Civil Law I

Punjab Civil Service Examination 1998
Judicial Branch
Civil Law Paper – I  1998
Time  :  Three Hours
Maximum Marks  :  200

Attempt two questions form part A and one question each from parts B, C, D and E.

PART-A

Q.1.  (a)  A house owned by A was sold by A to S.  Along with the sale deed, an agreement of reconveyance was executed by S in favour of A.  The agreement provided that in case of payment of the sale consideration back to S by A within 3 years, the former will give back the property to the latter;  that in case of death of A within three years 'then only' A's son X will be competent to gbet the house back and the other heirs of A will not be competent to get it back during the life time of X and his children; that in case of death of X or his heirs during the said period, the other heirs of A will be competent to get back the property; that if during the said period of three years S or his heirs had to spend any money for the repairs of the house then at the time of giving the property back, S will be entitled to get the money as well; and that at the time of effecting repairs, S will be giving verbal intimation to A or X and will also be duly keeping with him the accounts in respect thereof.  Subsequent to execution of the agreement of reconveyance, S sold his right, title and interest in the property.  In the meantime A died.  Under the agreement A's son X became entitled to enforce the right to repurchase, X assigned his right to repurchase the house under a sale deed in favour of Z who as an assignee of the right to re-purchase filed a suit within a period of 3 years from the date of execution of the agreement of reconveyance, for getting the property reconveyed in his name by enforcing the agreement.
Decide whether agreement of reconveyance conferred any personal right to get the property reconveyed on person mentioned in the agreement as the beneficiaries of the agreement or whether the right of reconveyance flowing from the agreement could be validly assigned in favour of a third party or a stranger to the family?
(b)   A filed a suit to restrain B from interfering with his possession and enjoyment of the disputed land.  B pleaded that his predecessor-in-title had purchased the land.  The sale deed had been executed by the vendor containing clear recital that A was in possession of the disputed property and that it would be open to the vendee (B's predecessor-in-title) to obtain possession from A.  B did not file suit for possession.  Instead A filed suit for perpetual injunction.
In view of admission in Title Deed obtained by B, and concurrent findings recorded by Courts below, can B still oppose perpetual injunction?  Decide.
Q.2.  (a)  A, mother of B, filed an application under Order 21 Rule 64 for setting aside sale of property in execution of decree contending that to the extent of her right and title in the property, the execution was not valid.  Her application was dismissed and the order of the dismissal became final.  After mother's death B filed an application u/s 47 of CPC, contending that the property could not be brought to sale since it was sold for a grossly inadequate price and sale was excessive esxecution.  The objection regarding excessive execution was, however, not raised before proclamation was settled.
Can B object to the executability of the decree?  Frame issues and give judgment.
(b)  M had two sons – B & P.  A suit for partition by metes and bounds to extent of their one-third share in a house, alleged to be belonging to the joint family of M, B and P, was filed by the respondents who were the descendants through P.  It was held that M was the exclusive owner and it was not a joint family property and that the respondents had no right to partition.  M, during his life time, executed a registered Will on 28.3.64 bequeathing the properties to the appellants who were descendants throught B.  M died on 12.12.68.  the appellants filed a suit on 14.11.77 for declaration of title and possession.  The suit was decreed and the decree was affirmed in appeal.  But the High Court in second appeal, reversed that finding on the ground that respondents remained in possession for more than 12 years and thereby they perfected their title by adverse possession.
Was the High Court justified in reversing the findings?  Decide.
Q.3  (a)  The appellant was landlady of the premises in dispute and the respondent was in occupation of the said premises as a tenant against whom a suit for eviction was filed by the appellant.  the suit ended in a compromise decree which provided that the respondent would vacate the premises and hand over its possession to the appellant or her attorney by a certain date.  Since the premises were not vacated by the respondent and possession was not handed over to the appellant in terms of the compromise decree, she filed an application for execution which was resisted by the respondent, by means of objections filed u/s 47 CPC, in which it was pleaded by him that possession of the premises in question was handed over to the attorney who allowed the respondent to remain in possession of the premises as licensee.  The trial Court allowed the objection of the respondent and it was found by the trial Court that the decree had become inexecutable.  The findings of the trial Court were upheld by the High Court in its revisional jurisdiction.
Was the High Court right in upholding that the decree had become inexecutable?  Decide.
(b)   The 1st respondent company filed a suit claiming that it was duly inducted by the 2nd respondent company as a tenant and therefore it had leasehold right in the suit premises.  The appellant filed a suit claiming that the 2nd respondent was the tenant and 1st respondent had no interest or tenancy right in the premises as against the appellant.  both the suits were pending.  In the suit filed by the 1st respondent, the trial Court passed an order directing that the status quo be maintained and also passed ad interim injunction restraining the appellant from disturbing the possession of the 1st respondent.  During pendency of operation of that order, the appellant filed another suit, impleading the second respondent as the sole defendant and obtained an ex parte decree and in execution thereof took over possession.  The 1st respondent filed an application under Order 21 Rule 90 r/w Section 151 CPC in the second suit of the appellant, stating that it was having lawful possession and could not be unlawfully dispossessed in execution of the decree.  Though it filed an application order 39 Rules 1 & 3, CPC but in substance it was one u/s 144 CPC for restitution of possession by virtue of the order of status quo.
Frame the issues and give judgment.

