Civil Law II

CIVIL LAW – II
TIME OURATION : 3 HOURS                                                                                                                                                                                                                               MAXIMUM MARKS – 200
IMPORTANT INSTRUCTIONS

This question paper comprises of two parts i.e. Part-A and Part-B.  Candidates should answer Part-A and Part-B questions in separate answer sheets.  If any question of Part-A is attempted in Part-B answer sheet or vice versa, if would not be evaluated.
(PART-A)

(SECTION – I)
Answer any two of the questions given below

Q.No.1.     For an immovable property situated at Kanpur a suit is filed for specific performance in Jaipur on the ground that the agreement was executed in Jaipur, and where both the proposed buyer and seller resided and worked for gain.  The suit is contested and decreed by the court at Jaipur and the appeals against the decree are dismissed right upto the Supreme Court.  In execution proceedings the defendant/judgment debtor takes up the objection that the decree is null and void as the same is passed by a court which did not have inherent jurisdiction as the court which had inherent jurisdiction was only the civil court at Kanpur.
(i)  Under what provision the objection is filed to the execution of the decree and will it succeed, if so why?
(ii)  What would be your answer if the plaintiff/decree holder contends that the objection raised by the judgment-debtor is an objection not to the inherent jurisdiction of the court but only qua the territorial jurisdiction and which stands waived then what would be the provision of CPC which would be relied upon by the decree holder?                                 (Marks 25)

Q.No.2. (a)     A summary suit, as different from a regular suit, is filed for recovery of money.  The suit is filed on the basis of a cheque of Rs. 25 lacs which was issued by the plaintiff in favour of the defendant and which cheque was encashed on presentation.  Since the amount was not paid on the due date by the defendant a suit for recovery of moneys was filed claiming the principal amount of Rs. 25 lacs and interest @ 18% p.a. for the pre-suit period as also claiming such interest pendent lite and after passing of the decree till realization.
(b)     In this suit the defendant did not put in appearance after service and hence the suit was decreed for failing to file appearance for an amount of Rs. 25 lacs with pre-suit interest and also interest at the same rate pendent lite and future till realization.
(c)     The defendant thereafter files an application under O. 9 R 13 CPC to set aside the exparte decree on the ground that the service was not validly effected inasmuch as he had shifted from the place where the summons were served of the suit.  No other averment is made in the application for setting aside the ex parte decree except that the defendant was not served in the suit although on merits the defendant had an excellent case because he had repaid the amount due to the plaintiff with interest two months before the summary suit was filed by means of a cheque which was encashhed by the plaintiff.
(i)     A summary suit is filed under which provision of CPC and in such a suit can the court which passed the ex parte decree pass a decree for payment of interest till realization?
(ii)     Was the suit maintainable as a summary suit or should the suit have been filed only as an ordinary suit?
(iii)     Did the defendant validly invoke the provision of O. 9 R.  13 CPC and if not, under which provision, the application would lie, and can the court suo moto treat the application as filed under the correct provision of law if yes how?
(iv)     In addition to pleading the factum of non-service what else had the defendant to plead in an application to set aside the ex parte decree and under which provision?         (Marks 25)

Q.No.3.     Plaintiff-Madan Bhai, the son, files a suit for declaration against his mother Smt.  Sushila Bai-defendant, claiming ownership rights in the property 1 – Golf Links, New Delhi (suit property) on the ground that the suit property was actually purchased from the funds provided by Madan Bhai, though the sale deed is in the name of Smt.  Sushila Bai.  In an earlier suit filed by Smt.  Meera Devi, the wife of Madan Bhai against Madan Bhai for right of residence in the suit property, Madan Bhai had filed a written statement stating that the suit property was of his mother Sushila Devi and therefore the suit property was not a matrimonial home or a shared household in which Smt.  Meera Devi could claim a right of residence.  This earlier suit filed by Smt.  Meera Devi was thus dismissed as the house was held not to be a matrimonial home or a shared household.  In madan Bhai's suit Smt.  Sushila Devi files an application for dismissal of the suit even before issues are framed by filing a certified copy of the written statement filed by Madan Bhai in the suit filed by Smt.  Meera Devi and which showed that madan Bhai admitted the suit property to be owned by Smt.  Sushila Bai.
(i)  Give your decision on such application including by stating the applicable provision of Code of Civil Procedure, 1908 (CPC)?
(II)  In your decision deal with the argument urged by Madan Bhai in his reply that the application of Smt.  Sushila Bai cannot be decided unless evidence is led by both the parties and that an application for decreeing the suit can only be filed by a plaintiff and not a defendant.             (Marks 25)

