee of property is a "person interested to deny" a title adverse to the title of some one who is not in existence, and for whom, if in existence, he would be a trustee.

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35. Effect of declaration.-A declaration made under this Chapter is binding only on the parties to the suit, persons claiming through them respectively, and, where any of the parties are trustees, on the persons for whom, if in existence at the date of the declaration, such parties would be trustees.

PREVENTIVE RELIEF:-INJUNCTIONS GENERALLY36. Preventive relief how granted.-Preventive relief is granted at the discretion of the court by injunction, temporary or perpetual.37. Temporary and perpetual injunctions.- (1) Temporary injunctions are such as are to continue until a specified time, or until the further order of the court, and they may be granted at any stage of a suit, and are regulated by the Code of Civil Procedure, 1908 (5 of 1908).(2) A perpetual injunction can only be granted by the decree made at the hearing and upon the merits of the suit; the defendant is thereby perpetually enjoined from the assertion of a right, or from the commission of an act, which would be contrary to the rights of the plaintiff.

PERPETUAL INJUNCTIONS38. Perpetual injunction when granted.-(1) Subject to the other provisions contained in or referred to by this Chapter, a perpetual injunction may be granted to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by implication.(2) When any such obligation arises from contract, the court shall be guided by the rules and provisions contained in Chapter II.(3) When the defendant invades or threatens to invade the plaintiff's right to, or enjoyment of, property, the court may grant a perpetual injunction in the following cases, namely:-(a) Where the defendant is trustee of the property for the plaintiff;(b) Where there exists no standard for ascertaining the actual damage caused, or likely to be caused, by the invasion;(c) Where the invasion is such that compensation in money would not afford adequate relief;(d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings.39. Mandatory injunctions.-When, to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of, and also to compel performance of the requisite acts.

40. Damages in lieu of, or in addition to, injunction.-(1) The plaintiff in a suit for perpetual injunction under section 38, or mandatory injunction under section 39, may claim damages either in addition to, or in substitution for, such injunction and the court may, if it thinks fit, award such damages.(2) No relief for damages shall be granted under this section unless the plaintiff has claimed such relief in his plaint: Provided that where no such damages have been claimed in the plaint, the court shall, at any stage of the proceedings, allow the plaintiff to amend the plaint on such terms as may be just for including such claim.(3) The dismissal of a suit to prevent the breach of an obligation existing in favour of the plaintiff shall bar his right to sue for damages for such breach.41. Injunction when refused.-An injunction cannot be granted-(a) To restrain any person from prosecuting a judicial proceeding pending at the institution of the suit in which the injunction is sought, unless such restraint is necessary to prevent a multiplicity of proceedings;(b) To restrain any person from instituting or prosecuting any proceeding in a court not subordinate to that from which the injunction is sought;(c) To restrain any person from applying to any legislative body;(d) To restrain any person from instituting or prosecuting any proceeding in a criminal matter;(e) To prevent the breach of a contract the performance of which would not be specifically enforced;(f) To prevent, on the ground of nuisance, an act of which it is not reasonably clear that it will be a nuisance;(g) To prevent a continuing breach in which the plaintiff has acquiesced;(h) When equally efficacious relief can certainly be obtained by any other usual mode of proceeding except in case of breach of trust;

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(i) When the conduct of the plaintiff or his agents has been such as to disentitle him to the assistance of the court;(j) When the plaintiff has no personal interest in the matter.42. Injunction to perform negative agreement.- Notwithstanding anything contained in clause (e) of section 41, where a contract comprises an affirmative agreement to do a certain act, coupled with a negative agreement, express or implied, not to do a certain act, the circumstance that the court is unable to compel specific performance of the affirmative agreement shall not preclude it from granting an injunction to perform the negative agreement: Provided that the plaintiff has not failed to perform the contract so far as it is binding on him.

LESSON-9:-THE ARBITRATION AND CONCILIATION ACT, 1996Definitions. -(1) In this Part, unless the context otherwise requires, -(a) “Arbitration” means any arbitration whether or not administered by permanent arbitral institution;(b) “Arbitration agreement” means an agreement referred to in section 7;(c) “Arbitral award” includes an interim award;(d) “Arbitral tribunal” means a sole arbitrator or a panel of arbitrators;(e) “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having, jurisdiction to decide the questions forming the subject-matter of the arbitration if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes;(f) “International commercial arbitration” means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is-(i) An individual who is a national of, or habitually resident in, any country other than India; or(ii) A body corporate which is in corporate in any on n try other than India; or(iii) A company or an association or a body of individuals whose central management and control is exercised in any country other than India; or(iv). The Government of a foreign country;(g) “Legal representative” means a person who in law represents the estate of a deceased person, and includes any person who intermeddles with the estate of the deceased, and, where a party acts in a representative character, the person on whom the estate devolves on the death of the party so acting;(h) “Party” means a party to an arbitration agreement.Scope(2) This Part shall apply where the place of arbitration is in India.(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration.(4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement, except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder.(5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto.Construction of references(6) Where this Part, except section 28, leaves the parties free to determine a certain issue, that freedom shall include the right of the parties to authorise any person including an institution, to determine that issue.(7) An arbitral award made under this Part shall be considered as a domestic award.(8) Where this Part-(a) Refers to the fact that the parties have agreed or that they may agree, or(b) In any other way refers to an agreement of the parties, That agreement shall include any arbitration rules referred to in that agreement.(9) Where this Part, other than clause (a) of section 25 or clause (a) of subsection (2) of section 32, refers to a claim, it shall also apply to a counterclaim, and where it refers to a defence, it shall also apply to a defence to that counter-claim.

3. Receipt of written communications. –(1) Unless otherwise agreed by the parties, -(a) Any written communication is deemed to have been received if it is delivered to the addressee personally or at his place of business, habitual residence or mailing address, and(b) If none of the places referred to in clause (a) can be found after making a reasonable inquiry, a written communication is deemed to have been received if it is sent to the addressee’s last known place

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of business, habitual residence or mailing address by registered letter or by any other means which provides a record of the attempt to deliver it.(2) The communication is deemed to have been received on the day it is so delivered.(3) This section does not apply to written communications in respect of proceedings of any judicial authority.4. Waiver of right to object. -A party who knows that-(a) Any provision of this Part from which the parties may derogate, or(b) Any requirement under the arbitration agreement, Has not been complied with and yet proceeds with the arbitration without stating his objection to such non-compliance without undue delay or, if a the limit is provided for stating that objection, within that period of time, shall be deemed to have waived his right to so object5. Extent of judicial intervention. -Notwithstanding anything contained in any other law for the time being in force, in matter governed by this Part, no judicial authority shall intervene except where so provided in this Part.6. Administrative assistance. -In order to facilitate the conduct of the arbitral proceedings, the parties, or the arbitral tribunal with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.7. Arbitration agreement. –(1) In this Part, “arbitration agreement” means an agreement by the parties to submit to arbitration all or certain disputes which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not.(2) An arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement.(3) An arbitration agreement shall be in writing.(4) An arbitration agreement is in writing if it is contained in-(a) A document signed by the parties;(b) An exchange of letters, telex, telegrams or other means of telecommunication which provide a record of the agreement; or(c) An exchange of statements of claim and defence in which the existence of the agreement is alleged by one party and not denied by the other.(5) There reference in a contract to a document containing an arbitration clause constitutes an arbitration agreement if the contract is in writing and the reference is such as to make that arbitration clause part of the contract.

8. Power to refer parties to arbitration where there is an arbitration agreement. (1) A judicial authority before which an action is brought in a matter, which is the subject of an arbitration agreement, shall, if a party so applies not later than when submitting his first statement on the substance of the dispute, refer the parties to arbitration.(2) The application referred to in sub-section (1) shall not be entertained unless it is accompanied by the original arbitration agreement or a duly certified copy thereof.(3) Notwithstanding that an application has been made under sub-section (1) and that the issue is pending before the judicial authority, arbitration may be commenced or continued and an arbitrat award made.

9. Interim measures, etc. by court. -A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court: -(i) For the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or(ii) For an interim measure of protection in respect of any of the following matters, namely: -(a) The preservation, interim custody or sale of any goods, which are the subject matter of the arbitration agreement;(b) Securing the amount in dispute in the arbitration;(c) The detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence;(d) Interim injunction or the appointment of a receiver;(e) Such other interim measure of protection as may appear to the court to be just and convenient, And the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it.

COMPOSITION OF ARBITRAL TRIBUNAL

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10. Number of arbitrators. –(1) The parties are free to determine the number of arbitrators, provided that such number shall not be an even number.(2) Failing the determination referred to in sub-section (1), the arbitral tribunal shall consist of a sole arbitrator.11. Appointment of arbitrators. –(1) A person of any nationality may be an arbitrator, unless otherwise agreed by the parties.(2) Subject to sub-section (6), the parties are free to agree on a procedure for appointing the arbitrator or arbitrators.(3) Failing any agreement referred to in sub-section (2), in an arbitration with three arbitrators, each party shall appoint one arbitrator, and the two appointed arbitrators shall appoint the third arbitrator who shall act as the presiding arbitrator.(4) If the appointment procedure in sub-section (3) applies and-(a) A party fails to appoint an arbitrator within thirty days from the receipt of a request to do so from the other party; or(b) The two appointed arbitrators fail to agree on the third arbitrator within thirty days from the date of their appointment, The appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.(5) Failing any agreement referred to in sub-section (2), in an arbitration with a sole arbitrator, if the parties fail to agree on the arbitrator within thirty days from receipt of a request by one party from the other party to so agree the appointment shall be made, upon request of a party, by the Chief Justice or any person or institution designated by him.(6) Where, under an appointment procedure agreed upon by the parties, -(a) A party fails to act as required under that procedure; or(b) The parties, or the two appointed arbitrators, fail to reach an agreement expected of them under that procedure; or(c) A person, including an institution, fails to perform any function entrusted to him or it under that procedure, a party may request the Chief Justice or any person or institution designated by him to take the necessary measure, unless the agreement on the appointment procedure provides other means for securing the appointment.(7) A decision on a matter entrusted by sub-section (4) or sub-section (5) or sub-section (6) to the Chief Justice or the person or institution designated by him is final.(8) The Chief Justice or the person or institution designated by him, in appointing an arbitrator, shall have due regard to-(a) Any qualifications required of the arbitrator by the agreement of the parties; and(b) Other considerations as are likely to secure the appointment of an independent and impartial arbitrator.(9) In the case of appointment of sole or third arbitrator in an international commercial arbitration, the Chief Justice of India or the person or institution designated by him may appoint an arbitrator of a nationality other than the nationalities of the parties where the parties belong to different nationalities.(10) The Chief Justice may make such scheme, as he may deem appropriate for dealing with matters entrusted by sub-section (4) or sub-section (5) or subsection (6) to him.(11) Where more than one request has been made under sub-section (4) or subsection (5) or sub-section (6) to the Chief Justices of different High Courts or their designates, the Chief Justice or his designate to whom the request has been first made under the relevant subsection shall alone be competent to decide on the request.(12) (a) Where the matters referred to in sub-sections (4), (5), (6), (7),(8) and (10) arise in an international commercial arbitration, the reference to “Chief Justice” in those subsections shall be construed as a reference to the “Chief Justice of India”.(b) Where the matters referred to in sub-sections (4), (5), (6), (7), (8) and (10) arise in any other arbitration, the reference to “Chief Justice” in those sub-sections shall be construed as a reference to the Chief Justice of the High Court within whose local limits the principal Civil Court referred to in clause (e) of sub-section (1) of section 2 is situate and, where the High Court itself is the Court referred to in that clause, to the Chief Justice of that High Court.

12. Grounds for challenge. -(1) When a person is approached in connection with his possible appointment as an arbitrator, he shall disclose in writing any circumstances likely to give rise to justifiable doubts as to his independence or impartiality.(2) An arbitrator, from the time of his appointment and throughout the arbitral proceedings, shall, without delay, disclose to the parties in writing any circumstances referred to in sub-section (1) unless they have already been informed of them by him.(3) An arbitrator may be challenged only if-

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(a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality, or(b) He does not possess the qualifications agreed to by the parties.(4) A party may challenge an arbitrator appointed by him, or in whose appointment he has participated, only for reasons of which he becomes aware after the appointment has been made.

13. Challenge procedure. –(1) Subject to sub-section (4), the parties are free to agree on a procedure for challenging an arbitrator.(2) Failing any agreement referred to in sub-section (1), a party who intends to challenge an arbitrator shall, within fifteen days after becoming aware of the constitution of the arbitral tribunal or after becoming aware of any circumstances referred to in sub-section (3) of section 12, send a written statement of the reasons for the challenge to the arbitral tribunal.(3) Unless the arbitrator challenged under sub-section (2) withdraws from his office or the other party agrees to the challenge, the arbitrat tribunal shall decide on the challenge.(4) If a challenge under any procedure agreed upon by the parties or under the procedure under sub-section (2) is not successful, the arbitral tribunal shall continue the arbitral proceedings and make an arbitral award.(5) Where an arbitral award is made under sub-section (4), the party challenging the arbitrator may make an application for setting aside such an arbitral award in accordance with section 34.(6) Where an arbitral award is set aside on an application made under subsection(5), the court may decide as to whether the arbitrator who is challenged is entitled to any fees.

14. Failure or impossibility to act. –(1) The mandate of an arbitrator shall terminate if-(a) He becomes de jure or de facto unable to perform his functions or for other reasons fails to act without undue delay; and(b) He withdraws from his office or the parties agree to the termination of his mandate.(2) If a controversy remains concerning any of the grounds refer-red to in clause (a) of sub-section (1), a party may, unless otherwise agreed by the parties, apply to the court to decide on the termination of the mandate.(3) If, under this section or sub-section (3) of section 13, an arbitrator withdraws from his office or a party agrees to the termination of the mandate of an arbitrator, it shall not imply acceptance of the validity of any ground referred to in this section or sub-section (3) of section 12.

15. Termination of mandate and substitution of arbitrator. -(1) In addition to the circumstances referred to in section 13 or section 14, the mandate of an arbitrator shall terminate(a) Where he withdraws from office for any reason; or(b) By or pursuant to agreement of the parties.(2) Where the mandate of an arbitrator terminates, a substitute arbitrator shall be appointed according to the rules that were applicable to the appointment of the arbitrator being replaced.(3) Unless otherwise agreed by the parties, where an arbitrator is replaced under subsection (2), any hearings previously held may be repeated at the discretion of the arbitral tribunal.(4) Unless otherwise agreed by the parties, an order or ruling of the arbitral tribunal made prior to the replacement of an arbitrator under this section shall not be invalid solely because there has been a change in the composition of the arbitral tribunal.

JURISDICTION OF ARBITRAL TRIBUNALS16. Competence of arbitral tribunal to rule on its jurisdictional. -(1) The arbitral tribunal may rule on its own jurisdiction, including ruling on any objections with respect to the existence or validity of the arbitration agreement, and for that purpose, -(a) An arbitration clause which forms part of a contract shall be treated as an agreement independent of the other terms of the contract; and(b) A decision by the arbitral tribunal that the contract is null and void shall not entail ipso jure the invalidity of the arbitration clause.(2) A plea that the arbitral tribunal does not have jurisdiction shall be raised not later than the submission of the statement of defence; however, a party shall not be precluded from raising such a plea merely because that he has appointed, or participated in the appointment of, an arbitrator.(3) A plea that the arbitral tribunal is exceeding the scope of its authority shall be raise as soon as the matter alleged to be beyond the scope of its authority is raised during the arbitral proceedings.(4) The arbitral tribunal may, in either of the cases referred to in sub-section(2) or subsection (3), admit a later plea if it considers the delay justified.

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(5) The arbitral tribunal shall decide on a plea referred to in sub-section (2) or sub-section (3) and, where the arbitral tribunal takes a decision rejecting the plea, continue with the arbitral proceedings and make an arbitral award.(6) A party aggrieved by such an arbitral award may make an application forgetting aside such an arbitral award in accordance with section 34.

17. Interim measures ordered by arbitral tribunal. –(1) Unless otherwise agreed by the parties, the arbitral tribunal may, at the request of a party, order a party to take any interim measure of protection as the arbitral tribunal may consider necessary in respect of the subjectmatter of the dispute.(2) The arbitral tribunal may require a party to provide appropriate security in connection with a measure ordered under sub-section (1).

CONDUCT OF ARBITRAL PROCEEDINGS18. Equal treatment of parties. –The parties shall be treated with equality and each party shall be given a full opportunity to present his case.19. Determination of rules of procedure. –(1) The arbitral tribunal shall not be bound by the Code of Civil Procedure, 1908 (5 of 1908) or the Indian Evidence Act, 1872 (I of 1872).(2) Subject to this Part, the parties are free to agree on the procedure to be followed by the arbitral tribunal in conducting its proceedings.(3) Failing any agreement referred to in sub-section (2), the arbitral tribunal may, subject to this Part, conduct the proceedings in the manner it considers appropriate.(4) The power of the arbitral tribunal under sub-section (3) includes the power to determine the admissibility, relevance, materiality and weight of any evidence.20. Place of arbitration. –(1) The parties are free to agree on the place of arbitration.(2) Failing any agreement referred to in sub-section (1), the place of arbitration shall be determined by the arbitral tribunal having regard to the circumstances of the case, including the convenience of the parties.(3) Notwithstanding sub-section (1) or sub-section (2), the arbitral tribunal may, unless otherwise agreed by the parties, meet at any place it considers appropriate for consultation among its members, for hearing witnesses, experts or the parties, or for inspection of documents, goods or other property.

21. Commencement of arbitral proceedings. -Unless otherwise agreed by the parties, the arbitral proceedings in respect of a particular dispute commence on the date on which a request for that dispute to be referred to arbitration is received by the respondent.

22. Language. -(1) The parties are free to agree upon the language or languages to be used in the arbitral proceedings.(2) Failing any agreement referred to in sub-section (1), the arbitral tribunal shall determine the language or languages to be used in the arbitral proceedings.(3) The agreement or determination, unless otherwise specified, shall apply to any written statement by a party, any hearing and any arbitral award, decision or other communication by the arbitral tribunal.(4) The arbitral tribunal may order that any documentary evidence shall be accompanied by a translation into the language or languages agreed upon by the parties or determined by the arbitral tribunal.

23. Statements of claim and defence. -(1) Within the period of time agreed upon by the parties or determined by the arbitral tribunal, the claimant shall state the facts supporting his claim, the points at issue and the relief or remedy sought, and the respondent shall state his defence in respect of these particulars, unless the parties have otherwise agreed as to the required elements of those statements.(2) The parties may submit with their statements all documents they consider to be relevant or may add a reference to the documents or other evidence they will submit.(3) Unless otherwise agreed by the parties, either party may amend or supplement his claim or defence during the course of the arbitral proceedings, unless the arbitral tribunal considers it inappropriate to allow the amendment or supplement having regard to the delay in making it.