PART-B

Q.4.  (a)  On the night of occurrence, all the inmates of deceased's house were sleeping in the courtyard of the house.  At about 11 p.m., the deceased's mother-in-law woke up sensing that somebody had intruded into their privacy and asked other whether anyone was there.  Suddenly the deceased cried out that A, who was known to her, was standing there with a gun.  This was followed by the gunshot and pellets had delved into her body.
Is the statement of the deceased that A was standing with the gun, admissible in evidence?
(b)  Material on record indicated that the Investigating Officer had sent repeated letters to the taluka Executive Magistrate for holding the Test Identification Parade.  But the Magistrate could not hold the parade earlier due to his preoccupation.  The contention that the eye witnesses had seen the accused before they were put for TIP is not substantiated.  TIP is not held for two months.
Is the evidence of the TIP admissible?
Q.5.  (a)  A sitting MLA was murdered in the presence of some responsible persons at the flag hoisting, on the Independence Day.  Most of them, however, turned hostile in course of trial of the accused.
Can the Court scrutinize the evidence and come to the conclusion, whether the evidence brought on record, even of the hostile witnesses, would be sufficient to bring home the guilt of accused?
(b)  A, father of B, stated that C gave him the number of the vehicle in which B, his son, was kidnapped.  D also gave the names of the kidnappers.  C, however, did not state in his evidence, that he had seen the kidnappers kidnapping the boy, nor gave the number of the vehicle in which B was kidnapped.
What is the nature of evidence of A?  Is it admissible?  To what extent, the testimony of C would be admissible?

PART-C

Q.6.  (a)  A sued B to recover the price of a pair of mares sold by B to A, on the ground that the contract was voidable at his option, as his consent was obtained by a mis-representation, on the part of B.  In reply to certain inquiries by A, B had written to him "I think your queries would be more satisfactorily answered by a friend, if you have one in the station and I shall feel more satisfied.  All I can say, is that the mares are thoroughly sound …………I would prefer your buying them, after you have satisfied yourself with regard to them, through a friend."  The mares turned out to be unsound, and it was found that A's consent had been obtained by misrepresentation.
Is the contract voidable by A on the ground of the above misrepresentation?
(b)   A entered into a written agreement with bank B, whereby he was to overdraw his account, it being provided that interest should be charged at a certain rate per annum.  The course of business adopted by the bank was that at the end of each month, interest was added to the balance then due, and the total carried to the debit of the account, the effect being that compound interest with monthly rests, was charged.  A knew all along, how the interest was being computed and charged, but raised no objection.  Ca A legally object to pay compound interest with monthly rests  ?  Decide.
(c)  T's solicitor had an interview with G and his solicitor, to arrange for the compromise of an action.  Just before the interview, T's solicitor had heard the result of certain proceedings which materially affected the position of the parties, but he discreetly refrained from communicating this intimation to G's solicitor.
Is the compromise arranged in this circumstance binding?  Decide
Q.7.  (a)  A, by a letter, gave an undertaking to the natural father of the defendant that he would supply money for the litigation, if the defendant's adoption was challenged.  In pursuance of this undertaking, from time to time, moneys were advanced by A and after A's death by A's son to the defendant and his father.  Then, the defendants passed a promissory note in favour of A's son for the total sum advanced by A and A's son.
Is the suit filed by A's son on this promissory note maintainable?  Give reasons in support of your answer with reference to section(s) of Indian Contract Act, and case law, if any.
(b) In a suit for damages for non-delivery of linseed upon a contract, the terms of which as to the payment were cash on delivery, part delivery had been made by the defendants, and a sum of Rs. 1,000 had been paid on account, by plaintiffs.  The plaintiffs, then made a claim against the defendants for excess refraction, and the defendants thereupon, refused to deliver the rest of the linseed, unless the plaintiffs paid the full amount owing for the portion that had been delivered.  The plaintiffs declined to accept these terms, and the defendants, then cancelled the contract.
Can the defendants rescind the contract  ?  Decide.
(c)  The defendant was in possession of the plaintiff's estates, as agent and manager, at a salary under a power of Attorney.  In addition to the consideration of his services as agent and manager, which were mentioned in power of Attorney, the defendant had given further consideration for the granting of power of attorney to him in the shape of personal guarantee to a mortgagee of the estates, that he would pay the mortgage-debt on the day fixed for redemption.  This further consideration was not mentioned in the power of attorney.  But the defendant urged that the giving of the guarantee, gave him an authority coupled with an interest, and that therefore, the power of attorney was irrevocable.
Is the power of attorney irrevocable?  Decide.