Q.No.4.  Facts: (a)     A suit for possession (1st Suit) was filed by one Chiranji Lal in 1975 against Mohan and Sohan with respect to the suit property 10-Aurangzeb Road, New Delhi pleading ownership under a sale deed dated 31.1.1974 from late Jai Ram, the father of the defendants Sohan and Mohan.  In this plaint Chiranji Lal pleaded that Jai Ram had purchased the property on 1.1.1974 vide a sale deed from Sh. Om Shastri.  Mohan in his written-statement states that the sale deed by Jai Ram in favour of Chiranji Lal is void for lack of consideration.  Sohan in this suit pleaded in his written statement that actually he was the owner of the suit property because he had purchased the suit property earlier on 1.1.1973 from Om Shastri – the very person from whom his father Jai Ram had purchased the suit property on 1.1.1974.  This suit filed by Chiranji Lal where both Sohan and Mohan were defendants is not decided as on 1.1.1980.
(b)     On 31.1.1980 Mohan files a suit against his brother Sohan for partition of the suit property 10-Aurangzeb Road, New Delhi (2nd suit).  Partition is claimed as the father Jai Ram was the owner under a sale deed dated 1.1.1974 and that since jai Ram died intestate Sohan and Mohan were equal co-owners by inheritance.  Declaration is also sought in this suit against Chiranji Lal that Chiranji Lal is not the owner of the suit property as the sale deed in his favour was void on account of lack of consideration.  Sohan defended this suit by pleading his exclusive ownership of the suit property on account of his having the earlier sale deed in his favour dated 1.1.1973.  Chiranji Lal a defendant in this suit pleads his ownership of the property as per sale deed dated 31.1.1974 and prays for dismissal fo the suit.
(c)     Sohan fiels on 1.3.1980 a suit for declaration of his exclusive ownership of the suit property (3rd suit) on the basis of the registered sale deed dated 1.1.1973 and which suit both Chiranji Lal and Mohan are made as defendants.  This suit filed by Sohan after evidence was led by all the parties, is decreed in favour of Sohan on 31.12.1981, holding that sohan was the owner of the suit property although earlier suits of Mohan and Chiranji Lal were suit pending.
(i)  Could the 3rd suit of Sohan have been decided and decreed by the Court although earlier suits of Chiranji Lal and Mohan were pending?  If yes, then by reference to which provision of CPC?
(ii)  If an application was filed by Chiranji Lal in the 3rd suit stating that this suit of Sohan cannot proceed till his/Chiranji Lal's suit is decided first such an application would have been moved under which provision of CPC and how would the same have been decided?
(iii)  What is the effect of the decision of the suit filed by Sohan on the pending suits of Chiranji Lal and Mohan?

Q.No.5. Facts:(a)     A suit was filed by the mother Smt.  Hira on behalf of her minor son Chandresh against her father-in-law Sh. Jawahar for partition of the HUF property being the residential house at 50, Vasant Kunj, New Delhi.  Though the son was a minor no application was filed to pursue the suit as the next friend of the minor son.  Chandresh became a major during the pendency of the suit and being in need of money sold his undivided share to one Gurdas Singh who instead of substituting himself for Chandresh continued the suit on behalf of Chandresh and obtained a decree for partition.
(b)     During the execution proceedings the executing court held that instead of partition Gurdas Singh was only entitled to the value of the undivided share and not physical partition.
(c)     When the proceedings were going on the determine the value of the share for being paid to Gurdas Singh, the father-in-law Sh. Jawahar filed an application to hold that the decree was null and void on two grounds.  The first was that no application was filed to appoint the mother as the next friend and therefore the decree was null and void.  The second ground was that Gurdas Singh never applied for substituting himself in place of the original plaintiff Chandresh and since by the time decree was passed, Chandresh was no longer owner of any interest in the HUF property thus the decree passed in favour of Chandresh was had in law.
(i)     Was it necessary for Smt. Hira to get herself appointed as a next friend by a court order?
(ii)     What would be the position if the minor was a defendant in the suit and in such a case whether it is necessary for the court to appoint a person to defend a suit on behalf of the minor and what would be the effect of not appointing such a person?
(iii)     Whether it was necessary for Gurdas Singh to get himself substituted in place of Chandresh before the decree was passed, and if yes then the application had to be filed under which provision of CPC, and why?                                                    (Marks 25)

(SECTION – II)

(Answer any two questions.  Each question is of 25 marks)