24. Hearings and written proceedings. –(1) Unless otherwise agreed by the parties, the arbitral tribunal shall decide whether to hold oral hearings for the presentation of evidence or for or a argument, or whether the proceedings shall be conducted on the basis of documents and other materials: Provided that the arbitrat tribunal shall hold

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oral hearings, at an appropriate state of the proceedings, on a request by a party, unless the parties have agreed that no oral hearing shall be held.(2) The parties shall be given sufficient advance notice of any hearing and of any meeting of the arbitral tribunal for the purposes of inspection of documents, goods or other property-(3) All statements, documents or other information supplied to, or applications made to the arbitral tribunal by one party shall be communicated to the other party, and any expert report or evidentiary document on which the arbitral tribunal may rely in making its decision shall be communicated to the parties.

25. Default of a party. -Unless otherwise agreed by the parties, where, without showing sufficient cause, -(a) The claimant fails to communicate his statement of claim in accordance with subsection (1) of section (2), the arbitral tribunal shall terminate the proceedings;(b) The respondent fails to communicate his statement of defence in accordance with sub-section (1) of section 23; the arbitral tribunal shall continue the proceedings without treating that failure in itself as an admission of the alienations by the claimant;(c) A party fails to appear a tan oral hearing or to produce documentary evidence, the arbitral tribunal may continue the proceedings and make the arbitrat award on the evidence before it.

26. Expert appointment by arbitral tribunal. –(1) Unless otherwise agreed by the parties, the arbitral tribunal may-(a) Appoint one or more experts to report to it on specific issues to be determined by the arbitral tribunal, and(b) Require a party to give the expert any relevant information or to produce, or to provide access to, any relevant documents, goods or other property for his inspection.(2) Unless otherwise agreed by the parties, if a party so requests or if the arbitral tribunal considers it necessary, the expert shall, after delivery of his written or oral report, participate in an oral hearing where the parties have the opportunity to put questions to him and to present expert witnesses in order to testify on the points at issue.(3) Unless otherwise agreed by the parties, the expert shall, on the request of a party, make available to that party for examination all documents, goods or other property in the possession of the expert with which he was provided in order to prepare his report.

27. Court assistance in taking evidence. –(1) The arbitral tribunal, or a party with the approval of the arbitral tribunal, may apply to the court for assistance in taking evidence.(2) The application shall specify-(a) The names and addresses of the parties and the arbitrators;(b) The general nature of the claim and the relief sought;(c) The evidence to be obtained, in particular, -(i) The name and address of any person to be beard as witness or expert witness and a statement of the subject-matter of the testimony required;(ii) The description of any document to be produced or property to be inspected.(3) The court may, within its competence and according to its rules on taking evidence, execute the request by ordering that the evidence be provided directly to the arbitral tribunal.(4) The court may, while making an order under sub-section (3), issue the same processes to witnesses as it may issue in suits tried before it.(5) Persons failing to attend in accordance with such process, or making any other default, or refusing to give their evidence, or guilty of any contempt to the arbitral tribunal during the conduct of arbitral proceedings, shall be subject to the like disadvantages, penalties and punishments by order of the court on the representation of the arbitral tribunal as they would incur for the like offences in suits tried before the court.(6) In this section the expression “Processes” includes summonses and commissions for the examination of witnesses and summonses to produce documents.

MAKING OF ARBITRAL AWARD AND TERMINATION OF PROCEEDINGS28. Rules applicable to substance of dispute. –(1) Where the place of arbitration is situate in India, -(a) In an arbitration other than an international commercial arbitration, the arbitral tribunal shall decide the dispute submitted to arbitration in accordance with the substantive law for the time being in force in India;(b) In international commercial arbitration, -

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(i) The arbitrat tribunal shall decide the dispute in accordance with the rules of law designated by the parties as applicable to the substances of the dispute;(ii) Any designation by the p arties of the law or legal system of a given country shall be construed, unless otherwise expressed, as directly referring to the substantive law of that country and not to its conflict of laws rules;(iii) Failing any designation of the law under clause (a) by the parties, the arbitrat tribunal shall apply the rules of law it considers to be appropriate, given all the circumstances surrounding the dispute.(2) The arbitral tribunal shall decide ex aequo et bono or as amiable compositeur only if the parties have expressly authorised it to do so.(3) In all cases, the arbitral tribunal shall decide in accordance with the terms of the contract and shall take into account the usages of the trade applicable to the transaction.

29. Decision making by panel of arbitrators. -(1) Unless otherwise a-reed by the parties, in arbitral proceedings with more than one arbitrator, any decision of the arbitrat tribunal shall be made by a majority of all its members.(2) Notwithstanding sub-section (1), if authorised by the parties or all the members of the arbitrat tribunal, questions of procedure may be decided by the presiding, arbitrator.30. Settlement. –(1) It is not incompatible with an arbitration agreement for an arbitrat tribunal to encourage settlement of the dispute and, with the agreement of the parties; the arbitrat tribunal may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.(2) If, during, arbitral proceedings, the parties settle the dispute, the arbitral tribunal shall terminate the proceedings and, if requested by the parties and not objected to by the arbitral tribunal, record the settlement in the form of an arbitrat award on agreed terms.(3) An arbitral award on agreed terms shall be made in accordance with section 31 and shall state that it is an arbitrat award.(4) An arbitrat award on a-reed terms shall have the same status and effect as any other arbitral award on the substance of the dispute.

31. Form and contents of arbitral award. –(1) An arbitral award shall be made in writing and shall be signed by the members of the arbitral tribunal.(2) For the purposes of sub-section (1), in arbitrat proceeding with more than one arbitrator, the signatures of the majority of all the members of the arbitral tribunal shall be sufficient so long as the reason for any omitted signature is stated.(3) The arbitral award shall state the reasons upon which it is based, unless-(a) The parties have agreed that no reasons are to be given, or(b) The award is an arbitral award on a-reed terms under section 30.(4) The arbitral award shall state its date and the place of arbitration as determined in accordance with section 20 and the award shall be deemed to have been made at that place.(5) After the arbitral award is made, a signed copy shall be delivered to each party.(6) The arbitral tribunal may, at any time during the arbitral proceedings, make an interim arbitral award on any matter with respect to which it may make a final arbitral award.(7) (a) Unless otherwise a reed by the parties, where and in so far as an arbitral award is for the payment of money, the arbitral tribunal may include in the sum for which the award is made interest, at such rate as it deems reasonable, on the whole or any part of the money, for the whole or any part of the period between the date on which the cause of action arose and the date on which the award is made.(b) A sum directed to be paid by an arbitral award shall, unless the award otherwise directs, carry interest at the rate of eighteen percentum per annum from the date of the award to the date of payment.(8) Unless otherwise agreed by the parties, -(a) The costs of arbitration shall be fixed by the arbitral tribunal(b) The arbitral tribunal shall specify-(i) The party entitled to costs,(ii) The party who shall pay the costs,(iii) The amount of costs or method of determining that amount, and(iv) The manner in which the costs shall be paid.Explanation. -For the purpose of clause (a), “costs” means reasonable costs relating to-(i) The fees and expenses of the arbitrators and witnesses,(ii) Legal fees and expenses,(iii) Any administration fees of the institution supervising the arbitration, and(iv) Any other expenses incurred in connection with the arbitral proceeding and the arbitral award.

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32. Termination of proceedings. –(1) The arbitral proceeding shall be terminated by the final arbitral award or by all order of the arbitral tribunal under subsection (2).(2) The arbitral tribunal shall issue an order for the termination of the arbitral proceedings where-(a) The claimant withdraws his claim, unless the respondent objects to the order and the arbitral tribunal recognizes a legitimate interest on his part in obtaining a final settlement of the dispute,(b) The parties agree on the termination of the proceedings as, or(c) The arbitral tribunal finds that the continuation of the proceedings has for any other reason become unnecessary or impossible.(3) Subject to section 33 and sub-section (4) of section 34, the mandate of the arbitral tribunal shall terminate with the termination of the arbitral proceedings.

33. Correction and interpretation of award; additional award. –(1) Within thirty days from the receipt of the arbitral award, unless another period of time has been agreed upon by the parties-(a) A party, with notice to the other party, may request the arbitral tribunal to correct any computation errors, any clerical or typographical errors or any other errors of a similar nature occurring in the award;(b) If so agreed by the parties, a party, with notice to the other party, may request the arbitral tribunal to give an interpretation of a specific point or part of the award.(2) If the arbitral tribunal considers the request made under sub-section (1) to be justified, it shall make the correction or give the interpretation within thirty days from the receipt of the request and the interpretation shall form part of the arbitral award.(3) The arbitral tribunal may correct any error of the type referred to in clause(a) Of subsection (1), on its own initiative, within thirty days from the date of the arbitral award.(4) Unless otherwise a-reed by the parties, a party with notice to the other party, may request, within thirty days from the receipt of the arbitral award, the arbitral tribunal to make an additional arbitral award as to claims presented in the arbitral proceedings but omitted from the arbitral award.(5) If the arbitral tribunal considers the request made under sub-section (4) to be justified, it shall make the additional arbitral award within sixty days from the receipt of such request.(6) The arbitral tribunal may extend, if necessary, the period of time with in which it shall make a correction, give an interpretation or make an additional arbitral award under sub-section (2) or sub-section (5).(7) Section 31 shall apply to a correction or interpretation of the arbitral award or to an additional arbitral award made under this section.

RECOURSE AGAINST ARBITRAL AWARD

34. Application for setting aside arbitral award. –(1) Recourse to a court against an arbitral award may be made only by an application for setting aside such award in accordance with sub-section (2) and subsection (3).(2) An arbitral award may be set aside by the court only if-(a) The party making the application furnishes proof that-(i) A party was under some incapacity, or(ii) The arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law for the time being in force; or(iii) The party making the application was not given proper notice of the appointment of an arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or(iv) The arbitral award deals with a dispute not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, only that part of the arbitral award which contains decisions on matters not submitted to arbitration may be set aside; or(v) The composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties, unless such agreement was in conflict with a provision of this Part from which the parties cannot derogate, or, failing such agreement, was not in accordance with this Part; or(b) The court finds that-(i) The subject-matter of the dispute is not capable of settlement by arbitration under the law for the time being in force, or(ii) The arbitral award is in conflict with the public policy of India.Explanation. -Without prejudice to the generality of sub-clause (ii), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption or was in violation of section 75 or section 81.(3) An application for setting aside may not be made after three months have elapsed from the date on which the party making that application had received the arbitral award or, if a request had been made

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under section 33, from the date on which that request had been disposed of by the arbitral tribunal: Provided that if the court is satisfied that the applicant was prevented by sufficient cause from making the application within the said period of three months it may entertain the application within a further period of thirty days, but not thereafter.(4) On receipt of an application under sub-section (1), the court may, where it is appropriate and it is so requested by a party, adjourn the proceedings for a period of time determined by it in order to give the arbitral tribunal an opportunity to resume the arbitral proceedings or to take such other action as in the opinion of arbitral tribunal will eliminate the grounds for setting aside the arbitral award.

FINALITY AND ENFORCEMENT OF ARBITRAL AWARDS35. Finality of arbitral awards. -Subject to this Part an arbitral award shall be final and binding on the parties and persons, claiming under them respectively.36. Enforcement. - Where the time for making an application to set aside the arbitral award under section 34 has expired, or such application having been made, it has been refused, the award shall be enforced under the Code of Civil Procedure, 1908 (5 of 1908) in the same manner as if it were a decree of the court.

APPEALS37. Appealable orders. –(1) An appeal shall lie from the following orders (and from no others) to the court authorised by law to hear appeals from original decrees of the court passing the order, namely: -(a) Granting or refusing to grant any measure under section 9;(b) Setting aside or refusing to set aside an arbitral award under section 34.(2) An appeal shall also lie to a court from an order of the arbitral tribunal--(a) Accepting the plea referred to in sub-section (2) or sub-section (3) of section 16; or(b) Granting or refusing to grant an interim measure under section 17.(3) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.38. Deposits. –(1) The arbitral tribunal may-fix the amount of the deposit or supplementary deposit, as the case may be, as an advance for the costs referred to in subsection (8) of section 31, which it expects will be incurred in respect of the claim submitted to it: Provided that where, apart from the claim, a counter-claim has been submitted to the arbitrat tribunal, it may fix separate amount of deposit for the claim and counter claim.(2) The deposit referred to in sub-section (1) shall be payable in equal shares by the parties:Provided that where one party fails to pay his share of the deposit, the other party may pay that share: Provided further that where the other party also does not pay the aforesaid share in respect of the claim or the counter-claim, the arbitral tribunal may suspend or terminate the arbitral proceedings in respect of such claim or counter-claim, as the case may be. Upon termination of the arbitral proceedings, the arbitral tribunal shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the party or parties’, as the case may be.

39. Lien on arbitral award and deposits as to costs. –(1) Subject to the provisions of sub-section (2) and to any provision to the contrary in the arbitration agreement, the arbitral tribunal shall have a lien on the arbitral award for any unpaid costs of the arbitration.(2) If in any case an arbitral tribunal refuses to deliver its award except on payment of the costs demanded by it, the court may, on an application in this behalf, order that the arbitral tribunal shall deliver the arbitral award to the applicant on payment into court by the applicant of the costs demanded, and shall, after such inquiry, if any, as it thinks fit, further order that out of the money so paid into court there shall be paid to the arbitral tribunal by way of costs such sum as the court may consider reasonable and that the balance of the money, if any, shall be refunded to the applicant.(3) An application under sub-section (2) may be made by any party unless the fees demanded have been fixed by written agreement between him and the arbitral tribunal, and the arbitral tribunal shall be entitled to appear and be heard on any such application.(4) The court may make such orders as it thinks fit respecting the costs of the arbitration where any question arises respecting such costs and the arbitral award contains no sufficient provision concerning them.40. Arbitration agreement not to be discharged by death of party thereto. –(1) An arbitration agreement shall not be discharged by the death of any party thereto either as respects the deceased or as respects any other party, but shall in such event be enforceable by or against the legal representative of the deceased.(2) The mandate of an arbitrator shall not be terminated by the death of any party by whom he was appointed.

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(3) Nothing in this section shall affect the operation of any law by virtue of which any right of action is extinguished by the death of a person.41. Provisions in case of insolvency. –(1) Where it is provided by a term in a contract to which an insolvent is a party that any dispute arising there out or in connection therewith shall be submitted to arbitration, the said term shall, if the receiver adopts the contract, be enforceable by or against him so far as it relates to any such dispute.(2) Where a person who has been adjudged an insolvent had, before the commencement of the insolvency proceedings, become a party to an arbitration agreement, and any matter to which the agreement applies is required to be determined in connection with, or for the purposes of, the insolvency proceedings, then, if the case is one to which sub-section (1) does not apply, any other party or the receiver may apply to the judicial authority having jurisdiction in the insolvency proceedings for an order directing that the matter in question shall be submitted to arbitration in accordance with the arbitration agreement, and the judicial authority may, if it is of opinion that, having regard to all the circumstances of the case, the matter ought to be determined by arbitration, make an order accordingly.(3) In this section the expression “receiver” includes an Official Assignee.

42. Jurisdiction. -Notwithstanding anything contained elsewhere in this Part or in any other law for the time being in force, where with respect to an arbitration agreement any application under this Part has been made in a court, that court alone shall have jurisdiction over the arbitral proceedings and all subsequent applications arising out of that agreement and the arbitral proceedings shall be made in that court and in no other court.

43. Limitations. –(1) The Limitation Act, 1963 (36 of 1963), shall apply to arbitrations as it applies to proceedings in court.(2) For the purposes of this section and the Limitation Act, 1963 (36 of 1963), an arbitration shall be deemed to have commenced on the date referred in section 21.(3) Where an arbitration agreement to submit future disputes to arbitration provides that any claim to which the agreement applies shall be barred unless some step to commence arbitral proceedings is taken within a time fixed by the agreement, and a dispute arises to which the agreement applies, the court, if it is of opinion that in the circumstances of the case undue hardship would otherwise be caused, and notwithstanding that the time so fixed has expired, may on such terms, if any, as the justice of the case may require, extend the time for such period as it thinks proper.(4) Where the court orders that an arbitral award be set aside, the period between the commencement of the arbitration and the date of the order of the court shall be excluded in computing the time prescribed by the Limitation Act, 1963 (3 6 of 1963), for the commencement of the proceedings (including arbitration) with respect to the dispute so submitted.

ENFORCEMENT OF CERTAIN FOREIGN AWARDS:_NEW YORK CONVENTION AWARDS44. Definition. -In this Chapter, unless the context otherwise requires, “foreign award” means an arbitral award on differences between persons arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India, made on or after the 11th day of October, 1960-(a) In pursuance of an agreement in writing for arbitration to which the Convention set forth in the First Schedule applies, and(b) In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made may, by notification in the Official Gazette, declare to be territories to which the said Convention applies.45. Power of judicial authority to refer parties to arbitration. –Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908) a judicial authority, when seized of an action in a matter in respect of which the parties have made an agreement referred to in section 44, shall, at the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed.46. When foreign award binding. - Any foreign award which would be, enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on; an award.47. Evidence. –(1) The party applying for the enforcement of a foreign award shall, at the time of the application, produces before the court-(a) The original award or a copy thereof, duly authenticated in the manner required by the law of the country in which it was made;(b) The original agreement for arbitration or a duly certified copy thereof, and

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(c) Such evidence as may be necessary to prove that the award is a foreign award.(2) If the award or agreement to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force inIndia.Explanation. -In this section and all the following sections of this Chapter, “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to) such principal Civil Court, or any Court of Small, Causes.48. Conditions for enforcement of foreign awards. –(1) Enforcement of a foreign award may be refused, at the request of the party against whom it is invoked, only if that party furnishes to the court proof that-(a) The parties to the agreement referred to in section 44 were, under the law applicable to them, under some incapacity, or the said agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made; or(b) The party against whom the award is invoked was not given proper notice of the appointment of the arbitrator or of the arbitral proceedings or was otherwise unable to present his case; or(c) The award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration: Provided that, if the decisions on matters submitted to arbitration can be separated from those not so submitted, that part of the award which contains decisions on matters submitted to arbitration may be enforced; or(d) The composition of the arbitral authority or the arbitral procedure was not in accordance with the agreement of the parties, or, failing such agreement, was not in accordance with the law of the country where the arbitration took place; or(e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made.(2) Enforcement of an arbitral award may also be refused if the court finds that-(a) The subject-matter of the difference is not capable of settlement by arbitration under the law of India; or(b) The enforcement of the award would be contrary to the public policy of India.Explanation. -Without prejudice to the generality of clause (b) of this section, it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.(3) If an application for the setting aside or suspension of the award has been made to a competent authority referred to in clause (e) of sub-section (1) the court may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security.49. Enforcement of foreign awards. -Where the court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of that court.50. Appealable orders. –(1) An appeal shall lie from the order refusing to-(a) Refer the parties to arbitration under section 45;(b) Enforce a foreign award under section 48, to the court authorised by law to hear appeals from such order.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court.51. Saving. –Nothing in this Chapter shall prejudice any rights, which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.52. Chapter II not to apply. -Chapter II of this Part shall not apply in relation to foreign awards to which this Chapter applies.

