Civil Law I

Himachal Civil Services Judicial
Examination, 2005
Civil Law Paper I
Time Allowed : Three Hours                                                                                                                                                                                                                                     Maximum Marks : 200

Note : Part A is compulsory and answer any three questions from Part B.  All questions carry equal marks.  Give reasons for your answers.
Q.  1  (a)  Which of the following facts are facts in issue and which are relevant fact, when X is prosecuted for murder of Y –
(i)  The fact that X had enimity with Y.
(ii)  The fact that X stabbed Y to death.
(iii)  The fact that X had purchased the knife with which Y was stabbed. 
(iv)   The fact that when X stabbed Y he (X) was deprived of his power of self control by grave and sudden provocation given by Y.
(v)   The fact that X admitted before Z that he (X) had killed Y.
(b)  (i)  Discuss the presumption as to abetment of suicide by a married woman.
(ii)  X is accused, before the court of Sessions, of attempt to murder a police officer while on his trial before B, a Session Judge.  Can B be examined as a witness against X?
(c)   A decree of divorce between A and B was passed upon the ground of adultery of B and C.  Is the judgment and decree evidence against C when he is prosecuted for adultery with B  ?
(d)  A pledges certain jewels to B to secure a loan.  B disposes of them before he is entitled to do so.  A without having paid or tendered the amount of loan, sues B for possession of jewels.  Decide.
Q.  2  (a)  C, a resident of Kolkata, has an agent N at madras employed to sell good there.  N sues C in Madras for balance of accounts in respect of dealing between him and C.  During pendency of the suit in Madras Court, C institutes a suit against N in Kolkata for an account and for damages caused by N's alleged negligence.  Should both the courts proceed with the trial ? If not, which court should not proceed with the trial  ?
(b)  A Muslim woman instituted a suit to recover property worth Rs. 10,000/- from her husband and a decree was passed in her favour.  By an oversight she omitted to include a property worth Rs. 1000/- and she instituted another suit for the some.  Is the suit maintainable ?
(c)  A files a suit against B.  B contends that the suit is barred by limitation and by doctrine of res judicata.  The court frames an issue on those points and decides that there is no such bar and orders the case to proceed.  Is the decision a decree ?
(d)  Discuss the salient features of the Himachal Pradesh Courts Act, 1976.
Q.  3  (a)  A and B contract to become partners in a certain business.  The contract does not specify the duration of the proposed partnership.  A sues for specific performance of the contract.  Decide.
(b)  Explain "Facta Probanda" and "Facta probantia".  What is their relevance in pleadings  ?
(c)  The original decree passed in favour of X has been destroyed by fire.  The plaintiff seeks to support his claim by producing a copy of the decree on a plain paper purporting to have been transcribed from a certified copy of the decree and compared with it.  Is it admissible as secondary evidence  ?
(d)  As a general rule acts, statements or writings of a person are admissible only against himself and not against others.  Section 10 of the Evidence Act is an exception to this rule.  Explain with reference to Mirza Akbar v. Emperor.
Q.  4  (a)  Discuss the conditions for recovery of possession of immovable property under Section 6 of the Specific Relief Act 1963.
(b)  X while in the custody of police makes the following statement  :
"I purchased a dagger, with which I killed Y by stabbing him, removed the golden chain from his neck which he then was wearing and sold it to Z."
The golden chain was recovered from Z's possession.  Is the statement relevant in evidence ? If a part of the statement is relevant, point out the said part.
(c)   Distinguish between appeal and revision.  Whether an appeal may be converted into revision and vice versa?  Discuss with reference to latest Supreme Court decisions.
(d)  A brought a suit against B to recover possession of a math property claiming it as the heir of a deceased mahant.  The suit was dismissed because A failed to produce a certificate of succession to establish his heirship.  A brings another suit against B claiming the math property as manager of the math property on behalf of the math.  Plea of res judicata is raised.  Decide.
Q.  5  (a)  Explain the circumstances in which former statements of a witness may be proved to corroborate later testimony as to the same facts.
(b)  What do you understand by set off ? Discuss the effect of set off and the kinds of set off.  Distinguish between set off and counter claim.
(c)  X, being charged with embezzlement, retains Y, an attorney, to defend him.  In the course of proceedings, Y observes that an entry has been made in X's account book, charging X with the sum said to have been embezzeled, which entry was not in the book at the commencement of his employment.  Y intends to give evidence of this fact, X objects raising the defence of privilege.  Decide.
(d)  A intending to sell B his house and one of the three godowns adjacent to it, executes a conveyance prepared by B, in which, through B's fraud, all the three godowns are included.  Of the two godowns which are fraudulently included, B gives one to C and lets the other to D for a rent, neither C nor D having any knowledge of the fraud.  A files a suit for rectification of the conveyance.  Decide.
Q.  6(a)  What is an interpleader suit ? A deposits a box of jewels with B as his agent C alleges that the jewels were wrongly obtained from him by A and claims them from B.  B intends to institute an interpleader suit against A and C.  Advise B.
(b)  Write a note on precept.
(c)  Section 114 illustration (b) of the Evidence Act provides that "the court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars".  But Section 133 of the same Act provides that "an accomplice shall be a competent witness against an accused person, and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice".  How would you reconcile these two provisions.
(d)  A sells a field to B.  There is a right of way over the field of which A has direct personal knowledge which he conceals from B.  Advise B.
Q.  7  (a)  A conveys land to B, who bequeaths it to C and dies.  Thereupon D gets possession of the land and produces a forged instrument stating that the conveyance was made to B in trust for him.  Advise C.
(b)  How a previous statement made by a witness is used under Sections 145 and 155 (3) of the Evidence Act ? What are the requirements of such a statement  ?
(c)  What are the requirements of filing a suit against the Government  ?
(d)  How is transfer in consideration of debt or subject to future payment charged to stamp duty ?
A sells a property for Rs. 5000/- which is subject to mortgage to C for Rs. 10,000/- and unpaid interest of Rs. 2000/-.  On what amount stamp duty is to be charged  ?
Q.  8  (a)  Discuss the powers of the Collector under the Himachal Pradesh Stamp Act.
(b)  Write an explanatory note on substituted service of summons.
(c)  "In criminal proceedings the fact that the accused person has a bad character is irrelevant.  "Explain and discuss exceptions to this rule, if any  ?
(d)  X is charged with murder of a girl a at a lonely spot in a jungle where she and her sister B had gone to pick berries.  On return home B had made a statement to her mother on disclosing the facts of the murder of A by X.  B died before she could give evidence in the court against the accused.  M intends to give evidence as to the fact stated to her by B.  determine the relevance of the evidence under Section 32 (i) or section 33 of the Evidence Act.