Q.No.6.(a)     Amrita Singh gave a loan of Rs. 5,00,000/- to Kulvinder Singh bearing interest @18% p.a. simple.  A promissory note was signed by Kulvinder Singh at the time of giving of the loan in he presence of Amrita Singh.
(b)     Over two years after the loan was granted, Kulvinder Singh paid different amounts on ten occasions and signed a register in the presence of Amrita Singh on each occasion when he paid amounts either towards part repayment of the loan or towards interest.
(c)     Amrita Singh had an accountant Kalyanji who used to maintain in the regular course of business all the books of accounts and also all the business records of the various loans which used to be advanced by Amrita Singh.
(d)     An acknowledgment of debt form was signed by Kulvinder Singh after two years of the signing of the promissory note in the presence of Kalyanji but not in the presence of Amrita Singh.
(e)     Since the loan was not repaid Amrita Singh filed a suit for the recovery of loan and interest due.  During the pendency of the suif and during the course of leading her evidence Amrita Singh died.  Amrita Singh in her evidence before she died had proved and exhibited the promissory note and the register, but before she could depose further she expired.
(f)     After the legal heirs of Amrita Singh were brought on record the suit continued and the remaining evidence in the suit was led in the form of deposition of Kalyanji and who also again proved and exhibited the promissory note, the register which Kulvinder Singh signed at the time of repayment of the part of the loan/interest and also the acknowledgement of debt form.
(g)     The advocate of Kulvinder Singh at the stage of final arguments took the objection that the evidence led by Amrita Singh could not be looked into as she died before she was cross examined and that Kalyanji could not prove and exhibit the promissory note and the register where Kulvinder Singh had signed because the said documents were not signed in Kalyanji's presence by Kulvinder Singh.
Q.     (i)     Decide the objections.
(ii)     Could Amrita Singh if she was alive and had led evidence proved and exhibited the acknowledgment of debt form which was not signed in her presence?

Q.No.7(a)     Two brothers, an elder and a younger, inherited an immovable property from their father.  After the death of the father a Memorandum of Family Settlement was entered into and which showed how the property was already divided by metes and bounds by the parties.
(b)     The original of this Memorandum was retained by the elder brother as recorded in the Memorandum and the younger brother only had a photocopy made from the original Memorandum.
(c)     One day the elder brother went to the house of the younger brother for discussing the aspect of mutation of the property in the municipal records for property tax purposes in separate names of both the brothers for the divided portions of the property, and, during the discussion on the pretext of making a photocopy from the market out of the photocopy of the Memorandum which was with the younger brother, the elder brother took the photocopy of the Memorandum but did not return back from the market.
(d)     Thinking that the younger brother had no longer any proof with him of the Family Settlement, the elder brother filed a suit for partition of the inherited property claiming that the property remained undivided after the death of the father.
(e)     It however so happened that the wife of the younger brother had made a photocopy of the photocopy of the Memorandum and had put the same in her bank locked and this she remembered and got the photocopy (which had an endorsement of true copy as per original) from the locker and during the course of recording of the evidence she gave if to her husband who thus wanted to file and prove the same.
(f)     The Advocate of the elder brother objected to the production of the photocopy of the Memorandum on the ground that the document was only secondary evidence and hence not admissible in evidence.
(i)     Can the court admit the photocopy of the original Memorandum and what are the requirements which a person must comply before he seeks to lead in evidence the photocopy/secondary evidence such of the Memorandum.
(ii)     Whether any notice is required to be given to the elder brother before leading in evidence the photocopy of the Memorandum and if so under which provision?
(iii)     Without notice being given to the opposite party can evidence be led of the photocopy of he Memorandum?
(iv)     Is a photocopy of the Memorandum secondary evidence and if yes or no then under which provision?
(v)     Is it permissible to lead in evidence a photocopy of a photocopy?