GENEVA CONVENTION AWARDS53. Interpretation. -In this Chapter “foreign award” means an arbitral award on differences relating to matters considered as commercial under the law in force in India made after the 28th day of July, 1924, -(a) In pursuance of an agreement for arbitration to which the Protocol set forth in the Second Schedule applies, and(b) Between persons of whom one is subject to the jurisdiction of some one of such Powers as the Central Government, being satisfied that reciprocal provisions have been made, may, by notification in

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the Official Gazette, declare to be parties to the Convention set forth in the Third Schedule, and of whom the other is subject to the jurisdiction of some other of the Powers aforesaid, and(c) In one of such territories as the Central Government, being satisfied that reciprocal provisions have been made, may, by like notification, declare to be territories, to which the said Convention applies, And for the purposes of this Chapter an award shall not be deemed to be final if any proceedings for the purpose of contesting the validity of the award are pending in the country in which it was made

54. Power of judicial authority to refer parties to arbitration. –Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, on being seized of a dispute regarding a contract made between persons to whom section 53 applies and including an arbitration agreement, whether referring to present or future differences, which is valid under that section and capable of being carried into effect, shall refer the parties on the application, of either of them or any person claiming through or under him to the decision of the arbitrators and such reference shall not prejudice the competence of the judicial authority in case the agreement or the arbitration cannot proceed or becomes inoperative.

55. Foreign awards when binding. -Any foreign award which would be enforceable under this Chapter shall be treated as binding for all purposes on the persons as between whom it was made, and may accordingly be relied on by any of those persons by way of defence, set off or otherwise in any legal proceedings in India and any references in this Chapter to enforcing a foreign award shall be construed as including references to relying on an award.

56. Evidence. –(1) The party applying for the enforcement of a foreign award shall, at the time of application, produces before the court-(a) The original award or a copy thereof duly authenticated in the manner required by the law of the country in which it was made;(b) Evidence proving that the award has become final; and(c) Such evidence as may be necessary to prove that the conditions mentioned in clauses (a) and (c) of sub-section (1) of section 57 are satisfied.(2) Where any document requiring to be produced under sub-section (1) is in a foreign language, the party seeking to enforce the award shall produce a translation into English certified as correct by a diplomatic or consular agent of the country to which that party belongs or certified as correct in such other manner as may be sufficient according to the law in force in India.Explanation. –In this section and all the following sections of this Chapter, “Court” means the principal Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction over the subject-matter of the award if the same had been the subject-matter of a suit, but does not include any civil court of a grade inferior to such principal ‘Civil Court, or any Court of Small Causes.

57. Conditions for enforcement of foreign awards. –(1) In order that a foreign award may be enforceable under this Chapter, it shall be necessary that-(a) The award has been made in pursuance of a submission to arbitration, which is valid under the law applicable thereto;(b) The subject-matter of the award is capable of settlement by arbitration under the law of India;(c) The award has been made by the arbitrat tribunal provided for in the submission to arbitration or constituted in the manner agreed upon by the parties and in conformity with the law governing the arbitration procedure;(d) The award has become final in the country in which it has been made, in the sense that it will not be considered as such if it is open to, opposition or appeal or if it is proved that any proceedings for the purpose of contesting the validity of the award are pending;(e) The enforcement of the award is not contrary to the public policy or the law of India.Explanation. -Without prejudice to the generality of clause (e), it is hereby declared, for the avoidance of any doubt, that an award is in conflict with the public policy of India if the making of the award was induced or affected by fraud or corruption.(2) Even if the conditions laid down in sub-section (1) are fulfilled, enforcement of the award shall be refused if the court is satisfied that-(a) The award has been annulled in the country in which it was made;(b) The party against whom it is sought to use the award was not given notice of the arbitration proceedings in sufficient time to enable him to present his case; or that, being under a legal incapacity, he was not properly represented;(c) The award does not deal with the differences contemplated by or falling within the terms of the submission to arbitration or that it contains decisions on matters beyond the scope of the submission to

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arbitration: Provided that if the award has not covered all the differences submitted to the arbitral tribunal, the court may, if it thinks fit, postpone such enforcement or grant it subject to such guarantee as the court may decide.(3) If the party against whom the award has been made proves that under the law governing the arbitration procedure there is a ground, other than the grounds referred to in clauses (a) and (c) of sub-section (1) and clauses (b) and (c) of sub-section (2) entitling him to contest the validity of the award, the court may, if it thinks fit, either refuse enforcement of the award or adjourn the consideration thereof, giving such party a reasonable time within which to have the award annulled by the competent tribunal.

58. Enforcement of foreign awards. -Where the court is satisfied that the foreign award is enforceable under this Chapter, the award shall be deemed to be a decree of the court.59. Appealable orders. –(1) An appeal shall lie from the order refusing-(a) To refer the parties to arbitration under section 54; and(b) To enforce a foreign award under section 57, to the court authorised by law to hear appeals from such order.(2) No second appeal shall lie from an order passed in appeal under this section, but nothing in this section shall affect or take away any right to appeal to the Supreme Court. .60. Saving-Nothing in this Chapter shall prejudice any right, which any person would have had of enforcing in India of any award or of availing himself in India of any award if this Chapter had not been enacted.

LESSON-10:- CONCILIATION61. Application and scope. -(1) Save as otherwise provided by any law for the time being in force and unless the parties have otherwise agreed, this Part shall apply to conciliation of disputes arising out of legal relationship, whether contractual or not and to all proceedings relating thereto.(2) This Part shall not apply where by virtue of any law for the time being in force certain disputes may not be submitted to conciliation.62. Commencement of conciliation proceedings. –(1) The party initiating conciliation shall send to the other party a written invitation to conciliate under this Part, briefly identifying the subject of the dispute.(2) Conciliation proceedings shall commence when the other party accepts in writing the invitation to conciliate.(3) If the other party rejects the invitation, there will be no conciliation proceedings.(4) If the party initiating conciliation does not receive a reply within thirty days from the date on which he sends the invitation, or within such other period of time as specified in the invitation, he may elect to treat this as a rejection of the invitation to conciliate and if he so elects, he shall inform in writing the other party accordingly.63. Number of conciliators. –(1) There shall be one conciliator unless the parties agree that there shall be two or three conciliators.(2) Where there is more than one conciliator, they ought, as a general rule, to act jointly.

64. Appointment of conciliators. –(1) Subject to sub-section (2), -(a) In conciliation proceedings with one conciliator, the parties may agree on the name of a sole conciliator;(b) In conciliation proceedings with two conciliators, each party may appoint one conciliator;(c) In conciliation proceedings with three conciliators, each party may appoint one conciliator and the parties may agree on the name of the third conciliator who shall act as the presiding conciliator.(2) Parties may enlist the assistance of a suitable institution or person in connection with the appointment of conciliators, and in particular, -(a) A party may request such an institution or person to recommend the names of suitable individuals to act as conciliator; or(b) The parties may agree that the appointment of one or more conciliators be made directly by such an institution or person: Provided that in recommending or appointing individuals to act as conciliator, the institution or person shall have regard to such considerations as are likely to secure the appointment of an independent and impartial conciliator and, with respect to sole or third conciliator, shall take into account the advisability of appointing conciliators of a nationality other than the nationalities of the parties.

65. Submission of statements to conciliator. -

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(1) The conciliator, upon his appointment, may request each party to submit to him a brief written statement describing the general nature of the dispute and the points at issue. Each party shall send a copy of such statement to the other party.(2) The conciliator may request each party to submit to him a further written statement of his position and the facts and grounds in support thereof, supplemented by any documents and other evidence that such party deems appropriate. The party shall send a copy of such statement, documents and other evidence to the other party.(3) At any stage of the conciliation proceedings, the conciliator may request a party to submit to him such additional information, as he deems appropriate.Explanation. -In this section and all the following sections of this Part, the term “conciliator” applies to a sole conciliator, two or three conciliators as the case may be.

67. Role of conciliator. -(1) The conciliator shall assist the parties in an independent and impartial manner in their attempt to reach an amicable settlement of their dispute.(2) The conciliator shall be guided by principles of objectivity, fairness and justice, giving consideration to, among other things, the rights and obligations of the parties, the usages of the trade concerned and the circumstances surrounding the dispute, including any previous business practices between the parties.(3) The conciliator may conduct the conciliation proceedings in such a manner as he considers appropriate, taking into account the circumstances of the case, the wishes the parties may express, including any request by a party that the conciliator hear oral statements, and the need for a speedy settlement of the dispute.(4) The conciliator may, at any stage of the conciliation proceedings, make proposals for a settlement of the dispute. Such proposals need not be in writing and need not be accompanied by a statement of the reasons therefor.

68. Administrative assistance. -In order to facilitate the conduct of the conciliation proceedings, the parties, or the conciliator with the consent of the parties, may arrange for administrative assistance by a suitable institution or person.

69. Communication between conciliator and parties. –(1) The conciliator may invite the parties to meet him or may communicate with them orally or in writing. He may meet or communicate with the parties together or with each of them separately.(2) Unless the parties have agreed upon the place where meetings with the conciliator are to be held, such place shall be determined by the conciliator, after consultation with the parties, having regard to the circumstances of the conciliation proceedings.70. Disclosure of information. -When the conciliator receives factual information concerning the dispute from a party, he shall disclose the substance of that information to the other party in order that the other party may have the opportunity to present any explanation, which he considers appropriate: Provided that when a party gives any information to the conciliator subject to a specific condition that it be kept confidential, the conciliator shall not disclose that information to the other party.71. Co-operation of parties with conciliator. -The parties shall in good faith cooperate with the conciliator and, in particular, shall endeavor to comply with requests by the conciliator to submit written materials, provide evidence and attend meetings.72. Suggestions by parties for settlement of dispute. -Each party may, on his own initiative or at the invitation of the conciliator, submit to the conciliator suggestions for the settlement of the dispute.

73. Settlement agreements, -(1) When it appears to the conciliator that there exist elements of a settlement, which may be acceptable to the parties, he shall formulate the terms of a possible settlement and submit them to the parties for their observations. After receiving the observations of the parties, the conciliator may reformulate the terms of a possible settlement in the light of such observations.(2) If the parties reach agreement on a settlement of the dispute, they may draw up and sign a written settlement agreement. If requested by the parties, the conciliator may draw up, or assist the parties in drawing up, the settlement agreement.(3) When the parties sign the settlement agreement, it shall be final and binding on the parties and persons claiming under them respectively.(4) The conciliator shall authenticate the settlement agreement and furnish a copy thereof to each of the parties.

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74. Status and effect of settlement agreement. -The settlement agreement shall have the same status and effect as if it is an arbitral award on agreed terms on the substance of the dispute rendered by an arbitral tribunal under section 30.75. Confidentiality. -Notwithstanding anything contained in any other law for the time being in force, the conciliator and the parties shall keep confidential all matters relating to the conciliation proceedings. Confidentiality shall extend also to the settlement agreement, except where its disclosure is necessary for purposes of implementation and enforcement.76. Termination of conciliation proceedings. -The conciliation proceedings shall be terminated--(a) By the signing of the settlement agreement by the parties on the date of the agreement; or(b) By a written declaration of the conciliator, after consultation with the parties, to the effect that further efforts at conciliation are no longer justified, on the date of the declaration; or(c) By a written declaration of the parties addressed to the conciliator to the effect that the conciliation proceedings are terminated, on the date of the declaration; or(d) By a written declaration of a party to the other party and the conciliator, if appointed, to the effect that the conciliation proceedings are terminated, on the date of the declaration.

77. Resort to arbitral or judicial proceedings. -The parties shall not initiate, during the conciliation proceedings, any arbitral or judicial proceedings in respect of a dispute that is the subject-matter of the conciliation proceedings except that a party may initiate arbitral or judicial proceedings where, in his opinion, such proceedings are necessary for preserving his rights.

78. Costs. –(1) Upon termination of the conciliation proceedings, the conciliator shall fix the costs of the conciliation and give written notice thereof to the parties.(2) For the purpose of sub-section (1), “costs” means reasonable costs relating to-(a) The fee and expenses of the conciliator and witnesses requested by the conciliator with the consent of the parties;(b) Any expert advice requested by the conciliator with the consent of the parties;(c) Any assistance provided pursuant to clause (b) of sub-section (2) of section 64 and section 68;(d) Any other expenses incurred in connection with the conciliation proceedings and the settlement agreement.(3) The costs shall be home equally by the parties unless the settlement agreement provides for a different apportionment. All other expenses incurred by a party shall be home by that party.

79. Deposits. -(1) The conciliator may direct each party to deposit an equal amount as an advance for the costs referred to in sub-section (2) of section 78 which he expects will be incurred.(2) During the course of the conciliation proceedings, the conciliator may direct supplementary deposits in an equal amount from each party.(3) If the required deposits under sub-sections (1) and (2) are not paid in full by both parties within thirty days, the conciliator may suspend the proceedings or may make a written declaration of termination of the proceedings to the parties, effective on the date of that declaration.(4) Upon termination of the conciliation proceedings, the conciliator shall render an accounting to the parties of the deposits received and shall return any unexpended balance to the parties.80. Role of conciliator in other proceedings. -Unless otherwise agreed by the parties, -(a) The conciliator shall not act as an arbitrator or as a representative or counsel of a party in any arbitral or judicial proceeding in respect of a dispute that is the subject of the conciliation proceedings;(b) The conciliator shall not be presented by the parties as a witness in any arbitral or judicial proceedings.81. Admissibility of evidence in other proceedings. -The parties shall not rely on or introduce as evidence in arbitral or judicial proceedings, whether or not such proceedings relate to the dispute that is the subject of the conciliation proceedings, -(a) Views expressed or suggestions made by the other party in respect of a possible settlement of the dispute;(b) Admissions made by the other party in the course of the conciliation proceedings;(c) Proposals made by the conciliator;(d) The fact that the other party had indicated his willingness to accept a proposal for settlement made by the conciliator.

SUPPLEMENTARY PROVISIONS83. Removal of difficulties. –(1) If any difficulty arises in giving effect to the provisions of this Act, the Central Government may, by order published in the Official Gazette, make such provisions, not inconsistent with the provisions of this

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Act as appear to it to be necessary or expedient for removing the difficulty: Provided that no such order shall be made after the expiry of a period of two years from the date of commencement of this Act.(2) Every order made under this section shall, as soon as may be after it is made, be laid before each House of Parliament.84. Power to make rules. –(1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act.(2) Every rule made by the Central Government under this Act shall be laid, as soon as may be, after it is made before each House of Parliament while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

85. Repeal and saving. –(1) The Arbitration (Protocol and Convention) Act, 1937 (6 of 1937), the Arbitration Act, 1940 (10 of 1940) and the Foreign Awards (Recognition and Enforcement) Act, 1961 (45 of 1961) are hereby repealed.(2) Notwithstanding such repeal, -(a) The provisions of the said enactments shall apply in relation to arbitral proceedings which commenced before this Act came into force unless otherwise agreed by the parties but this Act shall apply in relation to arbitral proceedings which commenced on or after this Act comes into force;(b) All rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to this Act, be deemed respectively to have been made or issued under this Act.

86. Repeal of Ordinance 27 of 1996 and Saving. –(1) The Arbitration and Conciliation (Third) Ordinance, 1996 (27 of 1996) is hereby repealed.(2) Notwithstanding such repeal, any order, rule, notification or scheme made or anything done or any action taken is pursuance of any provision of the said Ordinance shall be deemed to have been made, done or taken under the corresponding provisions of this Act

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LESSON-11:- TORT LAW. THE LAW OF TORTS.

If contracts are the law of deals, torts is the law of duties. The law of torts is much more internally diverse than the law of contracts, but the central idea is

that people have certain interests which others have the obligation or duty to respect. The existence of these interests and the duty of others to respect them do not depend upon

promises or agreements: they are broader-gauged social obligations. With respect to many such interests, the violation of the duty to respect it is called a "tort," and

the tort law is that body of principles which defines these interests, duties, and the remedies available when the duties have not been met.

The interests protected by tort law are diverse and changing. Some of the key ones, but by no means all, are the following:

The interest in bodily integrity, and in particular the right to be free from offensive or harmful touchings. The commonest violation of this interest is the tort of ASSAULT (posing a threat of an offensive or harmful touching) or BATTERY (the offensive or harmful touching itself). If the interest threatened is life itself, the violation is the tort of WRONGFUL DEATH.

The interest in being free to move about, the violation of which is the tort of FALSE IMPRISONMENT.

The interest in one's reputation. The violation of this interest is DEFAMATION, which may take the form of LIBEL (written defamation) or SLANDER (spoken defamation).

The interest in controlling access to one's home or place of business. The violation of this interest is TRESPASS.

The interest against unreasonable interference with the use and enjoyment of one's residence or place of business, which would be the tort of NUISANCE.

Since tort law has been around a long time, much of its terminology sounds archaic, but as social expectations have changed, torts have been expanded, or new torts have arisen. The more "modern" torts include:

INVASION OF PRIVACY; The infliction of EMOTIONAL DISTRESS; and PRODUCTS LIABILITY, designed to protect the interest of consumers in protection from bodily

harm from consumer products.

In fact, as society's sense of duties changes, these changes are almost always reflected in tort law, which is the most elastic of the major bodies of private law.

The torts mentioned above all have very broad applicability. There are also many more specific duties, arising under more narrowly defined circumstances, which are enforced by tort law. One especially important group of such duties is referred to generically as FIDUCIARY DUTIES. A person subject to these duties is called a FIDUCIARY.

Broadly speaking, a fiduciary relationship is one in which the fiduciary is charged with putting the interests of the other party to the relationship ahead of his own in certain respects. The fiduciary is not only precluded from acting in a self-interested manner: he is required to act in the interests of the other party. Physicians are fiduciaries for their patients. Members of a board of

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directors are fiduciaries for their corporations. Trustees are fiduciaries for those whose assets they hold in trust.

Fiduciary duties highlight another aspect of the relationship of torts to contracts. There are some duties enforced by tort law which we owe to everybody we encounter in life, such as the duty to use the public ways in a manner that doesn't endanger the safety of others. However, many of the more refined duties enforced by tort law arise only in certain relationships which are first established by contract.

