Civil Law II

Himachal Civil Services Judicial

Examination, 2006

Civil Law Paper II

Time : Three Hours Maximum Marks : 200

Note : Questions 1 and 8 are compulsory. Attempt any Three questions out of the rest.

Q. 1. (a) "Doctrine of frustration of contract as a defence is part of Indian Law of Contract although by a different name. Supreme Court through case has provided limits of this defence. " Discuss the statement referring to relevant case law on the point and statutory provision.

(b) A, a femal singer agreed to sing in theatre of B for two days in September 2005. One day before the programme was scheduled, she attended a party and took lots of ice creams. The result was that her voice was cracked and she was unable to sing on the days agreed upon in B's Theatre. B sued A for damages. Can B succeed ? Give reasons for your answer.

(c) A entered into agreement with B for the supply of certain bales of cloth manufactured by Kohinoor Mills, Bombay. The contract added "we shall go on supplying bales of cloth to you manufactured by Kohinoor Mills, Bombay as soon as they are supplied to us by the said mill." The Mill failed to supply bales of cloth to A and, therefore, A expressed his inability to supply the bales of cloth to B. B files a suit claiming damages from A on account of breach of contract. Argue for A. Cite case law to strengthen your arguments.

Q. 2. (a) "Law of limitation bars only remedy, but does not destroy the right." Comment on the statement giving illustrations. Also refer to case law to explain your answer.

(b) X files a suit against Y in the Civil court on 26^th of August, 2004. As per limitation rule the last date for filing the suit was 23^rd of August, 2004, 23^rd, 24^th and 25^th August 2004 were holidays. Y takes the plea that the suit is time barred. X pleaded the last day for filing the suit was a holiday. Decide giving reasons.

(c) Y, the appellant handed over some papers to his advocate Z in the morning of the last date for filing the appeal. Through pressure of work, the advocate did not look into the papers till the evening of that day when he found that, it was the last day. The appeal was filed by him on the next day. Decide giving reason whether appeal is maintainable as per law of limitation.

Q. 3. Sunil married Sunita in the year 2000. A son Ram and a daughter Manju were born to them. Sunil influenced by the family planning programme, got himself sterilized in 2004. Unfortunately, in 2005, Sunita, Ram and Manju died in an accident. IN 2006 Sunil married Vinita without disclosing the fact of his sterilization. Vinita now comes to know that due to Sunil's sterilization, she will not be able to bear a child.

Vinita approaches you to find out whether she could get her marriage annulled on the ground of Sunil's impotency and also that her consent is obtained by fraud as to the material fact. Alternatively, can she claim divorce on the ground of cruelty ? Prepare a detailed brief for her relying on the relevant provisions.

Q. 4. (a) Discuss the concept of "Notional Partition" under Section 6 of Hindu Succession Act, 1956. Making a reference to the latest amendment (2005) in Section 6, elaborate your answer.

(b) A, a Hindu male died intestate leaving behind widow, W, father, F, a son S who has converted to Islam, a married daughter D1, and an unmarried daughter, D2 and another son's widow who is residing with her parents. How and to whom his ancestral property will devolve ? Discuss the position before and after the coming into force The Hindu Succession (Amendment) Act, 2005.

Q. 5. (a) Who are the persons capable of giving child in adoption ?

(b) Can a Hindu male after his divorce give child in adoption without the consent of his divorced wife. Give reasons for your answer.

(c) Examine the validity of following adoption :

(i) A adopts Orphan boy whose religion cannot be ascertained.

(ii) A adopts a boy aged 3 years with the consent of the step mother of the boy.

(iii) A has two wives B and C. A adopts a son and a daughter with the consent both the wives. After A's death in 1989 C adopts a son in 2005.

Q. 6. (a) In Hanuman Parshad Padey v. baboo Muniraj Kunwaree 6 MIA 393 the Privy Council laid down that a de facto guardian has the same powers as De jure guardian to transfer his ward's property. Discuss whether this principle is still applicable ? Refer to case law to answer your question.

(b) What are the factors that are taken into consideration while appointing guardian of a minor by the Court ?

(c) Can a Court appoint a guardian for undivided interest in joint family of a Minor ? Give reasons for your answer.

Q. 7. (a) What is meant by rule against perpetuity ? IIIustrate pointing out the distinction between English and Indian Law.

(b) A made a gift of his house to B with whom he had past illicit cohabitation. Is this transfer valid ? Will it make any difference if A's relations with B is adulterous ?

(c) A sold a house to B and on that date B executed a separate unregistered agreement that if he wished to sell the house, he would not sell it back to A for the same price and would not sell it to any other person unless A declines to purchase. Examine the validity of this restraint on alienation.

Q. 8. (a) The appellant-landlord filed an eviction petition against the two respondents on the ground, inter-alia, of subletting, that respondent 1, S, had sublet the tenanted premises, a shop, to respondent 2, M. It was admitted that S and M were brothers, and that S being involved in certain criminal proceedings, had absconded for quite sometime. The Rent Controller allowed the petition and ordered for eviction. The appellate court dismissed the tenant's appeal. The High court allowed the tenant's revision. Was the High Court justified in allowing the tenant's revision. Answer with reference to provisions of the H.P. Urban Rent Control Act, 1987 and relevant case law on the point, if any.

(b) The shop in question was let out by the landlord ti X. Three years back X die and legal heirs of X occupied the shop. The landlord filed an eviction petition against the legal heirs of X on the ground that legal heirs of X have ceased to occupy the said shop without any cause since the death of original tenant X. The contention of legal.

(c) Explain the circumstances in which confession of an accused person may be considered by the court against other co-accused persons.

(d) Discuss briefly the test which the court applies for exercise of discretion in granting temporary injunction in the light of Supreme Court decisions.