Civil Law II

Punjab Superior Judicial Service
(Main Written Examination) 2012
Civil Law-II
Time Allowed:  3  Hours                                                                                                                                                                                                                                            Max.  Marks- 200
Note:      (i)  Answer all questions.
(ii)  All questions carry equal marks.  However, the marks carried by each part in a question have been indicated against that part.

Q.1(a)  The expanding horizon of Article 21 i.e.  Right to life and Perfonal liberty is interpreted by our Supreme Court as per need of the society.  Explain with the help of relevant case laws.     10 Marks
1(b)  Write short notes on the following:-
(i)    Doctrine of Severability
(ii)    Doctrine of Waiver
(iii)    Doctrine of Pleasure
(iv)    Doctrine of Eminent Domain                         20 Marks
1(c)  "So sadly and oppressively deep-rooted is caste in our country that it has cut across even the barriers of religion.  The caste system has penetrated other religious and dissentient Hindu sects to whom the practice of caste should be anathema and we find that practitioner of other religious faiths and Hindus dissentients are sometimes as rigid adherents to the system of caste as the conservative Hindus".
In light of the above observation, critically evaluate the constitutional provision related to the recent demand of reservation for the Muslim Community from the quota of reservation for OBC. 10 Marks
Q.2(a)  "Subject to the other provisions of part XIII of the constitution, trade, commerce and intercourse through the territory of India shall be free".  Critically elaborate the freedom of trade, commerce and intercourse along with limitation/restrictions put on such freedom and also point out if taxing powers of the state is hit by the provisions of Article 301.                         20 Marks    
2(b)  Adesh and Akhilesh were twin brothers.  Adesh was taking care of his father's Real Estate business and Akhilesh was a software Engineer.  Adesh married Anusha, who was a Civil Engineer, and Akhilesh married Deepika, who was also a software Engineer.  Their marriage was solemnized on the same day according to the Hindu rites and ceremonies.
After marriage, Anusha was blessed with a baby boy and Deepika also with & babu Garg.  The entire family rejoiced and was very happy.  Both Akhilesh and Deepika got a good job in the U.S.A. and were preparing themselves to leave for America.  Deepika was making all necessary purchases.  Once when she went out for shopping on her scooty, she met with an accident and died on the spot.  The whole family was grief-stricken.  Akhilesh was plunged in deep depression.  He was absolutely not able to manage the newborn child Aditya.  The child was comfortable only with Anusha.
Every one consoled Akhilesh and advised him to proceed with his job in the U.S.A.  His parents strongly felt that only if he went to America, he could forget his sorrow and his bereavement caused by the sad and unfortunate incident.  They felt, eventually, he should marry again and start a new life. In the meantime the child got attached to Anusha and Anusha also felt a deeper attachment for the child.  Akhilesh also felt that in a foreign country, in a totally new circumstance, he won't be able to manage with the child, if taken along.  Adesh and Anusha were ready to adopt the child.  Elders also felt that it will be for the good of Akhilesh, so that he could start his life anew.  Akhilesh also condescended to the proposal.  On the day of Akhilesh's departure to America, in front of all the relatives, the child was handed over to Adesh and Anusha, and they adopted the child.
Akhilesh lived in America for three years.  Those three years period of time radically changed his life.  He came back to normal life and agreed for the second marriage, arranged by his parents.  He came back to India for his marriage.  After marriage he and his new wife Vinitha stayed in India for three months.  During his stay in India he spent a lot of time with his son, Aditya.  Both Vinitha and Akhilesh decided that they will take Aditya with them to U.S.A.  But Adesh and Anusha did not agree to it.  They said, they had taken Aditya in adoption, and now he was their child.
Akhilesh argued that it was only in thw welfare of the child that they wanted to take him along.  In the U.S.A. he could possibly give him the best comforts and the high standards of living.  He also said there were no ceremonies performed according to their caste's custom.  There was no evidence in writing whatsoever.  So the adoption could not be valid.