For example, you do not simply find yourself to be a director of a corporation, or, as a doctor, find yourself to have a patient. These relationships are typically contractual in origin; the parties involved agree to form the relationship and, to some extent, agree upon its terms. However, insofar as the law imposes fiduciary duties (or other tort duties), it is generally not left to the parties to negotiate the terms of these duties.

They are imposed by law. In fact, a fiduciary who tried to negotiate out of his fiduciary duties would typically by that act alone be deemed to be in breach of his fiduciary duty. For example, it would be wrong for a doctor to seek a patient's agreement to the provision of sub-standard care, or for the directors of a corporation to seek the corporations's agreement to unreasonably high compensation for directors.

Tort law thus has more pronounced moral overtones than contract law. To violate a contractual obligation, especially in a purely commercial setting between parties of equal bargaining power, may be a matter of moral indifference. To violate a duty enforced by tort law is wrong, and, with respect to some torts (especially fiduciary duties), a very serious moral matter.

Tort law is extremely complex, and distinctive bodies of doctrines have grown up around different tort interests.

For example, there is a complex interplay between the tort of defamation and the constitutionally protected right of freedom of expression, especially as to public figures. The law of trespass blends into the complex law of real property and its dense collection of rights and relationships, with tenants, mortgages, sub-leases, condominiums, etc. However, there are certain themes that run through much of tort law.

The most important of these are discussed below.

THE STANDARD OF CARE AND NEGLIGENCE. Generally, for a person to be liable under tort law principles, he must fail to fulfill a duty owed

another. Often this duty is expressed as a STANDARD OF CARE. Not every unfortunate result or accident represents a failure by someone to meet the applicable

standard of care. If two people are driving their cars carefully, but nevertheless have an accidental collision, there

will typically be no tort liability even if there has been serious injury. If a doctor exercises due care with respect to a surgical procedure for a patient, there is typically

no tort liability even if the patient dies as a result of the procedure, and even if, in light of facts that later become clear, retrospect, the decision to operate was a mistake. Typically, conduct is not tortious in the absence of a failure to meet the applicable standard of care.

The most common standard of care is the so-called REASONABLE PERSON or REASONABLE MAN standard, which is the general duty to take reasonable precautions to protect the interests of others from harm.

The reasonableness of precautions is evaluated under all the circumstances, including the costs of the precautions, and the social utility of the conduct at issue.

For example, it may be unreasonable for me to drive down a city street at 40 miles per hour, but not unreasonable for the emergency repair vehicle from the local gas company to do the same if it is responding to a report about a gas leak.

The failure to exercise reasonable care is typically referred to in law as NEGLIGENCE, and negligence is the most common basis of tort liability.

A person who is negligent does not necessarily intend to cause harm, and typically is simply inadvertent or inattentive to a risk.

Tort liability generally requires FAULT, and the law considers negligence a form of fault, although a relatively weak form.

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. CORPORATE LIABILITY FOR TORTS

Corporations, like other legal actors, are liable for the torts they commit. However, since corporations can only act through flesh-and-blood persons, the question that arises in applying this principle is: Who’s conduct, and which of their actions, is we going to consider conduct of the corporation?

There is no simple answer to this question, but it is generally true that the more responsibility an individual has in the corporate structure, the more likely his acts will be considered to be acts of the corporation.

So, for example, if the Board of Directors, or senior management, decides on a course of conduct that is later deemed tortious, the corporation will typically be considered to have committed the tort, and be liable under the same principles applicable to individuals.

However, if an individual with less responsibility, such as a truck driver, has an accident on the roadway in which the driver was negligent, the analysis is more complex.

The truck driver would of course be negligent in his own right, but injured parties will be much more interested in suing the corporation's "deep pocket" than suing the driver.

The corporation would probably be negligent if any of its policies contributed to the negligent act of the driver.

For example, the company might have a policy which strongly pressured drivers to drive too fast, or for longer periods than a person can remain alert. Or the corporation may have been negligent in the manner it selected, trained, or supervised its truck drivers.

Any of these acts would probably amount to corporate negligence. There would be many other factors to be considered in determining corporate negligence, such as: Was the negligent act contrary to corporate policy? (Which makes a finding of corporate negligence less likely); and, was the act within a zone of discretion or judgment granted to this individual by the corporation? (Which makes a finding of corporate negligence more likely)?

Very generally, the negligent acts of employees such as truck drivers, in contrast, say, to the acts of the CEO, are less likely to be considered to be the negligent acts of the corporation.

In fact, a person injured in an accident with a corporation's truck would probably not bother trying to establish corporate liability by an analysis such as sketched above. There are doctrines in tort law that has developed primarily in the context of corporate accountability which makes it possible to establish corporate liability on simpler bases.

The two most important are the doctrines of "vicarious liability" and "strict liability", each of which is discussed below.

Although neither is in theory limited to the corporate context, it is in fact within that context that both doctrines have had their most significant development.

STRICT LIABILITY AND CORPORATE ACCOUNTABILITY The statement made earlier that tort liability generally requires fault (in the form of either

negligence or intent) is subject to a major qualification. There is an expanding body of so-called STRICT LIABILITY tort law, in which a party is held

responsible for certain kinds of harm that is caused by its conduct without a showing that it was at fault in either of the traditional senses.

That is, even if it did not intend the harm, and took all reasonable precautions to prevent it (i.e., were not negligent), it is nevertheless held responsible in tort and must pay tort-like damages to whomever was harmed.

The most dramatic expansion of strict liability has been in the area of PRODUCTS LIABILITY law, which protects consumers against physical injury caused by the manufacturers (and sometimes the distributors) of consumer products.

However, even under "strict liability" principles, the party being held liable is not liable for any and all consequences of its actions.

Typically, there are limiting principles. For example, in the products liability area, a manufacturer bound by strict liability principles is not responsible for every harm a product causes.

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If an acquaintance of mine gives me a concussion by banging me over the head with a coffee pot, I can't sue the manufacturer of the pot. There is a requirement that the injury be due to a "DEFECT" in the product.

Without exploring here the complexities of the concept of "defect", it should be noted that the fact that a manufacturer exercised due care in the design of the product will not preclude a finding that there was a defect.

However, the requirement of a defect also keeps manufacturers from in effect insuring that under no circumstances will their products cause harm.

The policy justifications offered for strict liability in the consumer products area include the themes most often found in strict liability proposals generally: that strict liability avoids the difficulties of proving fault; that it can be designed to put legal responsibility where it will provide the most effective incentives to avoid future harm; and that it can function as a form of social insurance by placing the costs of harm on a party that can both afford and spread these costs.

The principles of strict liability are rarely applied to conduct by individuals. It has developed primarily in the business context, and been applied to corporations.

VICARIOUS LIABILITY AND CORPORATE ACCOUNTABILITY

"VICARIOUS LIABILITY" is present when one person (and that term is used here to include natural, flesh-and-blood persons, and "legal persons" such as corporations) is, as a matter of law, held liable for the tortious conduct of another person.

Vicarious liability (in which the law says "A" is responsible for the tortious conduct of "B") should not be confused with strict liability (in which the law says "A" is responsible for certain injurious consequences of its actions without the need to find that A's conduct involved "fault").

The broadest application of vicarious liability in tort law is to corporations, in the circumstances discussed in VIII above, where we considered the example of the corporate employee who was a truck driver and who caused an accident by driving negligently.

Under the doctrine of "vicarious liability", corporations are generally responsible for the torts of all of their employees, whether or not there was any corporate fault.

This is sometimes referred to as the doctrine of "RESPONDEAT SUPERIOR" (in which the MASTER - the archaic term for an employer - must respond for the torts of its SERVANTS - the archaic term for employees).

Not everyone who works for a corporation is an employee for purposes of vicarious liability. A person who is hired under an arrangement under which he is expected to exercise independent judgment and operate largely free of the employer's supervision is sometimes an INDEPENDENT CONTRACTOR.

The doctrine of Respondeat Superior does not apply to independent contractors, although, of course, there might be employer negligence if due care was not exercised in the selection or monitoring of the work of an independent contractor.

Doctors are often considered independent contractors of the hospitals with which they are affiliated.

Both strict liability (liability without fault) and vicarious liability (liability for the torts of others) have expanded primarily in the area of corporate liability.

These two trends, combined with the expansion of tort law generally, have markedly increased tort exposure for corporations.

CONTRIBUTORY AND COMPARATIVE NEGLIGENCE.

It often occurs that when a complaining party (called the PLAINTIFF) brings a lawsuit alleging that a harm he suffered was due to the tortious conduct of another (the DEFENDANT), the defendant will argue that, even though the defendant might have been negligent, the plaintiff was also negligent and that the plaintiff's negligence also contributed to the plaintiff's harm.

Negligence by the plaintiff which increased his own risk or aggravated his own harm is called CONTRIBUTORY NEGLIGENCE or COMPARATIVE NEGLIGENCE. If contributory or comparative negligence is found, it may bar the plaintiff's suit, or reduce the plaintiff's recovery.

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The doctrines of contributory and comparative negligence are afforded differing degrees of scope in different areas of tort law.

For example, if there is a dispute among the different parties which participated in the design and building of a skyscraper about who was at fault for a defect in the final structure, any party that was sued in tort would have a broad opportunity to attempt to establish that the negligence of the suing party also contributed to the problem.

By contrast, in medical malpractice, health care providers can raise only very limited issues that relate to the role of the patient in contributing to the hazards that resulted in injury.

For example, it would be legally relevant that a patient did not take prescribed medication, but conduct of the patient that caused the condition that required treatment would not be relevant, no matter how foreseeable and clear the risks of treatment.

LEESON-12:-LIMITATION ACT, 1963

Definitions (a) Applicant:- includes-(i) A petitioner;(ii) Any person from or through whom an applicant derives his right to apply;(iii) Any person whose estate is represented by the applicant as executor, administrator or other representative;(b) Application:- includes a petition;(c) Bill of Exchange:- includes a hundi and a cheque;(d)Bond:- includes any instrument whereby a person obliges himself to pay money to another, on condition that the obligation shall be void if a specified act is performed, or is not performed, as the case may be;(e)Defendant:- includes-(i) Any person from or through whom a defendant derives his liability to be sued;(ii) Any person whose estate is represented by the defendant as executor, administrator or other representative;(f) Easement:- includes a right not arising from contract, by which one person is entitled to remove and appropriate for his own profit any part of the soil belonging to another or anything growing in, or attached to, or subsisting upon, the land of another;(g)Foreign country:- means any country other than India;(h) Good faith:- Nothing shall be deemed to be done in good faith which is not done with due care and attention;(i) Plaintiff:- includes-(i) Any person from or through whom a plaintiff derives his right to sue;(ii) Any person whose estate is represented by the plaintiff as executor, administrator or other representative;(j)Period of Limitation:- means the period of limitation prescribed for any suit, appeal or application by the Schedule, and "prescribed period" means the period of limitation computed in accordance with the provisions of this Act;(k)Promissory Note:- means any instrument whereby the maker engages absolutely to pay a specified sum of money to another at a time therein limited, or on demand, or at sight;(l) Suit:- does not include an appeal or an application;(m)Tort:- means a civil wrong which is not exclusively the breach of a contract or the breach of a trust;(n)Trustee:- does not include a benamidar, a mortgagee remaining in possession after the mortgage has been satisfied or a person in wrongful possession without title.

LIMITATION OF SUITS, APPEALS AND APPLICATIONS3. Bar of limitation(1) Subject to the provisions contained in sections 4 to 24 (inclusive), every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed although limitation has not been set up as a defence.(2) For the purposes of this Act-(a) A suit is instituted-(i) In an ordinary case, when the plaint is presented to the proper officer;(ii) In the case of a pauper, when his application for leave to sue as a pauper is made; and(iii) In the case of a claim against a company which is being wound up by the court, when the claimant first sends in his claim to the official liquidator;(b) Any claim by way of a set off or a counter claim shall be treated as a separate suit and shall be deemed to have been instituted-

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(i) In the case of a set off, on the same date as the suit in which the set off is pleaded;(ii) In the case of a counter claim, on the date on which the counter claims is made in court;(c) An application by notice of motion in a High Court is made when the application is presented to the proper officer of that court.4. Expiry of prescribed period when court is closedWhere the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the date when the court reopens.Explanation: A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day.5. Extension of prescribed period in certain casesAny appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be, admitted after the prescribed period, if the appellant or the applicant satisfies the court that he had sufficient cause for not preferring the appeal or making the application within such period.Explanation: The fact that the appellant or the applicant was misled by any order, practice or judgement of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.6. Legal disability(1) Where a person entitled to institute a suit or make an application for the execution of a decree, is at the time from which the prescribed period is to be reckoned, a minor or insane, or an idiot, he may institute the suit or make the application within the same period after the disability has ceased, as would otherwise have been allowed from the time specified therefor in the third column of the Schedule.(2) Where such person is, at the time from which the prescribed period is to be reckoned, affected by two such disabilities, or where, before his disability has ceased, he is affected by another disability, he may institute the suit or make the application within the same period after both disabilities have ceased, as would otherwise have been allowed from the times so specified.(3) Where the disability continues up to the death of that person, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been allowed from the time so specified.(4) Where the legal representative referred to in sub-section (3) is, at the date of the death of the person whom he represents, affected by any such disability, the rules contained in sub-sections (1) and (2) shall apply.(5) Where a person under disability dies after the disability ceases but within the period allowed to him under this section, his legal representative may institute the suit or make the application within the same period after the death, as would otherwise have been available to that person had he not died.Explanation: For the purposes of this section 'minor' includes a child in the womb.

7. Disability of one of several personsWhere one of several persons jointly entitled to institute a suit or make an application for the execution of a decree is under any such disability, and a discharge can be given without the concurrence of such person, time will run against them all; but, where no such discharge can be given, time will not run as against any of them until one of them becomes capable of giving such discharge without the concurrence of the others or until the disability has ceased.Explanation I: This section applies to a discharge from every kind of liability, including a liability in respect of any immovable property.Explanation II: For the purposes of this section, the manager of a Hindu undivided family governed by the Mitakshara law shall be deemed to be capable of giving a discharge without the concurrence of the other members of the family only if he is in management of the joint family property.8. Special exceptionsNothing in section 6 or in section 7 applies to suits to enforce rights of pre-emption, or shall be deemed to extend, for more than three years from the cessation of the disability or the death of the person affected thereby, the period of limitation for any suit or application.9. Continuous running of timeWhere once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it:PROVIDED that where letters of administration to the estate of creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.10. Suits against trustees and their representativesNotwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable consideration), for the purpose of following in his or their

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hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.Explanation: For the purposes of this section any property comprised in a Hindu, Muslim or Buddhist religious or charitable endowment shall be deemed to be property vested in trust for a specific purpose and the manager of the property shall be deemed to be the trustee thereof.11. Suits on contracts entered into outside the territories to which the Act extends(1) Suits instituted in the territories to which this Act extends on contracts entered into in the State of Jammu and Kashmir or in a foreign country shall be subject to the rules of limitation contained in this Act.(2) No rule of limitation in force in the State of Jammu and Kashmir or in a foreign country shall be a defence to a suit instituted in the said territories on a contract entered into in that State or in a foreign country unless-(a) The rule has extinguished the contract; and(b) The parties were domiciled in that State or in the foreign country during the period prescribed by such rule.

COMPUTATION OF PERIOD OF LIMITATION12. Exclusion of time in legal proceedings(1) In computing the period of limitation for any suit, appeal or application, the day from which such period is to be reckoned, shall be excluded.(2) In computing the period of limitation for an appeal or an application for leave to appeal or for revision or for review of a judgement, the day on which judgement complained of was pronounced and the time requisite for obtaining a copy of the decree, sentence or order appealed from or sought to be revised or reviewed shall be excluded.(3) Where a decree or order is appealed from or sought to be revised or reviewed, or where an application is made for leave to appeal from a decree or order, the time requisite for obtaining a copy of the judgement shall also be excluded.(4) In computing the period of limitation for an application to set aside an award, the time requisite for obtaining a copy of the award shall be excluded.Explanation: In computing under this section the time requisite for obtaining a copy of a decree or an order, any time taken by the court to prepare the decree or order before an application for a copy thereof is made shall not be excluded.13. Exclusion of time in cases where leave to sue or appeal as a pauper is applied forIn computing the period of limitation prescribed for any suit or appeal in any case where an application for leave to sue or appeal as a pauper has been made and rejected, the time during which the applicant has been prosecuting in good faith his application for such leave shall be excluded, and the court may, on payment of the court fees prescribed for such suit or appeal, treat the suit or appeal as having the same force and effect as if the court fees had been paid in the first instance.14. Exclusion of time of proceeding bona fide in court without jurisdiction(1) In computing the period of limitation for any suit the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.(2) In computing the period of limitation for any application, the time during which the applicant has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of appeal or revision, against the same party for the same relief shall be excluded, where such proceeding is prosecuted in good faith in a court which, from defect of jurisdiction or other cause of a like nature, is unable to entertain it.(3) Notwithstanding anything contained in rule 2 of Order XXIII of the Code of Civil Procedure, 1908 (5 of 1908), the provisions of sub-section (1) shall apply in relation to a fresh suit instituted on permission granted by the court under rule 1 of that Order, where such permission is granted on the ground that the first suit must fail by reason of a defect in the jurisdiction of the court or other cause of a like nature.Explanation: For the purposes of this section-(a) In excluding the time during which a former civil proceeding was pending, the day on which that proceeding was instituted and the day on which it ended shall both be counted;(b) A plaintiff or an applicant resisting an appeal shall be deemed to be prosecuting a proceeding;(c) Misjoinder of parties or of causes of action shall be deemed to be a cause of a like nature with defect of jurisdiction.

15. Exclusion of time in certain other cases(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of

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the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.Explanation: In excluding the time required for obtaining the consent or sanction of the government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the government or other authority shall both be counted.(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded.

16. Effect of death on or before the accrual of the right to sue(1) Where a person who would, if he were living, have a right to institute a suit or make an application dies before the right accrues, or where a right to institute a suit or make an application accrues only on the death of a person, the period of limitation shall be computed from the time when there is a legal representative of the deceased capable of instituting such suit or making such application.(2) Where a person against whom, if he were living, a right to institute a suit or make an application would have accrued dies before the right accrues, or where a right to institute a suit or make an application against any person accrues on the death of such person, the period of limitation shall be computed from the time7 when there is a legal representative of the deceased against whom the plaintiff may institute such suit or making such application.(3) Nothing in sub-section (1) or sub-section (2) applies to suits to enforce rights of pre-emption or to suits for the possession of immovable property or of a hereditary office.