Q.No.8:(a)     Raman executes a registered gift deed of his plot of land in Delhi in favour of his younger brother Chaman out of natural love and affection and pursuant to which mutation in the name of Chaman is done in the municipal records after taking a no-objection form from Raman.
(b)     In a suit for perpetual injunction filed by Chaman against a third person for preventing the third person from entering the suit property, Raman is added as a party to the suit and he files a written statement admitting the execution of the gift deed of the plot in Delhi.
(c)     After this stage Chaman sells the plot for valuable consideration to Hira, and who purchases the same after verification of the registered gift deed, the mutation papers and the written statement filed by Raman.
(d)     Hira starts construction on the suit plot and more or less completes the construction, without any protest from Raman who knows of the construction being carried out.
(e)     Hira also continues the suit filed by Chaman against the third person by getting himself substituted as plaintiff in place of Chaman.  Raman however at this stage seeks to amend his written statement to dispute the execution of the gift deed by filing an application to amend his written statement to dispute the execution of the gift deed.
(f)     Raman also files an independent suit, against Hira and Chaman, disputing the gift deed on the ground that actually Raman was under a wrong belief that under the gift deed actually the plot of land in the village had been transferred and not the plot in Delhi.  Chaman in the evidence in the suit which was filed by him against the third person, which is now continued by Hira, proves the gift deed by only his own deposition that Raman had signed the gift deed in his presence and no other witness is summoned.
(i)     Can the gift deed be said to have been validly proved by Hira in the suit which was originally filed by Chaman and continued by Hira?
(ii)     Is Raman prevented from challenging the gift deed at the late stage at which he did?
(iii)     Which is the provision which Hira can take and of to invalidate the new stand set up by Raman by seeking amendment at the late stage?
(iv)     What would be the position if Raman was not party to the suit originally filed by Chaman but had admitted the execution of the gift deed in a letter written by him to Chaman as also in the mutation form i.e. is there any difference in the type of admission made in a written statement and in a letter?

Q.No.9.     Answer the following giving the applicable provisions:             (Marks 5 each)
A. if a fact is admitted by a person is it still required to be proved?  Can a court require an admitted fact to be proved?
B, Are books of accounts maintained in the ordinary course of business themselves sufficient to fasten liability upon a defendant in a suit for recovery of moneys?  No or yes?
C, can a witness be cross-examined on facts not deposed by him in his examination-in-chief, if otherwise the cross-examination is on a relevant point?
D, When a document is summoned by a plaintiff from a defendant for being produced as evidence, can the defendant after producing the same insist that the same be taken as evidence, if yes then when and if no then when?
E, If in a letter a person admits a fact for arriving at a compromise, can he say that such admitted fact is without prejudice to a pending court case and the letter will not be used in any place except for recording settlement in the court case?


(PART-B)
(SECTION – I)
Attempt any three questions
Note:  Give reason in support of your decision.

Q.No. 1.     'S' the sister of 'B' filed a suit for partition of properties left behind by their father, who had expired intestate.  Their mother had predeceased their father and there was no other legal heir.  The subject matter of the suit were two flats.  One flat was at Dwarka and the other one was at Model Town.  The flat at Model Town was much costlier than the flat at Dwarka.  During the course of the proceedings in the suit, the parties arrived at a settlement whereby 'S' was given the flat at Dwarka, while 'B' became the exclusive owner of the flat at Model Town.  In order to compensate 'S', 'B' also surrendered his rights in a small flat at Mayur Vihar in favour of 'S'.  The flat at Mayur Vihar was owned by 'B' and had been purchased by 'B' out of his own earnings.  Decide, as to whether such a decree shall require registration under the Registration Act?                                             (Marks 20)

Q.No.2.     The owner of certain premises let it out to tenant for a period of five years.  The parties executed a lease deed, which was not registered.  One of the terms of the said lease deed permitted the tenant to sub let the premises to his friend Mr. 'X', if the tenant so desired without the prior consent of the landlord.  The tenant sub let the premises to his friend Mr. 'X' without taking prior permission of the landlord, on which the landlord filed a petition for eviction of the tenant on the ground that the tenant had sub let the premises without his consent and thus the tenant had incurred the liability of eviction under Section 14(1) proviso (b) of the Delhi Rent Control Act, 1958.  The tenant contends that in view of the term of the lease as stated above, he (tenant) was well within his rights to sublet the premises.  The landlord on the other hand contends that the lease deed having not been registered cannot be looked into.  The tenant replies that the clause permitting the subletting, by itself, did not require compulsory registration.  Thus, though the lease deed cannot be looked into for determining the period of the lease between the parties, the same can certainly be looked into for the limited purpose of establishing the authority of the tenant to sub let the premises.
Decide.                                                            (Marks 20)

Q.No.3.     'A' and 'B' entered into partnership business of retail sale of books on various subjects.  'A' was having a shop at Chandni Chowk which was made the common property of the firm.  'B' invested substantial amount of cash for purchasing the books from various publishers and other purposes relating to the business.  The partnership continued for some months.  There was a dispute between the two partners and thus the partnership was got dissolved through a dissolution deed, whereby 'B' was given the exclusive rights of the shop while 'A' received the total amount lying in the bank account of the partnership firm along with the unsold books lying with the firm on the date of the transfer.  'A' then filed a suit for dissolution of partnership and accounts, wherein he contends that since the partnership assets included immovable property, namely, the shop and the dissolution deed recorded relinquishment by 'B' of his interests in the shop, this document was compulsorily registrable under Section 17(1)© of the Registration Act.  Since the dissolution deed was not got registered it was inadmissible in evidence to prove the dissolution of the partnership, settlement of accounts and ownership of the shop.
Decide.                                                                                                                                                         (Marks 20)

