Civil Law I

Delhi Judicial Service – 2008
CIVIL LAW -I

Q1.  "The maxim is no more than a rule of evidence.  It is based on common sense and its purpose is to be enable justice to be done when the facts bearing on causation and on the care exercised by the defendant are at the outset unknown to the plaintiff and are or ought to be within the knowledge of the defendant."
(a)     Which maxim is being referred to in the above quotation?
(b)    Explain the scope and conditions for applicability of the maxim?
(c)    Since it is a rule of evidence, does it constitute proof or does it merely set up a presumption?
(d)    Would the maxim apply where a child is found dead in the sewer, having fallen through an open manhole?
Q.  2.  (a)  Neha, a software programmer, takes up employment with macroware Ltd., a large software development company.  Her contract of employment includes the following two clauses:
(i)    During the course of her employment with Macroware ltd., Neha shall not take up any other employment or indulge in software development for third parties.
(ii)    In the event of the termination of the contract of employment, for whatever reason, neha shall not, or a period of three (3) years thereafter, compete directly or indirectly with Macroware Ltd or take up employment as a software programmer with any competitor of Macroware Ltd.
(a)    Would these clauses be enforceable in a court of law?  Discuss.
(b)    Let us assume that Neha, instead of taking up employment Macroware ltd., entered into a partnership with two other programmers Amit and Salma and set up the firm NASware.  Assume further that after two years, Neha retires from the partnership which continues with Amit and Salma as its partners.  While retiring from the firm, Neha is paid whatever is due to her from the partnership and, additionally, she is also paid an amount of Rs. 25 lakhs for agreeing to give up any claim to the name NASware and the bundle of benefits associated with it.  Despite this, Neha starts a sole proprietorship concern using the same name NASware.
Is Neha legally entitled to do so?  Discuss.
Q.  3  (a)  'All contracts are agreements but all agreements are not contracts'.  Discuss.
(b)  X sends a letter to Y proposing to sell his house to Y for certain price.  When is the communication of the proposal completed?
(c)  Y accepts X's proposal through a letter sent by post.  When is the communication of the acceptance complete (i) as against X and (ii)  as against Y?
(d)  X revokes his proposal to sell his house by a telegram.  When is the revocation complete (i) as against X and (ii) as against Y?
(e)  Y revokes his acceptance by telegram.  When is the revocation of acceptance complete (i) as against Y (ii) as against X?
(f)  is the normal rule as to postal communications applicable to instantaneous communications such as telex/fax message?
(g)  A has filed a criminal complaint against B for robbery. A and B enter into an agreement whereby A agrees to drop the prosecution in return for B's promise to restore the value of the articles taken.  Is this agreement enforceable?  Why?
(h)  A enters into a agreement with B promising him to secure a government job for a consideration of Rs. 1 lakh.  Is this agreement enforceable?  Why?
Q.  4  (a)  "In some contracts, it would be impossible for the court to assess the compensation arising from breach and if the compensation contemplated is not by way of penalty or unreasonable, the court can award the same if it is a genuine  ……….as measure of reasonable compensation".  Do you agree?  Give reasons.
(b)  A delivers to B, a common carrier, a machine, to be conveyed, without delay to A's mill informing B that his mill is stopped for want of machine.  B unreasonably delays the delivery of the machine, and A, in consequence, loses a profitable contract with the Government.  What compensation is A entitled to receive from B ?  Why?
Q.  5  (a)  Ajay and Vibha are husband and wife, having married under Hindu rites.  Unhappily, they do not seem to get along.  Ajay is rude and abrasive.  He taunts her and her family members on, almost a daily basis.  Though he has never used physical force, he has threatened to kill her in her sleep.  After suffering the torment for a considerable length of time, she files for divorce on the ground of cruelty.
You are to decide the case in the backdrop of the statutory provisions and the case law.
(b)    'A law of divorce based mainly on fault is inadequate to deal with a broken marriage'.  Discuss in the context of the prevailing provisions of the Hindu Marriage Act, 1955 and development of case law on this aspect.
Q.  6.  (a)  In the context of Hindu Succession Act, 1956 as it stands today, do you think that males and females have equal rights?  Discuss with reference to specific provisions.
(b)  Can the Hindu Marriage Act, 1955 or the Hindu Succession Act, 1956 apply to an Indian who is not a Hindu, Buddhist, Jain or Sikh and is and atheist?  Why?
(c)  X belongs to a Hindu family governed by the custom of male lineal primogeniture.  X has two sons A and B and a daughter C.  X died in 1960.  A claim the entire estate left by X as he is the oldest male heir.  B and C have filed a suit for partition claiming their shares under the Hindu Succession Act, 1956.  Decide the case?
Q.  7  (a)  What is Maher or dower?
(b)  What is meant by Khiyar al-bulugh or '''option of puberty'?
(c)  Distinuguish between ahsan talaq, hasan talaq and talaq-e-tafwid.
(d)  Explain the concepts of Khula and mubaraat.
(e)  What are the grounds of dissolution of marriage available to a Muslim wife under the Dissolution of Muslim marriage Act, 1939?
Q.  8.  (a)  Does a firm require compulsory registration?  What is the effect of non-registration of a firm with the Registrar of Firms?
(b)  What do you understand by the term- 'partnership'?
(c)  A agrees with B, a goldsmith, to buy and furnish gold to B, to be worked up by him and sold, and that they shall share in the resulting profit or loss.  Are A and b partners?  Give reasons.
(d)  A and B agree to work together as carpenters.  However, A is to receive all profits and is to pay wages to B.  is the relationship between A and B a partnership?  Give reasons.
(e)  A and B buy 100 bales of cotton, agreeing to share it between them.  Are A and B partner?  Give reason.
(f)  What is a 'Partnership at Will'?
(g)  What are the mutual rights and liabilities of partners?
Q.  9.  (a)  What are the guiding principles for the grant of temporary injunctions?
(b)  What role does equity play, if any, in the grant of an injunction  ?
(c)  What do you understand by the term – 'mandatory injunction'?
(d)  Which contracts cannot be specifically enforced?
(e)  What is necessarily to be averred and proved by the person seeking specific performance of a contract?
Q.  10  (a)  Discuss the interplay between sections 14(6) and 14D of the Delhi rent Control Act, 1958 using the following example:-
W a widow purchases a tenanted property in 1989.  Shortly thereafter she files an eviction petition under section 14D seeking immediate possession on the plea that she is a widow and requires the property for her residence.  T, who is the tenant, takes the stand that section 14D is not applicable.
(b)   What are the essential constituents of negligence under torts?
(c)    Explain the concepts of vicarious liability.