general commercial laws

8/13/2019 General Commercial Laws

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C.S. Executive (G-1)Genral Commerical Law (GCL)

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TEST PAPER WITH SOLUTION C.S. EXECUTIVE (G-1)

Genral Commerical Law (GCL)

Time allowed : 3 hours Maximum Marks : 100

Total number of questions 8 Test Date : 2 Jun 2013

NOTE : Answer SIX questions including Question No. 1 which is compulsory.

1. (a) Discuss in brief the doctrine of severability. (8 marks)

Ans. When a part of the statute is declared unconstitutional, then a question arises whether the whole of the

statute is to be declared void or only that part which is unconstitutional should be declared as such. To

resolve the problem, the Supreme Court has devised the doctrine of severability. The doctrine means that

if an offending provision can be separated from that which is constitutional then only that part which is

offending is to be declared as void and not the entire statute. This is however, subject to one exception. If

the valid portion is so closely mixed up with invalid portion that it cannot be separated without leaving an

incomplete or more or less mingled remainder then the courts will hold the entire Act void.

The doctrine of severability has been elaborately considered by the Supreme Court in R.M.D.C. v.Union ofIndia, AIR 1957 S.c. 628, and the following rules regarding the question of severability has been laid down:

(1) The intention of the legislature is the determining factor in determining whether the valid part of a statute

are severable from the invalid parts.

(2) If the valid and invalid provisions are so inextricably mixed up that they cannot be separated from the

another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other

hand, if they are so distinct and separate that after striking out what is invalid what remains is itself a

complete code independent of the rest, then it will be upheld notwithstanding that the rest had become

unenforceable.

(3) Even when the provisions which are valid, are distinct and separate from those which are invalid if theyform part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part

will result in the failure of the whole.

(4) When the valid and invalid parts of a Statute are independent and do not form part of a Scheme but

what is left after omitting the invalid portion is so thin and truncated as to be in substance different from

what it was when it emerged out of legislature, then also it will be rejected in its entirety.

(5) The severability of the valid and invalid provisions of a Statute does not depend on whether provisions

are enacted in same section or different section, it is not the form but the substance of the matter that is

material and that has to be ascertained on an examination of the Act as a whole and of the setting of the

relevant provisions therein.

(6) If after the invalid portion is expunged from the Statute what remains cannot be enforced without

making alterations and modifications therein, then the whole of it must be struck down as void as otherwise

it will amount to judicial legislation.

Disclaimer Clause : These solutions are prepared by expert faculty team of Resonance. Views and answers provided may

differ from that would be given by ICSI due to difference in assumptions taken in support of the answers. In such case

answers as provided by ICSI will be deemed as final.


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(7) In determining the legislative intent on the question of severability, it will be legitimate to take into

account the history of legislation, its object, the title and preamble of it.

The doctrine was applied in D.S. Nakara v. Union of India, AIR 1983 S.C. 130 where the Act remained valid

while the invalid portion of it was declared invalid because it was severable from the rest of the Act.

In State of Bombay v. F.N. Balsara,A.I.R.l.951 S.C. 318 it was held that the provisions of the Bombay

Prohibition Act, 1949 which were declared as void did not effect the validity of the entire Act and therefore

there was no necessity for declaring the entire statute as invalid.

(b) Describe the right of minorities to establish and administer educational institutions as enshrined

in the Constitution of India. (6 marks)

Ans. Any section of the citizens residing in the territory of India or any part thereof having a distinct language,

script or culture of its own has the right to conserve the same. Thus, citizens from Tamil Nadu or Bengal

has the right to conserve their language or culture if they are living in Delhi, a Hindi speaking area and vice

versa.

No citizen can be denied admission into any educational institution maintained by the State or receiving aid

out of State funds on grounds only of religion, race, caste, language, or any of them.

Article 30 of the Constitution of India defines Rights of Minority to Establish and Administer Educational

Institutions: -

(1) All minorities, whether based on religion or language, shall have the right to establish and administer

educational institutions of their choice.

[1-A) In making any law providing for the compulsory acquisition of any property of an educational institu-

tion establish and administered by a minority, referred in clause (1), the State shall ensure that the amount

fixed by or determined under such law for the acquisition of such property is such as would not restrict or

abrogate the right guaranteed under that clause.]

(2) The State shall not, in granting aid to educational institutions, discriminate against any educational

institution on the ground that it is under the management of a minority, whether based on religion or lan-

guage.