Under the above circumstances:
1.    Discuss, whether the adoption of Aditya by Adesh and Anusha is valid, under the Hindu Adoption and Maintenance Act, 1956?
2.    What are the essentials of a valid adoption under the Hindu Adoption and Maintenance Act, 1956?                                         20 Marks
Q.3(a)  What is the impact of Anand Marriage (Amendment) Act, 2012 on Hindu Marriage Act, 1955.
Is it an Act to supplement Hindu Marriage Act, 1955?  Discuss.                 10 Marks
3(b)  What are the legal provisions regarding restitution of Conjugal rights and judicial separation under Hindu Marriage Act?  Discuss with the help of recent case laws?                 10 Marks
3(c)  A Hindu female is survived by her adopted son, natural born son and an illegitimate son.  Upon whom her property will devolve and in what ratio?  Cite relevant sections and case laws? 10 Marks
3(d)  A and his sons, B and C constitute a Mitakshara Coparcenary.  B separates himself after getting 1/3rd share of the coparcenary property.  A dies intestate leaving behind his surviving daughter D and sons B and C.
Examine the claims of D, B and C to the property (coparcentary and self acquired) left by A. 10 Marks
Q.4(a)  The rule of "ejusdem generis" has to be applied with care and caution.  It is not an inviolable rule of law, but it is only permissible inference in the absence of an indication to the contrary, and where context, object and mischief of the enactment do not require restricted meaning to be attached to words of general import, it becomes the duty of the courts to give those words their plain and ordinary meaning.
Comment critically.                                     20 Marks    
4(b)  Write short notes on the following:-
(i)    Harmonious Construction
(ii)    Contextual Interpretation                             10 Marks    
4(c)  It is a settled principle of construction that the extrinsic aid to statutory interpretation is to be resorted to only within well recognized limits and there can be no resort to those aids so long as the words of that statutes are explicit and unambiguous.  This highlights the significance of the internal aids to contruction.  Write a note on the various internal aids to construction admissible in the Indian context.  Refer to decided cases.                             10 Marks
Q.5(a)  Specified landlord Sohan Lal, retired from service on 20.1.2011.  He filed a petition under Section 13-A of the East Punjab Urban Rent Restriction Act, 1949 on 18.4.2012 without obtaining certificate from the authority indicating the date of his retirement, without disclosing that he does not possess any other suitable accommodation in the area concerned.  Is he entitled to maintain the eviction petition?  Is he required to file an affidavit and could claim eviction of more than one residential or scheduled building?  Discuss.                                     10 Marks
5(b)  Suresh, being the landlord, filed petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949.  Whether Naresh being the tenant can contest the said petition in the absence of leave to contest.  If he does not choose to contest or the leave is not granted, whether landlord Suresh is required to prove his case of bona fide necessity by leading evidence or the Rent Controller can straight-away pass the order of eviction?
Decide with reference to case law.                             10 Marks
5(c)  Whether the N.R.I. landlord, who is a co-owner in two different properties which are in occupation of the tenant, can maintain a petition under Section 13-B of the East Punjab Urban Rent Restriction Act, 1949 after his co-owner, who is also an N.R.I., has filed a separate petition in respect of other property?
Decide giving reasons and also narrate the parameters of maintaining a petition under Section 13-B of the Act?                                         10 Marks
5(d)  Landlord Mahipal claimed rent from his tenant Dharampal @ Rs 200/- per month whereas according to Dharampal the rate of rent was Rs 30/- per month.  However, Dharampal deposited rent @ Rs 200/- per month under protest.  Landlord mahipal withdrew his petition without any protest by Dharampal who also did not claim any refund.  Whether Dharampal could have claimed the refund of excess rent paid?  Is there any limitation of such a recovery?  Whether Dharampal is now stopped from questioning the payment of excess rent in a subsequent petition filed by the landlord Mahipal?  Discuss.
10 Marks