17. Effect of fraud or mistake(1) Where, in the case of any suit or application for which a period of limitation is prescribed by this Act-(a) The suit or application is based upon the fraud of the defendant or respondent or his agent; or(b) The knowledge of the right or title on which suit or application is founded is concealed by the fraud of any such person as aforesaid; or(c) The suit or application is for relief from the consequences of a mistake; or(d) Where any document necessary to establish the right of the plaintiff or applicant has been fraudulently concealed from him; the period of limitation shall not begin to run until the plaintiff or applicant has discovered the fraud or the mistake or could, with reasonable diligence, have discovered it; or in the case of a concealed document, until the plaintiff or the applicant first had the means of producing the concealed document or compelling its production:PROVIDED that nothing in this section shall enable any suit to be instituted or application to be made to recover or enforce any charge against, or set aside any transaction affecting, any property which-(i) In the case of fraud, has been purchased for valuable consideration by a person who was not a party to the fraud and did not at the time of the purchase know, or have reason to believe, that any fraud had been committed, or(ii) In the case of mistake, has been purchased for valuable consideration subsequently to the transaction in which the mistake was made, by a person who did not know, or have reason to believe, that the mistake had been made, or(iii) In the case of concealed document, has been purchased for valuable consideration by a person who was not a party to the concealment and, did not at the time of purchase know, or have reason to believe, that the document had been concealed.(2) Where a judgement-debtor has, by fraud or force, prevented the execution of a decree or order with the period of limitation, the court may, on the application of the judgement-creditor made after the expiry of the said period extend the period for execution of the decree or order: PROVIDED that such application is made within one year from the date of the discovery of the fraud or the cessation of force, as the case may be.

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18. Effect of acknowledgement in writing(1) Where, before the expiration of the prescribed period for a suit or application in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, or by any person through whom he derives his title or liability, a fresh period of limitation shall be computed from the time when the acknowledgement was so signed.(2) Where the writing containing the acknowledgement is undated, oral evidence may be given of the time when it was signed; but subject to the provisions of the IndianEvidence Act, 1872 (1 of 1872), oral evidence of its contents shall not be received.Explanation: For the purposes of this section-(a) An acknowledgement may be sufficient though it omits to specify the exact nature of the property or right, or avers that the time for payment, delivery, performance or enjoyment has not yet come or is accompanied by a refusal to pay, deliver, perform or permit to enjoy, or is coupled with a claim to set-off, or is addressed to a person other than a person entitled to the property or right;(b) The word "signed" means signed either personally or by an agent duly authorised in this behalf; and(c) An application for the execution of a decree or order shall not be deemed to be an application in respect of any property or right.

19. Effect of payment on account of debt or of interest on legacyWhere payment on account of a debt or of interest on a legacy is made before the expiration of the prescribed period by the person liable to pay the debt or legacy or by his agent duly authorised in this behalf, a fresh period of limitation shall be computed from the time when the payment was made: PROVIDED that, save in the case of payment of interest made before the 1st day of January, 1928, an acknowledgement of the payment appears in the handwriting of, or in a writing signed by, the person making the payment.Explanation: For the purposes of this section -(a) Where mortgaged land is in the possession of the mortgagee, the receipt of the rent or produce of such land shall be deemed to be a payment;(b) "Debt" does not include money payable under a decree or order of a court.20. Effect of acknowledgement or payment by another person(1) The expression "agent duly authorised in this behalf" in sections 18 and 19 shall, in the case of a person under disability, include his lawful guardian, committee or manager or an agent duly authorised by such guardian, committee or manager to sign the acknowledgement or make the payment.(2) Nothing in the said sections renders one of several joint contractors, partners, executors or mortgagees chargeable by reason only of a written acknowledgement signed by, or of a payment made by, or by the agent of, any other or others of them.(3) For the purposes of the said sections,-(a) An acknowledgement signed or a payment made in respect of any liability by or by the duly authorised agent of, any limited owner of property who is governed by Hindu law, shall be a valid acknowledgement or payment, as the case may be, against a reversioner succeeding to such liability; and(b) Where a liability has been incurred by or on behalf of a Hindu undivided family as such, an acknowledgement or payment made by, or by the duly authorised agent of, the manager of the family for the time being shall be deemed to have been made on behalf of the whole family.

21. Effect of substituting or adding new plaintiff or defendant(1) Where after the institution of a suit, a new plaintiff or, defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:PROVIDED that where the court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.(2) Nothing in sub-section (1) shall apply to a case where a party is added or substituted owing to assignment or devolution of any interest during the pendency of a suit or where a plaintiff is made a defendant or a defendant is made a plaintiff.

22. Continuing breaches and tortsIn the case of a continuing breach of contract or in the case of a continuing tort, a fresh period of limitation begins to run at every moment of the time during which the breach or the tort, as the case may be, continues.23. Suits for compensation for acts not actionable without special damageIn the case of a suit for compensation for an act which does not give raise to a cause of action unless some specific injury actually results therefrom, the period of limitation shall be computed from the time when the injury results.

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24. Computation of time mentioned in instrumentsAll instruments shall for the purposes of this Act be deemed to be made with reference to the Gregorian calendar.

ACQUISITION OF OWNERSHIP BY POSSESSION25. Acquisition of easement by prescription(1) Where the access and use of light or air to and for any building have been peaceably enjoyed therewith as an easement, and as of right, without interruption, and for twenty years, and where any way or watercourse or the use of any water or any other easement (whether affirmative or negative) has been peaceably and openly enjoyed by any person claiming title thereto as an easement and as of right without interruption and for twenty years, the right to such access and use of light or air, way, watercourse, use of water, or other easement shall be absolute and indefeasible.(2) Each of the said periods of twenty years shall be taken to be a period ending within two years next before the institution of the suit wherein the claim to which such period relates is contested.(3) Where the property over which a right is claimed under sub-section (1) belongs to the government that sub-section shall be read as if for the words "twenty years" the words "thirty years" were substituted.Explanation: Nothing is an interruption with the meaning of this section, unless where there is an actual discontinuance of the possession or enjoyment by reason of an obstruction by the act of some person other than the claimant, and unless such obstruction submitted to or acquiesced in for one year after the claimant has notice thereof and of the person making or authorising the same to be made.

26. Exclusion in favour of reversioner of servient tenementWhere any land or water upon, over or from, which any easement has been enjoyed or derived has been held under or by virtue of any interest for life or in terms of years exceeding three years from the granting thereof the time of the enjoyment of such easement during the continuance of such interest or term shall be excluded in the computation of the period of twenty years in case the claim is, within three years next after the determination of such interests or term resisted by the person entitled on such determination to the said land or water.27. Extinguishment of right to propertyAt the determination of the period hereby limited to any person for instituting a suit for possession of any property, his right to such property shall be extinguished.29. Saving(1) Nothing in this Act shall affect section 25 of the Indian Contract Act, 1872 (9 of 1872).(2) Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of s. 3 shall apply as if such periods were the periods prescribed by the Schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in sections 4 to 24 (inclusive) shall apply only in so far as, and to the extent to which, they are not expressly excluded by such special or local law.(3) Save as otherwise provided in any law for the time being in force with respect to marriage and divorce, nothing in this Act shall apply to any suit or other proceeding under any such law.(4) Sections 25 and 26 and the definition of "easement" in section 2 shall not apply to cases arising in the territories to which the Indian Easements Act, 1882 (5 of 1882), may for the time being extend.

30. Provision for suits, etc., for the prescribed period is shorter than the period prescribed by the Indian Limitation Act, 1908Notwithstanding anything contained in this Act-(a) Any suit for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908 (9 of 1908), may be instituted within a period of 3[seven years] next after the commencement of this Act or within the period prescribed for such suit by the Indian Limitation Act, 1908, whichever period expires earlier: Provided that if in respect of any such suit, the said period of seven years expires earlier than the period of limitation prescribed therefor under the Indian Limitation Act, 1908 and the said period of seven years together with so much of the period of limitation in respect of such suit under the Indian Limitation Act, 1908 (9 of 1908), as has already expired before the commencement of this Act is shorter than the period prescribed for such suit under this Act, then, the suit may be instituted within the period of limitation prescribed therefor under this Act;](b) Any appeal or application for which the period of limitation is shorter than the period of limitation prescribed by the Indian Limitation Act, 1908, may be preferred or made within a period of ninety days next after the commencement of this Act or within a period prescribed for such appeal or application by the Indian Limitation Act, 1908, whichever period expires earlier.

31. Provisions as to barred or pending suits, etc.Nothing in this Act shall-

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(a) Enable any suit, appeal or application to be instituted, preferred or made, for which the period of limitation prescribed by the Indian Limitation Act, 1908, expired before the commencement of this Act; or(b) Affect any suit, appeal or application instituted, preferred or made before, and pending at, such commencement.

LESSON-13:-THE INDIAN EVIDENCE ACT, 1872

Interpretation clause - In this Act the following words and expressions are used in the following senses, unless a contrary intention appears from the context: -Court: - "Court" includes all Judges and Magistrates, and all people, except arbitrators, legally authorized to take evidence.Fact: - "Fact" means and includes -1. Anything, state of things, or relation of things, capable of being perceived by the senses;2. Any mental condition of which any person is conscious.Illustrationsa. That there are certain objects arranged in a certain order in a certain place, is a fact.b. That a man heard or saw something is a fact.c. That a man said certain words is a fact.d. That a man holds a certain opinion, has a certain intention, and acts in good faith or fraudulently, or uses a particular word in a particular sense, or is or was at a specified time conscious of a particular sensation, is a fact.e. That a man has a certain reputation is a fact.Relevant: - One fact is said to be relevant to another when the one is connected with the other in any of the ways referred to in the provisions of this Act relating to the relevancy of facts.Fact in issue:- The expression "facts in issue" means and includes-any fact from which, either by itself or in connection with other fact, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows.Explanation - Whenever, under the provisions of the law for the time being in force relating to Civil Procedure, any Court records an issue of fact, the fact to be asserted or denied in the answer to the such issue, is a fact in issue.IllustrationsA is accused of the murder of B. At his trail the following facts may be in issue: that A caused B's death; that A intended to cause B's death; that A had had received grave and sudden provocation from B; that A at the time of doing the act, which caused B's death, was by reason of unsoundness of mind, incapable of knowing its nature.Document:- "Document" means any matter expressed or described upon any substance by means of letter, figures or makes, or by more than one of those means, intended to be used, or which may be used, for the purpose of recording that matter.IllustrationsWriting is a document; Words printed, lithographed or photographed are document; A map or plan is a document; An inscription on a metal plate or stone is a document; A caricature is a document.Evidence: - "Evidence" means and includes -(1) All statements which the Court permits or requires to be made before it by witnesses, in relation to matters of fact under inquiry; such statements are called oral evidence.(2) All documents produced for the inspection of the Court; such documents are called documentary evidence.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: - A fact is said to be disproved when, after considering the matters before it, theCourt either believes that it does not 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 does not exist.Not proved: - A fact is said not to be proved when it is neither proved nor disproved.["India" means the territory of India excluding the State of Jammu and Kashmir.]4.May presume: - Whenever it is provided by this Act that the Court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of it.

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Shall presume: - Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved.Conclusive proof: - Where one fact is declared by this Act to be conclusive proof of another, the Court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving it.

The Relevancy Of Facts5. Evidence may be given of facts in issue and relevant facts - Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts as are hereinafter declared to be relevant, and of no others.Explanation - This section shall not enable any person to give evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force relating to CivilProcedure.Illustrations(a) A is tried for the murder of B by beating him with a club with the intention of causing his death. At A's trial the following facts are in issue - A's beating B with the club; A's causing B's death by such beating; A's intention to cause B's death.(b) A suitor does not bring with him and have in readiness for production at the first hearing of the case, a bond on which he relies. This section does not enable him to product the bond or prove its contents at a subsequent stage of the proceedings otherwise than in accordance with the conditions prescribed by the Code of Civil Procedure.6. Relevancy of facts forming part of same transaction - Facts which, though not in issue are so connected with a fact in issue as to form part of the same transaction, are relevant, whether they occurred at the same time and place or at different times and places.Illustrations(a) 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 is as to from part of the transaction, is a relevant fact.(b) A is accused of waging war against the Government of India by taking part in an armed insurrection in which property is destroyed, troops are attacked and goals are broken open. The occurrence of these facts is relevant, as forming part of the general transaction, though A may not have been present at all of them.(c) A sues B for a libel contained in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the libel arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the libel itself.(d) The question is whether certain goods ordered from B were delivered to A. the goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.7. Facts which are occasion, cause or effect of facts in issue - Facts Which are the occasion, cause or effect, immediate or otherwise, of relevant facts, or facts in issue, or which constitute the state of things under which they happened, or which afforded an opportunity for their occurrence or transaction, are relevant.Illustrationsa. The question is, whether A robbed B. The facts that, shortly before the robbery B went to a fair with money in his possession, and that he showed it or mentioned the fact that he had it, to third persons, are relevant.b. The question is, whether a murdered B. Marks on the ground, produced by a struggle at or near the place where the murder was committed, are relevant facts.(c) The question is, whether A poisoned B.The state of B's health before the symptoms ascribed to poison and habits of B, known to A, which afforded an opportunity for the administration of poison, are relevant facts.8. Motive preparation and previous or subsequent conduct - Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto.Explanation 1. - The word "conduct" in this section does not include statements unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other section of this Act.Explanation 2. - When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct is relevant.Illustrationsa. A is tried for the murder of B. The facts that, A murdered C, that B knew that A had murdered C, and that B had tried to extort money from A by threatening to make his knowledge public, are relevant.

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b. A sues B upon a bond for payment of money. B denies the making of the bond. The fact that, at the time when the bond was alleged to be made, B required money for a particular purpose, it relevant.c. A is tried for the murder of B by poison. The fact that, before the death of B, A procured poison similar to that which was administered to B, is relevant.d. The question is, whether a certain document is the will of A. The facts that not long before the date of the alleged will A made inquiry into matters to which the provisions of the alleged will relate that he consulted vakils in reference to making the will, and that he caused drafts or other wills to be prepared of which he did not approve, are relevant.e. A is accused of a crime. The facts, either before or at the time of, or after the alleged crime, A provided evidence which would tend to give to the facts of the case an appearance favorable to himself, on that he destroyed or concealed evidence, or prevented the presence or procured the absence of persons who might have been witnesses, or suborned persons to give false evidence respecting it, are relevant.f. The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence - "the police are coming to look for the man who robbed B" and that immediately afterwards A ran away, are relevant.g. The question is, whether A owes B rupees 10,000. The fact that, A asked C to lend him money, an that D said to C in A's presence and hearing "Advice you The Orient Tavern to trust A, for he owes B 10,000 rupees" and that A went away without making any answer, are relevant facts.h. The question is, whether A committed a crime. The facts that, A absconded after receiving a litter warning him that inquiry was being made for the criminal, and the contents of the letter, are relevant.i. A is accused of a crime. The facts that, after the commission of the alleged crime, he absconded or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant.j. The question is whether A was ravished. The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which the complaint was made, are relevant. The facts that, without making a complaint, she said that she had been ravished is not relevant as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.k. The question is whether A was robbed. The fact that, soon after the alleged robbery, he made a complaint, relating to the offence, the circumstances under which, and the terms in which the complaint was made, are relevant. The fact that he said he had been robbed without making any complaint, is not relevant, as conduct under this section, though it may be relevant as a dying declaration under section 32, clause 1, or as corroborative evidence under section 157.9. Facts necessary to explain or introduce relevant facts - Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by a fact in issue or relevant fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose.Illustrationsa. The question is, whether a given document is the will of A. The state of A's property and of his family at the date of the alleged will may be relevant facts.(b) A sues B for a libel imputing disgraceful conduct to A;B affirms that the matter alleged to be libelous is true. The position and relations of the parties at the time when the libel was published may be relevant facts as introductory to the facts in issue.The particulars of a dispute between A and B about a matter unconnected with the alleged libel are irrelevant, though the fact that there was a dispute may be relevant if it affected the relations between A and B.a.) A is accused of a crime. The fact that, soon after the commission of the crime, A absconded from his house, is relevant under section 8, as a conduct subsequent to and affected by facts in issue. The fact that, at the time when he left home he had sudden and urgent business at the place to which he went is relevant, as tending to explain the fact that he left home suddenly. The details of the business on which he left are not relevant except in so far as they are necessary to show that the business was sudden and urgent.(d) A sues B for inducing C to break a contract of service made by him with A.C, on leaving A's service, says to A - "I am leaving you because B has made me better offer." The statement is a relevant fact as explanatory of C's conduct, which is relevant as a fact in issue.(e) A, accused of theft is seen to give the stolen property to B, who is seen to give it to A's wife.B says as he delivers it "A says you are to hide this." B's statement is relevant as explanatory of a fact which is pat of the transaction.(f) A is tried for a riot and is proved to have marched at the head of a mob. The cries of the mob are relevant as explanatory of the nature of the transaction.

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10. Things said or done by conspirator in reference to common design - Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose showing that any such persons was a party to it. Reasonable grounds exists for believing that A has joined in a conspiracy to wage war againstthe Government of India The facts that, B procured arms in Europe for the purpose of the conspiracy, C collected money in Calcutta for a like object, D Persuaded persons to join the conspiracy in Bombay. E published writings advocating the object in view at Agra, and F transmitted from Delhi to G at Kabul the money which C had collected at Calcutta, and the contents of a letter written by H giving an account of the conspiracy, are each relevant, both to prove the existence of the conspiracy, and to prove A's complicity in it, although he may have been ignorant of all of them and although the persons by whom they were done were strangers to him, and although they may have taken place before he joined the conspiracy or after he left it.

11. When Facts not otherwise relevant become relevant - Facts not otherwise relevant are 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.Illustrationsa. The question is, whether A committed a crime at Calcutta on a certain day. The fact that, on that day, A was at Lahore is relevant. The fact that, near the time when the crime was committed, A was at a distance from the place where it was committed, which would render it highly improbable, though not impossible, that he committed it, is relevant.b. The question is, whether A committed a crime. The circumstances are such that the crime must have been committed either by A, B, C or D. Every fact which shows that the crime could have been committed by no one else and that it was not committed by either B, C or D is relevant.