The scope of article 30 rests on the fact that right to establish and administer educational institution of theirown choice is guaranteed only to linguistic or religious minorities, and no other section of citizens has such

a right. Further article 30(1) gives the right to linguistic minorities irrespective of their religion.

The expression 'minority' in article 30 remains undefined though the court has observed that it refers to any

community which is numerically less than 50 percent of the population of a particular state as a whole when

a law in consideration of which the question of minority right is to be determined as a State law. A commu-

nity, which is minority in specific area of the State though a majority in the state as a whole, would not be

treated as minority for the purpose of this article. A minority could not also be determined in relation to

entire population of the country. If it was a state law, the minorities must be recognized in relation of that

state.

In D. A. V. College v. State Of Punjab , it was observed that, a linguistic minority for the purpose of art. 30(1)

is one which must at least have a separate spoken language. It is not necessary that, that language shouldalso have a distinct script for those who speak it to be a linguistic minority. Religious or linguistic minorities

should be determined only in relation to the particular legislation which is sought to be impugned, namely

that if it is the State Legislature these minorities have to be determined in relation to the population of the

State. Arya Samajis have a distinct script of their own, namely Devnagri therefore they are entitled to invoke

the right guaranteed under art. 29(1) because they are a section of citizens having a distinct script and

under art. 30(1) because of their being a religious minority.

Kerla Education Bill Case

The article first came up for interpretation before a seven judge Constitution Bench constituted to consider

the reference made by the President under article 143 in In re Kerla Education Bill sponsored by the

Communist Government of the state which was stoutly opposed by Christians and Muslims. The questionwas whether minority institutions were entitled also to recognition and state aid as part of the right

guaranteed by article 30(1). C. J. Das held, inter alia:


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(a) An institution, in order to be entitled to the protection, need not deny admission to members of other

communities.

(b) It is not necessary that an institution run by religious minority should impart only religious education or

that one run by the linguistic minority should teach language only. Institution imparting general secular

education is equally protected. The minority has a right to give "a thorough, good general education".

(c) Grant of aid or recognition to such institution cannot be made dependent on their submitting to such

stringent conditions as amount to surrendering their right to administer to them. However the right to

administer does not include the right to misadministration reasonable regulations can be made.

(d) Regulation prescribing the qualifications for teachers was held reasonable. Provision centralizing re-

cruitment of teachers through State Public Service Commission and taking over the collection of fees etc.

were held to be destructive of rights of minorities to manage the institutions.

(c) Explain the rule of ejusdem generis with the help of any case decided by the Supreme Court of

India. (6 marks)

Ans. Rule of ejusdem generis

The expression, `ejusdem generis' means `of the same kind'. Normally, general words should be given

their natural meaning like all other words, unless the context requires otherwise. But when a general word

follows specific words of a distinct category, the general word may be given a restricted meaning of thesame category, the general expression takes its meaning from the preceding particular expressions

because the legislature by using the particular words of a distinct genus has shown its intention to that

effect. If the preceding specific words do not belong to a distinct genus, this rule is not applicable.

It is merely a rule of construction to aid the courts to find out the true intention of the legislature (JageRam

v. State of Haryana, AIR 1971 SC1033)/To apply the rule, the following conditions must exist:

(1) The statute contains an enumeration by specific words.

(2) The members'of the enuitieration constitute a class.

(3) The class is not exhausted by the enumeration.

(4) A general term follows the enumeration.

(5) There is a distinct genus which comprises more than the species and(6) There is no clearly manifested intent that the general term, be given-a broader meaning that the

doctrine requires. (Thakur a Singh. v. Revenue Minister. AIR).

The rule of ejusdem generis must be applied with great caution because it implies a departure from the

natural meaning of words, in order-to give them a meaning or supposed intention of the legislature. The

rule must be controlled by the fundamental rule that statutes must be construed so as to carry out the

object sought to be accomplished. The rule requires that specific words are all of one genus, in which case,

the general words may be presumed to be restricted to that genus. Whether the rule of ejusdem generis

should be applied or not to a particular provision depends upon the purpose and object of the provision,

which is intended to be achieved.

2. (a) What do you mean by 'promissory note' ? State the requisites of a promissory note with the help of

some illustrations. (5 marks)

Ans. Promissory note A promissory note is an instrument in writing (not being a bank-note or a currency-note)

containing an unconditional undertaking, signed by the maker, to pay a certain sum of money only to, or to

the order of, a certain person, or the bearer of the instrument.