Q.No.4.     'A' sold a house to 'B' for a sum of Rs.1,00,000/- on 3.3.2011.  'A' retained the possession of the house.  On 7.3.2011, 'A' against sold the same house to 'C' for a sum of Rs. 2,00,000/-.  'C' was aware of the earlier sale deed between 'A' and 'B'.  The sale deed in favour of 'C' was got registered on the same day and 'C' was also given the physical possession of the house.  The sale deed in favour of 'B' was got registered on 10.4.2011.  'B' thereafter filed a suit for recovery of possession of the house against 'A' and 'C'.
Decide.                                                                (Marks 20)

(SECTION – II)
Attempt any two questions

Q.No.5.     Mohan advanced Rs. 1,00,000/- by way of loan to Raman.  The payment was made on 1.1.2007.  On the same day, Raman executed a document, whereby Raman undertook to pay the loan amount with simple interest at the rate of 10% p.a. on demand.  On 10.10.2009, Mohan got sent a legal notice asking Raman to make the payment of due amount.  In response, Raman asked his advocate to respond to the notice requesting Mohan to extend the time for making the payment for a period of two years as Raman was passing through financial crisis and had no money to make the payment.  The advocate of Raman sent the reply to the notice accordingly.  The reply was got drafted and dispatched on 1.1.2010 under the signatures of the advocate of Raman.  Mohan filed a suit against Raman for recovery of loan amount along with accrued interest on 3.2.2012.  Raman in his written statement raised the sole contention that the suit is barred by limitation.  Decide while referring to various legal provisions involved.                                                             (Marks 20)

Q.No.6.     'X', a landlady inducted 'Y' as a tenant on a monthly rent of Rs. 5,000/- per month.  The tenancy was for two years and was evidenced by the registered lease deed executed between the parties.  The tenancy commenced in the year 1992.  After expiry of two years, the tenant continued to occupy the tenanted premises.  He also paid rent till the year 1996.  In the year 1996, 'X' was transferred to Chennai and 'Y' stopped paying the rent thereafter.  There was no correspondence between 'X' and 'Y' till the year 2011.  In the year 2011, 'X' got sent a legal notice to 'Y', terminatine the tenancy as per law and asked 'Y' to hand over the vacant possession of the premises to 'X'.  'X' vide the same legal notice, also asked 'Y' to remit the complete due amount of rent to 'X'.  'Y' in response contends that as he continued in possession of the premises for fourteen years without paying even a single rupee by way of rent, he has become the owner of the house.  Thus he is neither liable to vacate the tenanted house nor liable to pay the due reat.
Decide.                                                                      (Marks 20)

Q.No.7.     Ramesh sold his land measuring 200 square yards for Rs. 2,00,000/- and handed over the possession of the same to Sarjesh in the year 1990.  In the year 1991, Sarjesh sold his land to ABC Co.  for a sum of Rs. 2,10,000/-.  On 2.3.1992, one of the sons of Ramesh, who had attained majority in the year 1991, filed a suit for recovery of possession of the land against ABC Co.  on the ground that the land in issue was a joint Hindu Family property and thus Ramesh could not have sold the land to Sarjesh as the transaction was neither for a legal necessity nor in the interests of the Joint Hindu Family.  ABC Co. in its written statement inter alia raised a preliminary objection that as Sarjesh has not been made party to the suit, and the two sale deeds were not under challenge, the suit as framed was not maintainable.  The suit remained pending for some time and ultimately got dismissed on the two preliminary objections raised by ABC Co.  the plaintiff filed an appeal and then withdrew the same in the year 2001 with liberty to take such other legal recourse including a civil suit against the defendant as may be permissible in law.  The plaintiff then in the year 2002 again filed a fresh suit for a declaration that the sale deed in favour of Sarjesh and the consequent sale deed in favour of ABC Co.  were null and void and for recovery of possession of land.  This time Sarjesh was made a defendant to the suit.  ABC Co. filed its written statement and raised a preliminary objection that the suit was barred by time.  The plaintiff relied on Section 14 of the Limitation Act and contended that the suit was within time.
Decide.                                                                   (Marks 20)