12. In suits for damages, facts tending to enable Court to determine amount are relevant -In suits in which damages are claimed, any fact which will enable the Court to determine the amount of damages which ought to be awarded is relevant.13. Facts relevant when right or custom is in question - Where the question is as to existence of any right or custom, the following facts are relevant:(a) Any transaction by which the right or custom in question was created, claimed modified, recognized, asserted or denied, or which was inconsistent with its existence;a. Particular instances in which the right or custom was claimed, recognized, or exercised, or in which its exercise was disputed, asserted, or departed from.IllustrationsThe question is whether A has a right to a fishery. A deed conferring the fishery on A's ancestors, a mortgage of the fishery by A's father, a subsequent grant of the fishery by A's father irreconcilable with the mortgage particular instances in which A's father exercised the right or in which the exercise of the right was stopped by A's neighbors, are relevant facts.14. Facts showing existence of state of mind or of body or bodily feeling - Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, ill-will or goodwill towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind or body or bodily feeling is in issue or relevant.Explanation 1 - A fact relevant as showing the existence of a relevant state of mind must show that the state of mind exists, not generally but in reference to the particular matter in question.Explanation 2. - But where, upon the trail of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of this Section, the previous conviction of such person shall also be a relevant fact.Illustrations(a) A is accused of receiving stolen goods knowing them to be stolen. It is proved that he was in possession of a particular stolen article. The fact that, at the same time, he was in possession of many other stolen articles is relevant, as tending to show that he knew each and all of the articles of which he was in possession to be stolen.(b) A is accused of fraudulently delivering to another person a counterfeit coin which, at the time when he delivered it, he knew each and all of the articles of which he was in possession to be stolen. The fact that, at the time of delivery A was possessed of a number of other pieces of counterfeit coin, is relevant.

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The fact that, A had been previously convicted of delivering to another person as genuine a counterfeit coin knowing it to be counterfeit is relevant.(c) A sues B for damage done by a god of B's which B knew to be ferocious. The facts that, the dog had previously bitten X, Y and Z and that they had made complaints to B are relevant.a. The question is, whether A, the acceptor of a bill of exchange, knew that the name of payee was fictitious. The fact that, A had accepted other bills drawn in the same manner before they could have been transmitted to him by the payee if the payee had been a real person, is relevant as showing that A knew that the payee was a fictitious person.b. A is accused of defaming B by publishing an imputation intended to harm the reputation of B. The fact of previous publications by A respecting B, showing ill-will on the part of A towards B is relevant, as proving A's intention to harm B's reputation by the particular publication in question. The facts that, there was no previous quarrel between A and B, and that A repeated the matter complained of as he heard it, are relevant, as showing that A did not intend to harm the reputation of B.(f) A is sued by B for fraudulently representing to B that C was solvent, whereby B, being induced to trust C, who was insolvent, suffered loss. The fact that, at the time when A represented C to be solvent, C was supposed to be solvent by his neighbors and by persons dealing with him, is relevant, as showing that A made the representation in good faith.(g) A is sued by B for the price of work done by B, upon a house of which A is owner, by the order of C, a contractor. A's defence is that B's contract was with C.The fact that A paid C for the work in question is relevant, as proving that A did, in good faith, make over to C the management of the work in question, so that C was in a position to contract with B on C's own account, and not as agent for A.(h) A is accused of the dishonest misappropriation of property which he had found, the question is whether, when he appropriated it, he believed in good faith, that the real owner could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not in good faith believe that the real owner of the property could not be found. The fact that public notice of the loss of the property had been given in the place where A was, is relevant, as showing that A did not good faith believe that the real owner of the property could not be found.The fact that A knew, or had reason to believe, the notice was given fraudulently by C who had heard of the loss of the property and wished to set up a false claim to it, is relevant as showing that the fact that A knew of the notice did not disprove A's good faith.(i) A is charged with shooting at B with intent to kill him. In order to show A's intent, the fact ofA's having previously shot at B may be proved.(j) A is charged with sending threatening letters to B. Threatening letters previously sent by A to B may be proved, as showing the intention of the letters.(k) The question is, whether A has been guilty of cruelty towards B, his wife. Expressions of their feeling towards each other shortly before or after the alleged cruelty, are relevant facts.(l) The question is, whether A's death was caused by poison.Statement made by A during hiss illness as to his symptoms, are relevant facts.(m) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. Statements made by A as to the state of his health at or near the time in question, are relevant facts.(n) A sues B for negligence in providing him with a carriage for hire not reasonably fit for use, whereby A was injured. The fact that, B's attention was drawn on other occasions to the defect of that particular carriage is relevant. The fact that, B was habitually negligent about the carriage which he let to hire is relevant.(o) A is tried for the murder of B by intentionally shooting him dead. The fact that, A on other occasions shot a B is relevant as showing his intention to shoot B. The fact that, A was in the habit of shooting at people with intent to murder them, is irrelevant.(p) A is tried for a crime. The fact that, he said something indicating an intention to commit that particular crime is relevant. The fact that, he said something indicating a general disposition to commit crimes of that class, is irrelevant..

15. Facts bearing on question whether act was accidental or intentional - When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrence, in each of which the person doing the act was concerned, is relevant.Illustrationsa. A is accused of burning down his house in order to obtain money for which it is insured.

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The fact that, A lived in several houses successively each of which he insured, in each of which he insured, in each of which a fire occurred, and after each of which fires A received, payment from a different insurance office, are relevant, as tending to show that the fires were not accidental.(b) A is employed to receive money from the debtors of B. It is A's duty to make entries in a book showing the amounts received by him. He makes an entry showing that on a particular occasion he received less than he really did receive. The question is, whether his false entry was accidental or intentional. The facts that, other entries made by A in the same book are false, and that the false entry is in each case in favour of A, are relevant.(c) A is accused of fraudulently delivering to B a counterfeit rupee. The question is, whether the delivery of the rupee was accidental. The facts that, soon before or soon after the delivery to B, A delivered counterfeit rupees to C,D and E are relevant, as showing that the delivery to B was not accidental.17. Admission defined - An admission is a statement, oral or documentary which suggests any inference as to any fact in issue or relevant fact, and which is made by any of the persons and under the circumstances hereinafter mentioned.18. Admission by party to proceeding or his agent; by suitor in representative character; by party interested in subject-matter; by person from whom interest derived – Statements made by a party to the proceeding, or by an agent to any such party, whom the Court regards, under the circumstances of the case, as expressly or impliedly authorized by him to made them, are admissions.By suitor in representative character - Statements made by parties to suits suing or sued in a representative character, are not admissions, unless they were made while the party making them held that character.Statements made by -(1) By party interested in subject matter; persons who have any proprietary or pecuniary interest in the subject-matter of the proceeding and who make the statement in their character of persons so interested; or(2) By person from whom interest derived; persons from whom the parties to the suit have derived their interest in the subject-matter of the suit, are admissions, if they are made during the continuance of the interest of the persons making the statements.19. Admissions by persons whose position must be proved as against party to suit-Statements made by persons whose position or liability it is necessary to prove as against any party to the suit, are admissions, if such statements would be relevant as against such persons in relation to such position or liability in a suit brought by or against the made if they are made whilst the person making them occupies such position or is subject of such liability.IllustrationA undertakes to collect rent for B. B sues A for not collecting rent due from C to B. A denies that rent was due from C to B. A statement by C that he owned B rent is an admission, and is a relevant fact as against A, if A denies that C did owe rent to B.

20. Admission by persons expressly referred to by party to suit - Statements made by persons to whom a party to the suit has expressly referred for information in reference to a matter in dispute are admissions.IllustrationThe question is, whether a horse sold by A to B is sound A says to B "Go and ask CC knows all about it" C's statement is an admission.

21. Proof of admission against persons making them, and by or on their behalf – Admissions are relevant and may be proved as against the person who makes them, or his representative in interest; but they con not be proved by or on behalf of the person who makes them or by his representative in interest, except in the following cases.(1) An admission ma be proved by or on behalf of the person making it, when it is of such a nature that, if the person making it were dead it would be relevant as between third person under section 32.(2) An admission may be proved by or on behalf of the person making it, when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable.(3) An admission may be proved by or on behalf of the person making it, if it is relevant otherwise than as an admission.Illustrations(a) The question between A and B is, whether a certain deed is or is not forged. A affirms that it is genuine, B that it is forged. A may prove a statement by B that the deed is genuine, and B may prove a statement by A that the deed is forged; but A cannot prove a statement by himself that the deed is genuine nor con B Prove a statement by himself that the deed is gorged.(b) A, the captain of a ship, is tried for casting her away. Evidence is given to show that the ship was taken out of her proper course. A produces a book kept by him in the ordinary course of his business

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showing observations alleged to have been taken by him from day to day, and indicating that the ship was not taken out of her proper course. A may prove these statement, because they would be admissible between third parties, if he were dead under Section 32, Clause (2).(c) A is accused of a crime committed by him at Calcutta. He produces a letter written by himself and dated at Lahore on that day, and bearing the Lahore post-mark of that day. The statement in the date of the letter is admissible, because if A were dead it would be admissible under Section 32, Clause (2).(d) A is accused of receiving stolen goods knowing them to be stolen. He officers to prove that he refused to sell them below their value. A may prove these statements though they are admissions, because they are explanatory of conduct influenced by facts in issue.(e) A is accused of fraudulently having in his possession counterfeit coin which he knew to be counterfeit. He offers to prove that he asked a skilful person to examine the coins as he doubted whether it was counterfeit or not, and that person did examine it and told him it was genuine. A may prove these facts for the reasons stated in the last proceeding illustration.22. When oral admission as to contents of documents are relevant - Oral admissions as to the contents of a document are not relevant unless and until the party proposing them shows that he is entitled to give secondary evidence of the contents of such document under the rules hereinafter contained, or unless the genuineness of a document produced is in question.23. Admission in Civil cases, when relevant - In civil cases no admission is relevant, if it is made either upon an express condition that evidence of it is not to be given, or under circumstances from which the court can infer that the parties agreed together that evidence of it should not be givenExplanation - Nothing in this section shall be taken to exempt any barrister, pleader, attorney or vakil from giving evidence of any matter of which he may be compelled to give evidence under Section 126.24. Confession by inducement, threat or promise when irrelevant in criminal proceeding -A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise, having reference to the charge against the accused person, proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds, which would appear to him reasonable, for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceeding against him.25. Confession to police officer not to be proved - No confession made to police officer shall be proved as against a person accused of any offence.26. Confession by accused while in custody of police not to be proved against him – No confession made by any person whilst he is in the custody of a police-officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person.Explanation - In this section "Magistrate" does not include the head of a village discharging magisterial functions in the Presidency of Fort St. George or elsewhere, unless such headman is a Magistrate exercising the powers of a Magistrate under the Code of Criminal Procedure,1898 (V of 1898).27. How much of information received from accused may be proved - Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved.28. Confession made after removal of impression caused by inducement, threat or promise, relevant - If such a confession as is referred to in Section 24 is made after the impression caused by any inducement, threat or promise has, in the opinion of the Court been fully removed it is relevant.29. Confession otherwise relevant not to become irrelevant because of promise of secretary etc. - If such a confession is otherwise relevant, it does not become it was made under a promise of secrecy. or in consequence of a deception practiced on the accused person for the purpose of obtaining it, or when he was drunk, or because it was made in answer to question which he need not have answered, whatever may have been the form of those question, or because he was not warned that he was bound to make such confession, and that the evidence of it might be given against him.30. Consideration of proved confession affecting person making it and others jointly under trail for same offence - When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession.Explanation - "Offence" as used in this Section, includes the abutment of, r attempt to commit, the offence.Illustrations(a) A and B are jointly tried for the murder of C. It is proved that A said - "B and I murdered C". The court may consider the effect of this confession as against B.(b) A is on his trail for the murder of C. There is evidence to show that C was murdered by A and B, and that B said, "A and I murdered C". The statement may not be taken into consideration by the Court against A as B is not being jointly tried.

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31. Admissions not conclusive proof but may estop - Admissions are not conclusive proof of the matters admitted, but they may operate as estopples under the provisions hereinafter contained.

Statements by persons who cannot be called as witness32. Case in which statement of relevant fact by person who is dead or cannot be found, etc. is relevant - Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the Court unreasonable, are themselves relevant facts in the following cases -(1) When it relates to cause of death - When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.(2) Or is made in course of business - When the statement was made by such person in the ordinary course of business, and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business, or in the discharge of professional duty; or of an acknowledgement written or signed by him of the receipt of money, goods securities or property of any kind; or of a document used in commerce written or signed by him or of the date of a letter or other document usually dated, written or signed by him.(3) Or against interest of maker - When the statement is against the pecuniary or proprietary interest of the person making it, or when, if true it would expose him or would have exposed him to criminal prosecution or to a suit for damages.(4) Or gives opinion as to public right or custom, or matters of general interest - When the statement gives the opinion of any such person, as to the existence of any public right or custom or matter of public or general interest of the existence of which if it existed, he would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen.(5) Or relates to existence of relationship - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.(6) Or is made in will or deed relating to family affairs - When the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree, or upon any tombstone, family portrait or other thing on which such statements are usually made, and when such statement was made before the question in dispute was raised.(7) Or in document relating to transaction mentioned in section 13, Clause (a). - When the statement is contained in any deed, will or other document which relates to any such transaction as is mentioned in Section 13, Clause (a).(8) Or is made by several persons and express feelings relevant to matter in question -When the statement was made by a number of persons, and expressed feelings or impressions on their part relevant to the matter in question.Illustrations(a) The question is, whether A was murdered by B; or A dies of injuries received in a transaction in the course of which she was ravished. The question is, whether she was ravished by B; or The question is, whether A was killed by B under such circumstances that a suit would lie against B by A's widow. Statement made by A as to the cause of his or her death referring respectively to the murder, the rape, and the actionable wrong under consideration, are relevant facts.a. The question is, as to the date of A's birth. An entry in the dairy of a deceased surgeon, regularly kept in the course of business, stating that, on a given day he attended A's mother and delivered her of a son, is a relevant fact.b. The question is, whether A was in Calcutta on a given day. A statement in the diary of a deceased solicitor, regularly kept in the course of business that, on a given day the solicitor attended A at a place mentioned in Calcutta, for the purpose of conferring with him upon specified business, is a relevant fact.c. The question is, whether a ship sailed from Bombay harbour on a given day. A letter written by a deceased member of a merchant's firm by which she was chartered to their correspondents in London, to whom the cargo was consigned, stating that the ship sailed on a given day from Bombay harbour is a relevant fact.d. The question is whether rent was paid to A for certain land. A letter from A's deceased agent to A, saying that he had received the rent on A's account and held it at A's orders, is a relevant fact.e. The question is, whether A and B were legally married. The statement of a deceased clergyman that he married them under such circumstances that the celebration would be a crime is relevant.

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(g) The question is, whether A, a person who cannot be found, wrote a letter on a certain day. The fact that a letter written by him is dated on that day is relevant.(h) The question is what the cause of the wreck of a ship was. A protest made by the Captain, whose attendance cannot be procured, is a relevant fact.(i) The Question is, whether a given road is a public way. A statement by A, a deceased headman of the village, that the road was public, is a relevant fact.(j) The question is what the price of grain was on a certain day in particular market. A statement of the price, made by a deceased banya, in the ordinary course of his business, is a relevant fact.(k) The question is, whether A, who is dead, was the father of B. Statement by A that B was his won, is a relevant fact.(l) The question is, what the date of the birth of A. was A letter from A's deceased father to a friend, announcing the birth of A on a given day, is a relevant fact.(m) The question is, whether and when, A and B were married. An entry in a memorandum book by C, the deceased father of B, of his daughter's marriage with A on a given date, is a relevant fact.(n) A sues B for a libel expressed in a painted caricature exposed in a ship window. The question is, as to the similarity of the caricature and its libelous character. The remarks of a crowd of spectators on these points may be proved.

33. Relevancy of certain evidence for proving, in subsequent proceeding, the truth of facts therein stated - Evidence given by a witness in a judicial proceeding, or before any person authorized by law to take it is relevant for the purpose of proving, in a subsequent judicial proceeding, or in a letter stage of the same judicial proceedings, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept our of the way by the adverse party or if his presence cannot be obtained without, an amount of delay of expense which, under the circumstances of the case, the Court considers unreasonable; Provided -That the proceeding was between the same parties or their representatives in interest; That the adverse party in the first proceeding had the right and opportunity to cross-examine; That the questions in issue were substantially the same in the first as in the second proceeding.Explanation - A criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused within the meaning of this section.

Statements made under special circumstances34. Entries in books of account when relevant - Entries in books of account, regularly kept in the course of business are relevant whenever they refer to a matter into which the Court has to inquire, but such statements shall not alone be sufficient evidence to charge any person with liability.IllustrationA sues B for Rs. 1,000/- and shows entries in his account books showing B to be indebted to him to this amount. The entries are relevant but are not sufficient, without other evidence, to prove the debt.35. Relevancy of entry in public record, made in performance of duty - An entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is itself a relevant fact.36. Relevancy of statements in maps, charts and plans - Statements of facts in issue or relevant facts, made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of the Central Government or any State Government, as to matters usually represented or stated in such maps, charts, or plans are themselves facts.37. Relevancy of statements as to fact of public nature contained in certain Acts or notifications - When the court has to form an opinion as to the existence of any facts of a public nature, any statement of it made in recital contained in any Act of Parliament of the United Kingdom or in any Central Act, Provincial Act or a State Act or in a Government notification by the Crown Representative appearing in the Official Gazette or in any printed paper purporting to be the London Gazette or the Government Gazette of any dominion, colony or possession of His Majesty, is a relevant fact.38. Relevancy of statements as to any law contained in law books - When the Court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, any report of a ruling of the Courts of such country contained in a book purporting to be a report of such rulings, is relevant.39. What evidence to be given when statement forms part of a conversation, documents, books or series of letters or papers - When any statement of which evidence is given forms part of a longer statement, or of a conversation or part of an is connected series of letters or papers, evidence shall be given of so much and no more of the statement, conversation, document, books or series of letters or

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papers as the Court considers necessary in that particular case to the full understanding of the nature and effect of the statement, and of the circumstances under which it was made.

Judgments of courts of justice, when relevant40. Previous judgments relevant to bar a second suit or trail - The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, is a relevant fact when the question is, whether such Court ought to take cognizance of such suit or to hold such trail.41. Relevancy of certain judgments in probate etc., jurisdiction –

A final judgment, order or decree of a Competent Court, in exercise of probate, matrimonial, admiralty or insolvency jurisdiction, which confers upon or to take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing not as against any specified person but absolutely, is relevant when the existence of any legal character, or the title of any such person to any such thing, is relevant.

Such judgment, order or decree is conclusive proof – That any legal character which it confer accrued at the time when such judgment, order or

decree come into operation; That any legal character to which it declares and such person to be entitled, accrued to that

person at the time when such judgment, ord3er or decree declares it to have accrued to that person;

That any legal character to which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had cased or should cease.

And that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property.