Essentials of a promissory note.

The promissory note:-

1. must be in writing;

2. must be signed by a maker;

3. must contain an undertaking to pay;

4. must be a promise to pay unconditionally on demand or at a fixed or determinable future time;

5. payee must be certain;

6. maker must be certain;


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7. sum payable must be certain;

8. must contain a promise to pay money and money only;

9. must be payable to or to the order of a certain person or to the bearer.

Illustrations

Asigns instruments in the following terms :

(a) I promise to pay Bor order `500.

(b) I acknowledge myself to be indebted to Bin `1,000 to be paid on demand, for value received.

(c) Mr.B, I O U Rs.1,000.

(d) I promise to pay BRs.500 and all other sums which shall be due to him.

(e) I promise to pay BRs.500, first deducting there out any money which he may owe me.

(f) I promise to pay BRs.500 seven days after my marriage with C.

(g) I promise to pay BRs.500 on Ds death, provided Dleaves me enough to pay that sum.

(h) I promise to pay BRs.500 and to deliver to him my black horse on 1st January next.

The instruments respectively marked (a) and (b) are promissory notes, the instruments respectively

marked (c), (d), (e), (f), (g) and (h) are not promissory notes. [Section 4 of the Negotiable Instruments

Act, 1881]

(b) Discuss in brief the main remedies available to a person against whom ex parte decree is passed.

(5 marks)

Ans. Legal remedies available two a person against to exparte decree has been passed are as follows.

(i) On dismissal of the suit, when it is not barred by law of limitation, a fresh suit may be instituted by

the plaintiff or ;

(ii) May by an application, on satisfying the Court by reasonable and sufficient ground that the

defendant was prevented from appearing in the Court, then after due service on the opposite

party and hearing of the parties, the ex pane decree or order passed against the defendant,may be set aside, with or without costs or ;

(iii) May Appeal to High Court under Section 96 or ;

(iv) May file an application for reconsideration of the judgment or order or ;

(v) May file an application for review under Order 47. [Order 9]

(c) What is meant by preventive detention' ? What are the safeguards available against preventive

detention ? (6 marks)

Ans. Preventive detention differs from the ordinary or punitive detention both in respect of its purpose and its

justification. Preventive detention means the detention of a person without trial in such circumstances thatthe evidence in possession of the authority is not sufficient to make a fegal charge or to secure the

conviction of the detenu by legal proof but may still be sufficient to justify his detention. The object of

preventive detention is not to punish a man for having done something but to intercept him before he does

it and to prevent him from doing it. No offence is proved nor any charge formulated. The justification of

such detention is suspicion or reasonable probability of the impending commission of the prejudicial act

and not criminal conviction which only can be warranted by legal evidence. (Gopalan v. State of Madras,

1950 SCR 88)

Article 22 of the Constitution guarantees the fundamental right relating to protection against arrest and

detention in certain cases. While providing safeguards against preventive detention, Article 22(4) of the

Constitution stipulates a limit of three - months of prevention detention unless the Advisory use for the

continuation of the detention. The maximum period of detention has to be fixed by the appropriate lawmade by Parliament.


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Article 22(5) casts a dual obligation on the detaining authority-

(a) to communicate to the detenu The grounds on which the detention order has been made;

(b) to give him the earliest opportunity to make representation against the order of detention.

Under clause (6) a wide latitude is given to the authority in the matte, of disclosure. They are given a special

privilege in respect of facts which are considered not desirable to be disclosed in public interest. Article

22(7) empowers Parliament to prescribe the maximum period of detention. It has been held that no

preventive detention law can be made under Article 22(4) unless Parliament prescribes the maximum

period of detention under clause 7.

3. Distinguish between the following. Attempt any four :

(i) 'Specific performance' and injunction'.

(ii) 'Battery' and assault'.

(iii) 'Set-off' and counter claim'.

(iv) 'Review' and 'revision'.

(v) 'Summons' and warrant of arrest'. (4 marks each)

Ans. (i) Injuction and Specific Relief :

Both are covered under Preventive Relief as per Part III of the Specific Relief Act, 1963. However, both canbe distinguished on the following lines.