PART -D

Q.8.  (a)  A, the holder of the bill of lading, re-sells the goods to B who pays the money.  Does B acquire interest in the goods?
Has the original seller any right of stoppage in transit?  Give answer with reference to section(s) of the Sale of Goods Act and case law, if any.
(b)   A and B entered into an agreement for doing business in rice to be supplied from Indian to Russia.  But in order to keep the real nature of the business secret from a shipper in India, made agreement for the shipping and consignation in separate names, half in the name of A and half in that of B and for their purchases, draw bills separately in their respective name on C, who owed neither of them any money, but accepted them with full knowledge of the terms and conditions of the agreement.  But subsequently, when the bills fell due, A met the bills drawn by him but B did not.  B because insolvent.  C sued both A & B.
Are A and B liable for the amount?  Give reasons in support of your answer with reference to section(s) of Indian Partnership Act and case law, if any.
Q.9.  (a)  A delivers goods to B for resale in U.K. and the price was fixed in the contract of the sale.  The contract fixed the quality of goods on seller and time was made essence of it.
It B a del credere agent of A?  Was it a contract of sale or agency?  Is del credere agent liable to indemnify the seller if owing to insolvency of the buyer or other analogous cause, the seller is unable to recover the price?  Give reasons in support of your answer with reference to section(s) of the Sale of Goods Act and case law, if any.
(b)   The plaintiff firm who were managing agents of the defendant company filed a suit for recovery of the money due to it, consequent on its resigning from managing agency which was duly accepted by the Board of Directors of the defendant company.  The plaintiff firm originally consisted of five partners and besides them, a minor who was admitted to the benefits of the partnership, through his mother.  A deed was executed for this purpose on 19th May, 1949 and was signed by five parties and the mother of the minor.  On 24th October, 1949 another deed was executed in which the mother of the minor was shown as a partner instead of her minor son.  The defendants resisted the suit on the ground inter alia that the plaintiff firm could not maintain the suit as constitution of the old firm which acted as managing agents of the defendant company had been changed on 24th October, 1949.  From that date it was stated that the plaintiff firm consisted of six partners including the mother of the minor.  the newly constituted firm, according to defendant company, had not been registered.
Is the suit maintainable  ?  Decide

PART- E

Q.10.  (a)  A and B carried on a business of household furnishers, under the name of C.  the partnership was subsequently dissolved.  But A carried on business, under the name of C.  D received an order from A, under the name of C, for supply of furniture, for six suites.  The price was never paid to D.  D obtained judgment against C and sought to enforce it against B.  the only knowledge which D had of B was that his name had appeared on some old headed paper which had been used by C, without B's authority, in confirming the order for the purchase of the furniture and which B had failed to destroy, before he left the firm.  Is B liable?
Decide with reference to section(s) of the Indian partnership Act and case law, if any.
(b)  (I)  Is the Senior Subordinate Judge Court the same as that of the Subordinate Judgee of 1st Class?
(b)  (2)  Is an Additional District Judge, to whom the appeal is made over for disposal, by the District Judge under the Public Premises Act, competent to hear the appeal?
Q.11.  (a)  Six specific stacks of oats had been sold by A to B, to be paid for, on July 16, 1998.  A afterwards, told B that if he failed to pay on the very day, he should not have the oats.  B did not pay on July 16, 1998, but tendered the price shortly afterwards.  A, however, subsequently sold the oats to another person.
Was A justified in repudiating the contract?  Decide the case with reference to section(s) of the Sale of Goods Act and case law, if any.
(b)   (1).  Can a remand order confer jurisdiction on the subordinate court, when it originally has no such power?
(2)  Can a finding that the parties are governed by custom on one hand or their personal law on the other, be challenged in appeal?