42. Relevancy and effect of judgment, order or decrees, other than those mentioned in Section 41. - Judgments, orders or decrees other than those mentioned in Section 41, are relevant if they relate to matters of a public nature relevant to the inquiry; nut such judgments, orders or decrees are not conclusive proof of that which they state.IllustrationsA sues B for trespass on his land; B alleges the existence of a public right of way over the land, which A denies. The existence of a decree in favour of the defendant, in a suit by A against C or a trespass on the same land, in which C alleged the existence of the same right of way, is relevant, but it is not conclusive proof that the right of ways exists.43. Judgment etc., other than those mentioned in Section 40 to 42 when relevant -Judgments, orders or decrees other then those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant, under some other provision of this Act.Illustrations(a) A and B separately sue C for a libel which reflects upon each of them C in each case says that the matter alleged to libelous is true and the circumstances are such that it is probable true in each case, or in neither. A obtains a decree against C for damages on the ground that C filed The Orient Tavern make out his justification. The fact is irrelevant as between B and C.a. A prosecutes B for adultery with C, A's wife. B denies that C is A's wife, but the court convicts B of adultery. Afterwards, C is prosecuted for bigamy in marrying B during A's lifetime. CC says that she never was A's wife. The judgment against B is irrelevant as against C.(c) A prosecuted B for stealing a cow, from him, B is convicted. A, afterwards, sues C for cow. Which B had sold to him before his conviction? As between A and C, the judgment against B is irrelevant.(d) A has obtained a decree for the possession of land against A,C,B's son murders A in consequence. The existence of the judgment is relevant, as showing motive for a crime.(e) A is charged with theft and with having been previously convicted of theft. The previous conviction is relevant as a fact in issue.(f) A is tried for the murder of B. The fact that B prosecuted A for libel and that A was convicted and sentenced is relevant under Section 8 as showing the motive for the fact in issue.44. Fraud or collusion in obtaining judgment, or incompetence of Court may be proved - Any party to a suit or other proceeding may show that any judgment, order or decree which is relevant under Section 40, 41 or 42 and which has been proved by the adverse party, was delivered by a Court not competent to deliver it, or was obtained by fraud or collusion.

Opinions of third persons when relevant45. Opinions of experts - When the Court has to form an opinion upon a point of foreign law, or of science, or art, or as to identity of hand writing or finger-impressions, the opinions upon that point of

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persons specially skilled in such foreign law, science or art, or in questions as to identity of handwriting or finger impressions, are relevant facts. Such person called experts.Illustrations(a) The question is, whether the death of A was caused by poison. The opinions of experts as to the symptoms produced by the poison by which A is supposed to have died, are relevant.(b) The question is whether A, at the time of doing a certain act, was by reason of unsoundness of mind, in capable of knowing the nature of the act, or that he was doing what was either wrong or contrary to law.The opinions of experts upon the question whether the symptoms exhibited by A commonly show unsoundness of mind, and whether such unsoundness of mind usually renders persons incapable of knowing the nature of the acts which they do, or knowing that what they do is either wrong or contrary to law, are relevant.(c) The question is, whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The opinion of experts on the question whether the two documents were written by the same person or by different persons are relevant.

46. Facts bearing upon opinions of experts - Facts, not otherwise relevant, are relevant if they support or are inconsistent with the opinion of experts when such opinions are relevant.Illustrations(a) The question is, whether A was poisoned by a certain poison. The fact that other persons, who were poisoned by that poison, exhibited certain symptoms which experts affirm or deny being the symptoms of that poison, is relevant.(b) The question is, whether an obstruction to a harbour is caused by a certain seawall. The fact that other harbours similarly situated in other respects, but where there were no such sea-walls, began to be obstructed at about the same time is relevant.

47. Opinions as to handwriting, when relevant - When the Court has to form an opinion as to the person by whom document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact.Explanation - A person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received document purporting to be written by that person in answer to documents written by himself to under his authority and addressed to that person, or when in the ordinary course of business document purporting to be written by that person have been habitually submitted to him.IllustrationsThe question is whether a given letter is in the handwriting of A, a merchant in London. B is a merchant in Calcutta, who has written letters addressed to A and received letters purporting to be written by him. G is B's clerk, whose duty it was to examine and file B's correspondence. D is B's broker, to whom B habitually submitted thee letters purporting to be written by A for the purpose advising with him thereon. The opinions of B,C and D on the question, whether the letter is in the handwriting of A, are relevant though neither B, C or D ever saw A, write.

48. Opinion as to existence of right or custom when relevant - When the Court has to form an opinion as to existence of any general custom or right, the opinions as to the existence of such custom or rights, of persons who would be likely to know of its existence if it existed, are relevant.Explanation - The expression "general custom or right" includes customs or right commonThe Orient Tavern any considerable class of persons.IllustrationsThe right of the villagers of a particular village to use the water of a particular well is a general right within the meaning of this section.

49. Opinion as to usage's, tenants, etc., when relevant - When the Court has to form an opinion as to - the usage's and tenants of any body of men or family, the constitution and government of any religious or charitable foundation, or the meaning of words or terms used in particular districts or by particular classes of people, the opinions of persons having special means of knowledge thereon, are relevant facts.50. Opinion on relationship, when relevant - When the Court has to form an opinion as to the relationship of one person to another, the opinion expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject is a relevant fact. Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act (IV of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (XIV of 1860).

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Illustrations(a) The question is whether A an B was married.The Fact that they were usually received and treated by their friends as husband and wife is relevant.(b) The question is whether A was the legitimate son of B.The fact that A was always treated as such by members of the family is relevant.

51. Grounds of opinion when relevant - Whenever the opinion of any living person is relevant, the grounds on which such opinion is based are also relevant.IllustrationAn expert may give an account of experiments performed by him for the purpose of forming his opinion.

Character when relevant52. In civil cases character to prove conduct imputed irrelevant - In civil cases, the fact that the character of any person concerned is such as to render probable or improbably any conduct imputed to him, is irrelevant except in so far as such character appears from facts otherwise relevant.53. In criminal cases, previous good character relevant - In criminal proceedings the fact that the person accused is of good character, is relevant.54. Previous bad character not relevant except in reply - In criminal proceedings the fact that the accused person had a bad character is irrelevant, unless evidence has been given that he has a character in which case it becomes relevant.Explanation 1. - This section does not apply to cases in which the bad character of any person is itself a fact in issue.Explanation 2. - A previous conviction is relevant as evidence of bad character.55. Character as affecting damages - In civil cases, the fact that the character of any person is such as to affect the amount of damages which he ought to receive is relevant.Explanation - In Section 52, 53, 54 and 55, the word "character" includes both reputation and disposition; but except as provided in Section 54, evidence may be given only a general reputation and general disposition and not of particular acts by which reputation or disposition was shown.

ON PROOF : - Facts which need not be proved 56. Fact judicially noticeable need not be proved - No fact of which the Court will take judicial notice need be proved.57. Facts of which Court must take judicial notice - The Court shall take judicial notice of the following facts;1. All laws in force in the territory of India;2. All public Acts passed or hereafter to be passed by Parliament of United Kingdom, and all local and personal Acts directed by Parliament of the United Kingdom to be judicially noticed;3. Articles of War for the Indian Army, Navy of Air force;4. The course of proceeding of parliament of the United Kingdom, of the Constituent Assembly of India, of Parliament and of the Legislature established under any law for the time being in force in Province or in the States;5. The accession and the sign manual of the Sovereign for the time being of the United Kingdom of Great Britain and Ireland;6. All seals of which English Courts take judicial notice; the seals of all the Courts in India and of all Courts out of India established by the authority of the Central Government or the Crown representative; the seals off Court of Admiralty and Maritime jurisdiction and of Notaries Public and all seals which any person is authorized to use by the Constitution or an Act of Parliament of the United Kingdom or an Act or Regulation having the force of law in India;7. The accession to office, names, titles, functions and signatures of the persons filling for the time being any public office in any state, if the fact of their appointment to such office is notified in any official Gazette;8. The existence, title and national flag of every State or Sovereign recognized by theGovernment of India;9. The divisions of time, the geographical divisions of the world, and public festivals, facts and holidays notified in the Official Gazette;10. The territories under the dominion of the Government of India;11. The commencement, continuance and termination of hostilities between the Government of India and any other State or body of persons;12. The names of the members and officers of the Court, and of their deputies and subordinate officers and assistants and also of all officers acting in execution of its process, and of all advocates, attorneys, proctors, vakils, pleaders and other persons authorized by law to appear or act before it;

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13. The rule of the road on lad or at sea. In all these cases, and also on all matters of public history, literature, science or art, the Court may report for its aid to appropriate books or documents of reference. If the Court is called upon by any person to take judicial notice of any fact it may refuse to do so unless and until such person produces any such book or document as it may consider necessary to enable it to do so.58. Facts admitted need not be proved - No fact need be proved in any proceeding, which the parties thereto or their agents agree to admit at the hearing, or which, before the hearing, they agree to admit by any writing under their hands or which by any rule of pleading in force at the time they are deemed to have admitted by their pleadings; Provided that the Court may, in its discretion, require the facts admitted to be proved otherwise than by such admission.

Oral Evidence59. Proof of facts by oral evidence - All facts, except the contents of documents, may be proved by oral evidence.60. Oral evidence must be direct - Oral evidence must, in all cases, whatever, be direct; that is to say; If it refers to a fact which could be seen, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; If it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner; If it refers to an opinions or to the grounds in which that opinion is held, it must be the evidence of the person who holds that opinion on those grounds - Provided that the opinion of experts expressed in any treatise commonly offered for sale, and the grounds on which such opinions are held, may be proved by the production of such treatise if the author is dead or cannot be found or has become incapable of giving evidence or cannot be called as a witness without an amount of delay or expense which the Court regards as unreasonable. Provided also that, if oral evidence refers to the existence or condition of any material thing other than a document, the Court may, if it thinks fit, require the production of such material thing for its inspection.

Documentary Evidence61. Proof of contents of documents - The contents of documents may be proved either by primary or by secondary evidence.62. Primary evidence - Primary evidence means the document itself produced for the inspection of the Court.Explanation 1. - Where a document is executed in several parts, each part is primary evidence of the document. Where a document is executed in counterparts, each counterpart being executed by one or some of the parties only, each counterpart is primary evidence as against the parties executing it.Explanation 2. - Where a number of documents are all made by one uniform process, as in the case of printing, lithography or photography, each is primary evidence of the contents of the rest; but, where they are all copies of a common original, they are not primary evidence of the contents of the original.IllustrationA person is shown to have been in possession of a number of placards, all printed at one time from one original. Any one of the placards is primary evidence of the contents of any other, but no one of them is primary evidence of the contents of the original.

63. Secondary Evidence - Secondary evidence means and includes.1. Certified copies given under the provisions hereinafter contained;2. Copies made from the original by mechanical processes which in themselves insure the accuracy of the copy and copies compared with such copies;3. Copies made from or compared with the original;4. Counterparts of documents as against the parties who did not execute them;5. Oral accounts of the contents of a document given by some person who has himself seen it. Illustrations(a) A photograph of an original is secondary evidence of its contents, though the two have not been compared, if it is proved that the thing photographed was the original.(b) A copy compared with a copy of a letter made by copying machine is secondary evidence of the contents of the letter, if it is shown that the copy made by the copying machine was made from the original.(c) A copy transcribed from a copy, but afterwards compared with the original, is secondary evidence, but the copy not so compared is not secondary evidence of the original, although the copy from which it was transcribed was compared with the original.(d) Neither an oral account of a copy compared with the original, nor an oral account of a photo graph or machine copy of the original, is secondary evidence of the original.

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64. Proof of documents by primary evidence - Documents must be proved by primary evidence except in the cases hereinafter mentioned.

65. Cases in which secondary evidence relating to documents may be given – Secondary evidence may be given of the existence, condition or contents of a document in the following cases:(a) When the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, or of any person out of reach of, or not subject to, the process of the Court, or of any person legally bound to produce it, and when, after the notice mentioned in Section 66, such person does not produce it;(b) When the existence, condition or contents of the original have been proved to be admitted in writing by the person against whom it is proved or by his representative in interest;(c) When the original has been destroyed or lost, or when the party offering evidence of its contents cannot, for any other reason not arising from his own default or neglect, produce it in reasonable time;(d) When the original is of such a nature as not to be easily movable;(e) When the original is a public document within the meaning of Section 74;(f) When the original is a document of which a certified copy is permitted by this Act, or by any other law in force in India to be given in evidence;(g) When the originals consist of numerous accounts or other documents which cannot conveniently be examined in Court and the fact to be proved is the general result of the whole collections. In cases (a), (c) and (d), any secondary evidence of the contents of the documents is admissible. In case (b), the written admission is admissible.In case (e) or (f), a certified copy of the document, but no other kind of secondary evidence, is admissible. In case (g), evidence may be given as to the general result of the documents by any person who has examined them, and who is skilled in the examination of such documents.

67. Proof of signature and handwriting of person alleged to have signed or written document produced - If a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his hand writing.68. Proof of execution of document required by law to be attested - If a document is required by law to be attested it shall not be sued as evidence until one attesting witness at least has been called for the purpose of proving its execution if there be an attesting witness alive, and subject to he process of the Court and capable of giving evidence:Provided that it shall not be necessary to call an attesting witness in proof of the execution of any document, not being a will, which has been registered in accordance with the provisions of the Indian Registration Act,1908 (16 of 1908), unless its execution by the person by whom it purports to have been executed is specially denied.69. Proof where no attesting witness found - If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the hand writing of that person.70. Admission of execution by party to attested document - The admission of a party to an attested document of its execution by himself shall be sufficient proof of its execution as against him, though it be a document required by law to be attested.71. Proof when attesting witness denies the execution - If the attesting witness denies or does not recollect the execution of the document its execution may be proved by other evidence.72. Proof of document not required by law to be attested - An attested document not required by law to be attested may b proved as if it was unattested.73. Comparison of signature, writing or seal with others admitted or proved - In order to ascertain whether a signature, writing or seal is that of the person by whom it purports to have been written or made, any signature, writing or seal admitted or proved to the satisfaction of the Court to have been written or made by that person may be compared with the one which s to be proved, although that signature, writing, or seal has not been produced or proved for any other purpose. The Court may direct any person present in Court to write any words or figures for the purpose of enabling the Court to compare the words or figures so written with any words or figures alleged to have been written by such person. This section applies also with any necessary modifications, to finger-impressions.

Public Documents74. Public documents - The following documents are Public documents-1. Documents forming the acts, or records of the acts a. Of the sovereign authority,i. Of Official bodies and the Tribunals, and(iii) Of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country.

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1. Public records kept in any State of private documents.Private documents - All other documents are private.76. Certified copies of Public Documents - Every public officer having the custody of a public document, which any person has a right to inspect, shall give that person on demand a copy of it on payment of the legal fees therefor together with a certificate written at the foot of such copy that it is a true copy of such document or part thereof, as the case may be, and such certificate shall be dated and subscribed by such officers with his name and his official title, and shall be sealed whenever such officer is authorized by law to make use of a seal, and such copies so certified shall be called certified copies.Explanation - Any officer who, by the ordinary course of official duty, is authorized to deliver such copies, shall be deemed to have the custody of such documents or parts of the public documents of which they purport to be copies.77. Proof of documents by production of certified copies - Such certified copies may be produced in proof of the contents of the public documents or parts of the public documents of which they purport to be copies

78. Proof of other official documents - The following public documents may be proved as follows -1. Acts, orders or notifications of the General Government in any of its departments, or of the Crown Representative or of any State Government or any department of any State Government. By the records of the departments, certified by the heads of those departments respectively, or by any document purporting to be printed by order of any such Government or as the case may be, of the Crown Representative;(2) The proceedings of the Legislatures - by the journals of those bodies respectively, or by published Acts or abstracts, or by copies purporting The Orient Tavern be printed by order of the Government concerned;(3) Proclamations, orders or regulations issued by Her Majesty or by the privy Council, or by any department of Her Majesty's Government, By copies or extracts contained in the London Gazette, or purporting to be printed by the Queen's Printer;(4) The Acts of the Executive or the proceedings of the Legislature of a foreign country - By journals published by their authority, or commonly received in that country as such, or by a copy certified under the seal of the country or sovereign, or by a recognition thereof in some Central Act;(5) The proceedings of a municipal body in a State, - By a copy of such proceedings certified by the legal keeper thereof of by a printed book purporting to be published by the authority of such body,(6) Public documents of any other class in a foreign country, - by the original, or by a copy certified by the legal keeper thereof with a certificate under the seal of a notary public, or of an Indian consul or diplomatic agent, that the copy is duly certified by the officer having the legal custody of the original and upon proof of the character of the document according to the law of the foreign country.

Presumptions as to Document79. Presumption as to genuineness of certified copies - The Court shall presume to be genuine every document purporting to be a certificate, certified copy, or other document, which is by law declared to be admissible as evidence of any particular fact, and which purports to be duly certified by any officer of the Central Government or of a State Government, or by any officer in the State of Jammu and Kashmir who is duly authorized there to by the Central Government: Provided that such document is substantially in the form and purports to be executed in the manner directed by law in that behalf. The Court shall also presume that any officer by whom any such document purports to be signed or certified, held, when he signed, the official character which he claims in such paper.80. Presumption as to documents produced as records of evidence - Whenever any document is produced before any Court, purporting to be a record or memorandum of the evidence, or of any part of the evidence, given by a witness in a judicial proceeding or before any officer authorized by law to take such evidence or to be statement or confession by any prisoner or accused person taken in accordance with law, and purporting to be signed by any Judge or Magistrate, or by any such officer as aforesaid, the Court shall presume –81. Presumption as to Gazettes, newspapers, private Acts of Parliament and other documents - The Court shall presume the genuineness of every document purporting to be the London Gazette, or any official Gazette or the Government Gazette of any colony, dependency or possession of the British Crown, or to be a newspaper or journal, or to be a copy of private Act of Parliament of the United Kingdom printed by the Queen's Printer and of every document purporting to be a document directed by any law to be kept by any person, if such document is kept substantially in the form required by law and is produced from proper custody.82. Presumption as to document admissible in England without proof of seal or signature -When any document is produced before any Court, purporting to be a document which, by the law in force for the time being in England or Ireland, would be admissible in proof of any particular in any Court of Justice in England or Ireland, without proof of the seal or stamp or signature authenticating it, or of

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the judicial or official character claimed by the person by whom it purports to be signed, the Court shall presume that such seal, stamp or signature is genuine and that the person signing it held at the time when he signed it, the judicial or official character which he claims; and the document shall be admissible for the same purpose for which it would be admissible in England or Ireland.83. Presumption as to Maps or Plans made by authority of Government - The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made, and are accurate, but maps or plans made for the purposes of any cause must be proved to be accurate.