1 An injunction is a specific order of the court forbidding the

commission of a wrong threatened or the continuance of a

wrongful course of action already begun, or in some cases

(when it is called a mandatory injunction') commanding active

restitution of the former state of things. Lord Halsbury defines

injunction as "a judicial process whereby a party is ordered to

refrain from doing or to do a particular act or thing".

Specific performance is a "judicial

process by which one, who has

invaded or is threatening to invade

the rights (legal or equitable) of

another, is restrained from continuing

or commencing such wrongful act

2 The remedy in case of an injunction is generally directed to

prevent the violation of a negative act

Whereas specific performance is

directed to compelling performance ofan active duty.

3 Injunction may be temporary or perpetual; specific performance has no such

division.

Ans.(ii) Battery and Assault

S.No. Battery S.No. Assault

1 Physical contract is necessary in battery. 1 There is no physical contract in an assault.

2An attempt with applied force completes the act of

battery.2

It is an attemptto commit criminal force.

3 It is completed. 3 It is in initial stage.

4 But every battery must always include assault. 4 Every assault may not include battery.

5 Battery is an accomplished assault. 5 Assault is an infringement of battery.

6

A battery is something more in it an intentional

application of force to the person of another

without lawful justification is necessary.6

An assault is an overt act indicating an

immediate act to commit a battery coupled with

the capacity of carrying out the intention into

effect.

7

No such belief is needed in battery. On the other

hand, the application of even the slightest amount

of force is actionable. Even a slight touch to

person is sufficient.7

In order to constitute an assault, it is also

necessary that the person so assaulted must, on

reasonable grounds, believe that the person

assaulting has the ability to apply the force so

attempted by him.

8

As soon as the water falls on the person, it

becomes battery. 8

If the water drop do not touch the body of the

person throwing of water upon a person is an

assault.


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Ans. (iii)

Set off Counter Claim

1 It is in the nature of defense (like shield). It is in the nature of a demand (like sword).

2 The period of limitation is commuted the date of

institution of the suit.

The period of limitation is commuted from the from

date of accruing the cause of action in favour of the

defendant and against the plaintiff.

3 The demand of both the plaintiff and the

defendant may arise from the same cause of

action

Not necessary that the demand should arise from

the same cause of action.

[Order 8 Rule 6] [Order 8 Rules 6-A, B and C]

Ans.(iv)

Review Revision

1 Review is made by that very Court which haspassed the decree or order

1 Revision order is passed by the High Court.

2 All Courts are empowered to make review. 2 Power of revision is only vested in the High Court

3 Appealable orders and judgments may also be

reviewed.3 Those orders and judgments are not appealable before

the High Court.

4 Review is made when some new evidence is

discovered or mistake or error is to be corrected.4 Revision is made regarding, matters jurisdiction of the

Court.

5 Aggrieved person may submit application for review. 5 High Court is also empowered to revise by calling for

the record from its Subordinate

6 From a reviwed order, an appeal may be preferred 6 No appeal can be preferred.

Ans (v)

Summon Warrant of Arrest

Summons is a document issued from

the office of a court of justice, calling

upon the person to whom it is directed to

attend before a judge or officer of the

court on the day mentioned therein A

Summon is an order to appear beforethe court usually in criminal matters

through a police officer. If summons are

not complied with or in extremely

serious matters in the first instance only

court may issue a warrant.

To secure the presence of the accused, the court issues warrant of

arrest during the pendency of trial. Warrant is an order addressed to

a certain person directing him to arrest the accused and produce

him before the court. The warrant may be issued to Police Officer or

any other person to execute the same. As per Sec. 70 of Cr.P.C.,

every warrant of arrest issued by the court under code of CriminalProcedure shall be signed by the Presiding Officer of such court and

shall bear seal of the court and every such warrant shall remain in

force until it is cancelled by the court which issued or until it is

executed. The Magistrate authorized to issue warrant for detention

of person who ensures that every warrant , authorizing detention to

specifies the age of person to be detained.

Summon and Warrant of Arrest


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4. (a) Discuss the evidentiary value of an instrument not duly stamped under the Indian Stamp Act,

1899. (4 marks)

Ans.(a) Consequences of the instruments not duly stamped

Chapter IV of the Indian Stamp Act, 1899 (consisting of Sections 35 to 48) provides for the consequences

that follow where instruments are not duly stamped.

Section 33 contains a mandate on certain officials to impound an instrument which is not duly stamped.Section 33(1) provides that every person having by law or consent of parties, authority to receive evidence

and every person in charge of a public office, except an officer of police before whom any instrument,

chargeable in his opinion, with duty is produced or comes in the performance of his functions, shall, if it

appears to him that the instrument is not duly stamped, impound the same.

Section 35 of the Indian Stamp Act, 1899 stipulates that no instrument chargeable with duty shall be-

(i) Admitted in evidence for any purpose whatsoever by any person authorised by law (such as judges

or commissioners) or by the consent of the parties (such as arbitrators) to record evidence; or

(ii) Shall be acted upon; or

(iii) Registered; or

(iv) Authenticated by any such person as aforesaid or by any public officer unless such instrument is

duly stamped.

An insufficiently stamped instrument is not an invalid document and it can be admitted in evidence on

payment of penalty.

The proviso appended to Section 35 envisages certain circumstances where-under an instrument shall be

admissible in evidence.

(b) Describe the offence of `hacking' the computer system as provided under the provisions of the

Information Technology Act, 2000. (4 marks)

Ans.(b) Hacking : Section 66 of the Information Technology Act, 2000 deals with "hacking" with computer system.

The term "hacking" with respect of computer terminology denotes the act of obtaining unauthorized access

to a computer system. Section 66 of the Information Technology Act, 2000, provides that :

(1) Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the

public or any person, destroys or deletes or alters any information residing in a computer resource

or diminishes its value or utility or affects it injuriously by any means, commits hacking.

(2) Whoever commits hacking, shall be punished with imprisonment up to three years or with fine

which may extent upto five lakh rupees or with both.

The Section imputes intention as per knowledge to the hacker. Modification of the contents of a computer

will also be an offence. Modification includes addition, alteration and erasure. As is evident, the maximumpunishment prescribed for hacking with computer system under Section 66(2) is imprisonment upto three

years or with fine upto two lakh rupees or both.

(c) State the meaning and characteristics of immovable property as per the Transfer of Property

Act, 1882. (4 marks)

Ans.(c) Meaning of Immovable Property

Transfer of Property Act, 1882 does not define the term I mmovable property, " However, Sec 3 * only

states the Immovable property doesn't include standing timber, growing crops and grass.

According to the General Clauses Act, 1897, Immovable Property includes land, benefit to arise out of

land, things attached to the earth, or permanently fastened to anything attached lo the earth.Thus, by combining the aforesaid two definitions, we can say that the Immovable property includes land,

benefits arising out of the land, things attached to the earth, etc., but doesn't include standing timber,

growing crops and grass.


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Examples of Immovable Property

The following have been recognised as immoveable properly:

1. right to collect rents of immoveable property;

2. a right to way;

3. the equity of redemption;

4. the interest of mortgagee;

5. right to collect lac from trees;

6. aright of fishery;

7. right to receive future rents and profits of land;

8. reversion in property leased;

9. a factory.

(d) What do you mean by the rule of lis pendens ? Write down the essentials of rule of lis pendens as

provided in the Transfer of Property Act, 1882. (4 marks)

Ans.(d)Doctrine of lis pendens

Section 52 lays down the Indian rule of Lis pendens being the legislative expression of the Maxim- "ut lite

pendente nihil innovator" During litigation nothing new should be introduced'. Lis Pendens' generally means

"pendency of a suit in a Court".

It embodies the principle that the subject matter of the suit should not be transferred to third party during the

pendency of the suit. The transferee is bound by the result of the suit in a case when such such property is

transferred during the pendency of the suit.

Essentials

In order to constitute a Lis pendens, the following elements must be present :

1. There must be a suit or proceeding in a Court of competent jurisdiction.

2. The suit or proceeding must not be collusive.

3. The litigation must be one in which right to immoveable property is directly and specifically in question.

4. There must be transfer of or otherwise dealing with the property in dispute by any party to the litigation.

5. Such transfer must effect the rights of the other party that may ultimately accrue under the terms of the

decree or order.

The rule is based on the doctrine of expediency i.e., the necessity for final adjudication. A plea of lis

pendens will be allowed to be raised even though the point is not taken in the pleadings or raised as an

issue.

5. (a) Re-write the following sentences after filling-in the blank spaces with appropriate word(s)/figure(s) :

(i) 'Lease' means a lease of____________ property.

Ans. immovable

(ii) There are two types of stamping namely, adhesive stamping and _________________stamping.