84. Presumption as to collections of laws and reports of decisions - The Court shall presume the genuineness of every book purporting to be printed and published under the authority of the Government of any country, and to contain any of the laws of that country; and of every book purporting to contain reports of decisions of the Courts of such country.85. Presumption as to powers of attorney - The Court shall presume that every document purporting to be a Power of Attorney, and to have been executed before, authenticated by, notary public, or any Court, judge, Magistrate, Indian Consul, or Vice Consul, or representative of theCentral Government, was so executed and authenticated.86. Presumption as to certified copies of foreign judicial records - The Court may presume that any document purporting to be certified copy of any judicial record of any country not forming part of India or of Her Majesty's dominions is genuine and accurate, if the document purports to be certified in any manner which is certified by any representative of the Central Government in or for such country to be the manner commonly in use in that country for the certification of copies of judicial recordsAn officer who, with respect to any territory or place not forming part of India or Her Majesty's dominions, is a Political Agent, therefor, as defined in Section 3, Clause (43) of the General Clauses Act, 1897 (10 of 1897) shall, for the purposes of this section, be deemed to be a representative of the Central Government in and for the country comprising that territory or place.87. Presumption as to Books, Maps and Charts - The Court may presume that any book to which it may refer for information on matters of public or general interest, and that any published map or chart, the statements of which are relevant facts, and which is produced for its inspection, was written and published by the person, and at the time and place, by whom or at which it purports to have been written or published.88. Presumption as to Telegraphic Messages - The Court may presume that a message, forwarded from a telegraph office to the person to whom such message purports to be addressed, corresponds with a message delivered for transmission at the office from which the massage purports to be sent, but the Court shall not make any presumption as to the person by whom such massage was delivered for transmission.89. Presumption as to due execution etc., of documents not produced - The Court shall presume that every document, called for and not produced after notice to produce, was attested, stamped and executed in the manner required by law.

90. Presumption as to documents thirty years old - Where any document, purporting or proved to be thirty years old is produced from any custody which the Court in the particular case considers proper, the Court may presume that the signature and every other part of such document, which purports to be in the hand writing of any particular person, is in that person's hand writing, and in the case of document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested.Explanation - Documents are said to be in proper custody if they are in the place in which and under the care of the person with whom, they would naturally be; but no custody is improper if it is proved to have had a legitimate origin or if the circumstances of the particular case are such as to render such an origin probable.This explanation applies also to Section 81.Illustrations(a) A has been in possession of landed property for a long time. He produces from his custody deeds relating to the land showing his titles to it. The custody is proper.(b) A produces deeds relating to landed property of which he is the mortgagee. The mortgagor is in possession.The custody id proper.(c) A, connection of B, produces deeds relating to lands in B's possession, which were deposited with him by B for safe custody. The custody is proper.

90-A (1) where any registered document or a duly certified copy of a document which is the part of the record of a Court of Justice, is produced from any custody which the Court in the particular case

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considers proper, the Court may presume that the original was executed by the person by whom it purports to have been executed.(2) The presumption shall not be made in respect of any document, which is the basis of a suit or of a defense or is relied upon in the plaint or written statement. The explanation to sub-section (1) of Section 90 will also apply to this Section.

The Exclusion Of Oral By Documentary Evidence91. Evidence of terms of contracts, grant and other dispositions of property reduced to form of document - When the terms of a contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and 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 in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions herein before contained.Exception 1 - When a public officer is required by law to be appointed in writing, and when it is shown that any particular person had acted as such officer, the writing by which he is appointed need not be proved.Exception 2 - Wills admitted to probate in India may be proved by the probate.Explanation 1 - This section applies equally to cases in which the contracts, grants or dispositions of property referred to are contained in one document, and to cases in which they are contained in more documents than one.Explanation 2 - Where there are more originals than one, one original only need be proved.Explanation 3 - The statement, in any document whatever of a fact other than the facts referred to in this section shall not preclude the admission of oral evidence as to the same fact.Illustrationsa. If a contract be contained in several letter, all the letters in which it is contained must be proved.b. If a contract is contained I a bill of exchange, the bill of exchange must be proved.c. If a bill of exchange is drawn in a set of three, one only need be proved.d. A contracts, in writing with B, for the delivery of indigo upon certain terms. The contract mentioned the fact that B had paid A, the price of other in contracted for verbally on another occasion. Oral evidence is offered that no payment was made for the other indigo. The evidence is admissible. e. A gives B a receipt for money paid by B. Oral evidence is offered of the payment. The evidence is admissible.

92. Exclusion of evidence or oral agreement - When the terms of any such contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying adding to, or subtracting from, its term:Proviso (1) - Any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto, such as fraud, intimidation, illegality, want for due execution, want of capacity in any contracting party, want or failure of consideration, or a mistake in fact or law.Proviso (2) - The existence of any separate oral agreements to matter on which a document is silent, and which is not inconsistent with its terms, may be proved. In considering whether; r not his proviso applies, the Court shall have regard to the degree of formality of the document.Proviso (3) - The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved. Proviso (4) - The existence of any separate oral agreement, constituting, a condition precedent to the attaching of any obligation under any such contract, grant or disposition of property, may be proved, except in cases in which such contract, grant or disposition of property, is by law required to be in writing, or has been registered according to the law in force for the time being as to the registration of documents.Proviso (5) - Any usage or custom by which incidents not expressly mentioned in any contract are usually annexed to contracts of that description may be proved. Provided that the annexing of such incident would not be repugnant to, or inconsistent with, the express terms of the contract.Proviso (6) - Any fact may be proved which shows in what manner the language of a document is related to existing facts.

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Illustrationsa. A Policy of insurance is affected on goods "In ships from Calcutta to London". The goods are shipped in a particular ship which is lost. The fact that the particular ship was orally accepted from the policy cannot be proved.(b) A agrees absolutely in writing to pay B Rs.1, 000/- on the first March,1873. The fact that, at the same time an oral agreement was made that the money should not be paid till the 31st March, cannot be proved.(c) An estate called "The Rampur Tea Estate" is sold by a deed which contains a map of the property sold. The fact that land not included in the map had always been regarded as part of the estate and was meant to pass by the deed cannot be proved.(d) A enters into a written contract with B to work certain mines, the property of B, upon certain terms. A was induced to do so by a misrepresentation of B's as to their value. This fact may be proved.(e) A institutes a suit against B for the specific performance of a contract, and also prays that the contract may be reformed as to one of its provisions, as that provision was inserted in it by mistake. A may prove that such a mistake was made as would by law entitle him to have the contract reformed.(f) A orders, goods of B by a letter in which nothing is said as to the time of payment and accepts the goods on delivery. B sues A for the price. A may show that the goods were supplied on credit for a term still unexplored.(g) A sells B a horse and verbally warrants him sound. A gives B a paper in these words "Bought of A horse for Rs.500". B may prove the verbal warranty.(h) A hires lodgings of B, and gives B a card on which is written - "Rooms, Rs.200 a month". A may prove a verbal agreement that these terms were to include partial board. A hires lodging of B for a year, and a regularly stamped agreement, drawn up by an attorney is made between them. It is silent on the subject of board. A may not prove that the board was included in the terms verbally.(i) A applies to B for a debt due to A by sending a receipt for the money. B keeps the receipt and does not send the money. In a suit for the amount A may prove this.(j) A and B make a contract in writing to take effect upon the happening of a certain contingency. The writing s left with B, who sues A upon it. A may show the circumstances under which it was delivered.

93. Exclusion of evidence to explain or amend ambiguous document - When language used in a document is, on its face, ambiguous of defective, evidence may not be given of facts which would show its meaning or supply its defect.Illustrations(a) A agrees, in writing, to sell a horse to B for Rs. 1,000/- or Rs. 1,500/-. Evidence cannot be given to show which price was to be given.(b) A deed contains blanks. Evidence cannot be given of facts which would not show how they were meant to be filled.94. Exclusion of evidence against application of document of existing facts - When language used in a document is plain in itself, and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts.IllustrationsA sells to B, by deed "my estate at Rampur containing 100 bighas". A has an estate at Rampur containing 100 bighas. Evidence may not be given of the fact that the estate meant to be sold was one situated at a different place and of a different size.95. Evidence as to document unmeaning in reference to existing facts. - When language used in a document is plain in it, but is unmeaning in reference to existing facts, evidence may be given to show that it was used in a peculiar sense. A sells to B, by deed "my house in Calcutta." A had not house in Calcutta, but it appears that he had a house at Howrah, of which B had been in possession since the execution of the deed. These facts may be proved to show that the deed related to the house at Howrah.96. Evidence as to application of languages which can apply to one only of several persons - When the facts are such that the language used might have been meant to apply to any one, and could not have been meant to apply to more than one of several persons or things evidence may be given of facts which show of those persons or things it was intended to apply to.Illustrations(a) A agrees to sell to B, for Rs.1,000 "my white horse". A has two white horse. Evidence may be given of facts which show which of them was meant.(b) A agrees to accompany B to Hyderabad. Evidence may be given of facts showing whether Hyderabad in the Deccan or Hyderabad in the Deccan or Hyderabad in Sindh was meant.97. Evidence as to application of language to one of two sets of facts to neither of which the whole correctly applies - When the language used applies partly to one set of existing facts and, partly to another set of existing facts, but the whole of it does not apply correctly to either, evidence may be given to show to which of the two it was meant to apply.

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IllustrationA agrees to sell to B "my land to X in the occupation of Y." A has land at X, but not in occupation of Y, and he has land in the occupation of Y, but it is not at X. Evidence may be given of facts showing which he meant to sell.98. Evidence as to meaning of illegible character, etc. - Evidence may be given to show the meaning of illegible or not commonly intelligible character, of foreign, obsolete, technical, local or provincial expressions, of abbreviations and of words used in a peculiar sense.IllustrationA, a sculptor, agrees to sell to B, "all my moods" A has both models and modeling tools.Evidence may be given to show which he meant to sell.99. Who may give evidence of agreement varying terms of document - Person who are not parties to document, or their representatives in interest may give evidence of any fact tending to show a contemporaneous agreement varying the terms of the document.Illustration A and B make a contract in writing that B shall sell certain cotton, to be paid for on delivery. At the same time they made an oral agreement that "three months" credit shall be given to A. This could not be shown as between A and B, but it might be shown by C if it affected by his interests.100. Saving of provisions of India Succession Act relating to Wills. - Nothing in this Chapter contained shall be taken to affect any of the provisions of the Succession Act (X of 1965) as to the construction to Wills.

PRODUCTION AND EFFECT OF EVIDENCE101. Burden of Proof - Whoever desires any Court to give judgment as to any legal right or liability dependent on the existence to facts, which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.Illustration(a) A desires a Court to give judgment that B shall be punished for a crime which A says B has committed. A must prove that B has committed the crime.(b) A desires a Court to give judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and which B denies to be true. A must prove the existence of those facts.

102. On whom burden of proof lies. - The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.Illustration(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore, the burden of proof is on A.(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B.

103. Burden of proof as to particular fact. - The burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.IllustrationA prosecuted B for theft and wishes the Court to believe that B admitted the theft to C.A must prove the admission. B wishes the Court to believe that, at the time in question, he was elsewhere. He must prove it.104. Burden of proving fact to be proved to make evidence admissible - The burden of proving any fact necessary to be proved in order to enable any person to give evidence of any other fact is on the person who wishes to give such evidence.Illustrationsa. A wishes to prove a dying declaration by B.A must prove B's death.b. B wishes to prove, by secondary evidence, the contents of a lost document. A must prove that the document has been lost.

105. Burden of proving that case of accused comes within exceptions - When a person is accused of any offence, the burden f proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860) or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.Illustrations(a) A, accused of murder, alleges, that by reason of unsoundness of mind, he did not know the nature of the act. The burden of proof is on A.

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(b) A, accused of murder, alleges, that by grave and sudden provocation, he was deprived of the power of self-control. The burden of proof is on A.(c) Section 325 of the Indian Penal Code (XLV of 1860) provides that whoever, except in the case provided for by Section 335, voluntarily causes grievous hurt, shall be subject to certain punishments. A is charged with voluntarily causing grievous hurt under Section 352. The burden of proving the circumstances bringing the case under Section 335 lies on A.106. Burden of proving fact especially within knowledge - When any fact is specially within the knowledge of any person, the burden of proving that fact is upon him.Illustrations(a) When a person does an act with some intention other than that which the character and circumstances of the act suggest, the burden of proving that intention is upon him.(b) A is charged with travelling on a railway without a ticket. The burden of proving that he had ticket is on him.

107. Burden of proving death of person known to have been alive within thirty years. -When the question is whether a man is alive or dead, and it is shown that he was alive within thirty years, the burden of proving that he is dead is on the person who affirms it.108. Burden of proving that person is alive who has not been heard of for seven years. Provided that when the question is whether a man is alive or dead, and it is proved that he has not been heard of for seven years by those who would naturally have heard of him if he had been alive, the burden of proving that he is alive is shifted to the person who affirms it.109. Burden of proof as to relationship in the case of partners, landlord and tenant, principal and agent - When the question is whether persons are partners, landlord and tenant, or principal and agent, and it has been shown that they have been acting as such, the burden of proving that they do not stand, or have ceased to stand to each other in those relationships respectively, is on the person who affirms it.110. Burden of proof as to ownership - When the question is, whether any person is owner of anything of which he is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.

111. Proof of good faith in transactions where one party is in relation of active confidence. -Where there is a question as to the good faith of a transaction between parties, one of whom stands to the other in a position of active confidence, the burden of proving the good faith of the transaction is on the party who is in a position of active confidence.Illustrations(a) The good faith of a sale by a client to an attorney is in question in a suit brought by the client. The burden of proving the good faith of transaction is on the attorney.(b) The good faith of a sale by a son just come of age to a father is in question in a suit brought by the son. The burden of proving the good faith of the trans

111A. Presumption as to certain offences. – (1) Where a person is accused of having committed any offence specified in sub-section (2), in(a) Any area declared to be disturbed area under any enactment, for the time being in force, making provision for the suppression of disorder and restoration and maintenance of public order; or(b) Any area in which there has been, over a period of more than one month, extensive disturbance of the public peace, and it is shown that such person had been at a place in such area at a time when firearms or explosives were used at or from that place to attack or resist the members of any armed forces or the forces charged with the maintenance of public order acting in the discharge of their duties, it shall be presumed, unless the contrary is shown, that such person had committed such offence.(2) The offences referred to in sub-section (1) are the following, namely -(a) An offence under section 121, section 121-A, section 122 or Section 123 of the Indian Penal Code (45 of 1860);(b) Criminal conspiracy or attempt to commit, or abatement of, an offence under section 122 or section 123 of the Indian Penal Code (45 of 1860)

112. Birth during marriage, conclusive proof of legitimacy - The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.113. Proof of cession of territory - A notification in the Official Gazette that any portion of

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British territory has before the commencement of Part III of the Government of India Act,1935, (26 Geo. 5 Ch. 2) been caddied to any Native State, Prince or Ruler, shall be conclusive proof that a valid cession of such territory took place at the date mentioned in such notification.

113A. Presumption as to abatement of suicide by a married women - When the question is whether the commission of suicide by a women had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband has subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.Explanation - For the purposes of this section, "cruelty" shall have the same meaning as in section 498-A of the Indian Penal Code (45 of 1860).113B. Presumption as to dowry death - When the question is whether a person has committed the dowry death of a women and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry; the court shall presume that such person had caused the dowry death.Explanation - For the purposes of this section, "dowry death" shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).

114. Court may presume existence of certain facts - 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.IllustrationThe Court may presume -(a) That a man who is in possession of stolen goods after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;(b) That an accomplice is unworthy of credit, unless he is corroborated in material particular;(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for good consideration;(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;(e) That judicial and official acts have been regularly performed;(f) That the common course of business had been followed in particular cases;(g) That evidence which could be and is not produced would, if produced be unfavorable to the person who withholds it;(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavorable to him;(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged. But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it -As to illustration (a) - A shopkeeper has in his till marked rupee soon after it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;As to illustration (b) - A, a person of the highest character, is tried for causing a man's death by an act of negligence in arranging certain machinery; B, a person of equally good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;As to illustration (bb) - A crime is committed by several persons, A,B and C, three of the criminals, are captured on the spot and kept apart from each other. Each gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;As to illustration (c) - A, the drawer of a bill of exchange, was a man of business. B, the acceptor, was a young and ignorant person, completely under A's influence; As to illustration (d) - It is proved a river ran in a certain course five years ago, but it is known that there have been floods since that time which might change its course;As to illustration (e) - A judicial act, the regularity of which is in question, was performed under exceptional circumstances;As to illustration (f) - The question is, whether a letter was received, it is shown to have been posted, but the usual course of the post was interrupted by disturbances;As to illustration (g) - A man refuses to produce a document which would bear on a contract of small importance on which he is sued, but which might also injure the feelings and reputation of his family;As to illustration (h) - A man refuses to answer question which he is not compelled by law to answer but the answer, to it might cause loss to him in matters unconnected with the matter in relation to which it is asked;

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As to illustration (i) - A bond is in possession of the obliger, but the circumstances of the case are such that he may have stolen it.

114-A Presumption as to absence of consent in certain prosecutions for rape - In a prosecution for rape under clause (a) or clause (b) or clause (c) or clause (d) or clause (e) or clause (g) of sub-section (2) of section 376 of the Indian Penal Code (45 of 1860), where sexual inter course by the accused is proved and the question is whether it was without the consent of the woman alleged to have been raped and she states in her evidence before the Court that she did not consent, the Court shall presume that she did not consent.

115. Estoppel - When one person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, neither he nor his representative shall be allowed, in any suit or proceeding between himself and such person or his representative, to deny the truth of that thing.IllustrationA intentionally and falsely leads B to believe that certain land belongs to A, and thereby induces B to buy and pay for it. The land afterwards, becomes the property of A, and A seeks to set aside the sale on the ground that, at the time of the sale, he had no title. He must not be allowed to prove his want to title.

116. Estoppel of tenant and of license of person in possession - No tenant of immovable property of person claiming through such tenant shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and not person who came upon any immovable property by the license of the person in possession thereof, shall be permitted to deny that such person has a title to such possession at the time when such license was given.

117. Estoppel of acceptor of bill of exchange, bailee or licensee - No acceptor of a bill of exchange shall be permitted to deny that the drawer had authority of draw such bill or to endorse it; nor shall any bailee or licensee be permitted to deny that his bailor or licensor had, at the time when the bailment or license commenced, authority to make such bailment or grant such license.Explanation (1) - The acceptor of a bill of exchange may deny that the bill was really drawn by the person by whom it purports to have been drawn.Explanation (2) - If a bailee delivers the goods bailed to a person other than the bailor, he mayprove that such person had a right to them as against the bailor.

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