Ans. impressive

(iii) 'Private key' means the key of a key pair used to create a___________________as given under

section 2(1)(zc) of the Information Technology Act, 2000.

Ans. digital signature

(iv) No court shall take cognizance of an offence after six months, if it is punishable with______ only

Ans. Fine

(v) All ____________shall have the right to seek information subject to the provisions of the Right to

Information Act, 2005.

Ans. citizens(vi) Attack on the reputation of a person is called __________

Ans. defamation


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(vii) __________is at times appended to a section to explain the meaning of words contained in the

section.

Ans. Explanation

(viii) A licence does not transfer any __________in the property and the licensee has no right to

possession. (1 mark each)

Ans. interest

(b) Write the most appropriate answer from the given options in respect of the following :

(i) Which of the following conditions are necessary for the application of section 41 of the Transfer of

Property Act, 1882 ____

(a) The transferor is the ostensible owner

(b) The transferor has given his consent

(c) The transfer is not for consideration

(d) Both (a) and (b) above.

Ans. (a)

(ii) Which of the following conditions are required for the principle of res judicata to suits as applied by

courts vide section 11 of the Code of Civil Procedure, 1908 -

(a) The matter directly and substantially arise in former and later suits

(b) The former suit has not been decided

(c) The said suit has not been heard and decided

(d) All the above are required for the application of res judicata.

Ans. (a)

(iii) Which of the following are the different classes of criminal courts.(a) High Courts

(b) Sessions Courts

(c) Judicial Magistrates

(d) All of the above.

Ans. (d)

(iv) Which of the following judicial authorities shall not conduct a summary trial -

(a) Any Judge of a High Court

(b) Any Chief Judicial Magistrate

(c) Any Metropolitan Magistrate

(d) Any first class Magistrate specifically empowered by a High Court.

Ans. (a)

(v) To avoid any inconsistency or repugnancy either in a section or between sections and ther parts of

the statutes, the rule applied is that of -

(a) Harmonious construction

(b) Literal construction

(c) Reasonable construction

(d) None of the above.Ans. (a)


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(vi) Any person aggrieved by an order of the Controller of Certifying Authorities or of the Adjudicating

Officer can appeal to the Cyber Appellate Tribunal within -

(a) 30 days (b) 45 days (c) 60 days (d) 90 days.

Ans. (b)

(vii) Under law of torts, exception to the strict liability is -

(a) Inevitable accident (b) Inevitable mistake

(c) Consent of the plaintiff (d) All of the above.

Ans. (c)

(viii) 'Computer network' means the interconnection of one or more computers through the use of -

(a) Satellite (b) Microwave (c) Terminals (d) All of the above.

Ans. (d) (1 mark each)

6. State, with reasons in brief, whether the following statements are true or false :

(i) The right to know, receive and impart information has been recognised within the right to freedomof speech and expression.

Ans. True

(ii) The rules of evidence are the same in civil and criminal proceedings and there is no strong and

marked difference as to the effect of evidence in civil and criminal proceedings.

Ans. False

(iii) The courts of India are not bound by the. specific provisions of the Limitation Act. 1963.

Ans. False

(iv) The Right to Information Act, 2005 imposes stringent penalty on a public information officer (PR))

for failing to provide information and the penalty is Rs.150 per day upto a maximum of `15,000.-

Ans. False

(v) Under section 24 of the Registration Act, 1908 a document executed by several persons at

different times may be presented for registration and re-registration within six months from the

date of each execution.

Ans. False

(vi) The mere existence of arbitration clause in agreement bars the jurisdiction of civil courtsautomatically.

Ans. False

(vii) The chance of an heir apparent succeeding to an estate, the chance of a relation obtaining a

legacy on the death of kinsman or any other mere possibility of a like nature cannot he transferred.

Ans. True

(viii) Delay in registration of a deed of gift under the Transfer of Property Act, 1882 postpones its

operation.- (2 marks each)

Ans. False


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7. (a) An instrument bears a stamp of sufficient amount, but of improper description. Can it be certified

as duly stamped ? How the instrument can be rectified and what would be the date of its execution

? (6 marks)

Ans (a) No, such Instrument cannot be certified as duly stamped.But under Section 37, an opportunity will be given

to such party, of getting a mistake rectified when a stamp of proper amount, but of improper description has

been used. Under this section, the State Government may make rules providing that, where an instrument

bears a stamp of sufficient amount but of improper description, the instrument may, on payment of the duty

with which the stamp is chargeable, be certified to be duly stamped, and any instrument so certified shallthen be deemed to have been duly stamped as from the date of its execution.

(b) Achal gives an instrument to Basu which is unstamped. This instrument is also not registered -

(i) Will the instrument be admitted in evidence ?

(ii) Will the situation change if the instrument is stamped but not registered before passing to

Basu and Basu gets it registered subsequently ? (5 marks)

Ans.(b) (i) As per Section 35 of the Indian Stamp Act,1899 instruments not duly stamped are inadmissible in

evidence. But in special cases they may be admitted after imposing penalty.

(ii) Yes, there will be change in situation as now that instrument will be admissible in evidence.In K. Narasimha

rao v. Sai Vishnu, it has been held that an unregistered instrument, if duly stamped can be admitted in

evidence even though it continues to be unregistered for collateral purpose but actual terms of transaction

cannot be looked into.

(c) Ragini told Rajendra in the year 2007 that she had committed theft of the jewellery of her neighbour

Asha. Thereafter, Ragini and Rajendra were married in the year 2008. In the year 2009, criminal

proceedings were instituted against Ragini in respect of the theft of the said jewellery. Rajendra is

summoned to give evidence in the said criminal proceedings.

Decide whether Rajendra can disclose the communication made to him by Ragini in the year 2007,in the criminal proceedings in respect of the theft of the jewellery. (5 marks)

Ans. (c) According to Section 122 of the Indian Evidence Act, 1872 the privileges relating to the communication

between husband and wife extends to communication made during marriage.

In this case Ragini informed Rajendra that she committed theft of jewellery of her neighbor before her

marriage with Rajendra. Hence Rajendra can disclose the information given to him by Ragini.

8. (a) Mohan and Sohan are jointly tried for the murder of Rohan. It is proved that Mohan said, "Sohan

and I murdered Rohan." Can the court consider the effect of this confession as against Sohan ?

Give reasons. (5 marks)

Ans : (a) In the case of joint trial, the court may consider the effect of this confession as against Sohan. Section 30

of the Indian evidence Act dealing with the confession of a co-accused says:

When more persons than one are being tried jointly for the same offence , and a confession made by one

of such persons affecting himself and some other of such person is proved, the court may take into consid-

eration such confession as against such other person as well as against the person who makes such

confession.

(b) The driver of a petrol lorry, while transferring petrol from the lorry to an underground tank at a

garage, struck a matchstick in order to light a cigarette and then threw it, still alight on the floor. Anexplosion and a fire ensued.

Who is liable for the damage so caused ? Decide giving case law on this point. (5 marks)


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Ans (b) Employer of the driver will be held vicariously liable for the damages because an employer is liable when-

ever his servant commits a tort in the course of his employment . An act is deemed to be done in the course

of employment if it is either:

(i) a wrongful act authorized by the employer, or

(ii) a wrongful and unauthorized mode of doing some act authorized by the employer.

In Century Insurance Co. Ltd. v. Northern Ireland Road Transport Board (1942) A.C. 509, The House of

Lords held that employers will be held liable for the damage caused, for the act done by the driver in the

course of carrying out his task of delivering petrol; it was an unauthorized way of doing what he was

employed to do.

(c) Shyam, a police officer comes to know from reliable sources that four persons arc staying in a

house and planning to kidnap and murder Rajan. They are equipped with automatic weapons. The

police officer apprehends that they will commit the crime at any moment. He directly goes to that

house and, without any warrant or order from the Metropolitan Magistrate. arrests all the four

persons along with weapons in their possession. Is the arrest of all the four persons valid ? Decide

with reasons. (6 marks)

Ans (c) Normally no person can be arrested without order of the court or warrant. However Chapter ix of Criminalprocedure code,1973 lays down the provisions for preventive action of the police. Section 151 of the Crpc

empowers a police officer to prevent the commission of any cognizable offence. A police officer knowing of

a design to commit any cognizable offence may arrest, without orders form a Magistrate and without a

warrant the person so designing, if it appears to him that the commission of offence cannot be otherwise

prevented. The person so arrested by the police officer cannot be detained in custody for a period exceed-

ing twenty-four hours.

In view of the provisions of Section 151 Crpc, Shyam can arrest all the four persons, who are planning to

kidnap and murder Rajan and such arrest is Valid under Section 151 Crpc.

general commercial laws

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