Mock test questions on the Constitutional Law of India, Indian Penal Code, Law of Contract and Law of Torts for Indian Judicial Service mains examination!
Q.1. Is there any protection under the Constitution of India against arrest and detention? Mention the categories of persons who are so protected?
[Assam Judicial Service (Grade-III) Written Examination, 2011]
Ans. The Constitution of India prescribes many safeguards against Illegal arrest and detention. Article 21 guarantees life and personal liberty which has been liberally interpreted by Indian Judiciary including protection against Illegal arrest and detention. D.K. Basu v. State of West Bengal MR 1997 SC 610 is a landmark case where Hon’ble Supreme Court of India laid down various guidelines to be followed in respect of arrest.
Specifically, Article 22 of the Indian Constitution provides protection against arrest and detention in certain cases. Article 22 (1) and 22 (2) deal with detention under the ordinary law of crimes and lay down the procedure to be followed in case of arrest. Article 22 (3)-22 (6) deal with persons detained under a preventive detention law.
Article 22 has been divided in two parts:
(1) Persons Arrested under the Ordinary Law of Crimes:
Under this part the following rights are available to all-citizens and non-citizens:
1. The right to be informed as soon as may be the ground of arrest.
2. The right to consult and to be represented by a lawyer of his own choice.
3. The right to be produced before a Magistrate within 25 hours.
4. The freedom from detention beyond the said period except by the order of the Magistrate.
But these rights are not available to-enemy aliens and any person who is arrested or detained under any law providing for preventive detention. In C.B.I, v. Anupam J. Kulkarni, (1992) 3 SCC 141, the Supreme Court laid down the guidelines governing arrest of an accused when investigation cannot be completed within 24 hours.
(2) Persons Detained under the Law of Preventive Detention-Under this part, the person can be detained for maximum three months without authorization by Advisory Board. Article 22 (5) mentions that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order.
Q.2. “A declaration of fundamental rights is meaningless unless there is an effective judicial remedy for their enforcement.” Comment on this statement explaining the judicial remedies provided in the Constitution of India.
[Uttar Pradesh Civil Judge (J.D.) Mains Examination, 2016]
What is the difference between a writ of habeas corpus, the writ of mandamus and a writ of quo warranto?
[Supreme Court Advocates-on-Record Examination, 2017]
Ans. The Constitution of India provides six fundamental rights, in Part-III, including right to constitutional remedies as a fundamental right contained in Article 32 which indicates the intention of Constitution framers that they were fully aware and in favour of effective judicial remedy for enforcing fundamental rights.
It is wholly correct that the declaration of fundamental rights in the Constitution is meaningless unless there is effective machinery for the enforcement of the rights. It is the remedy, which makes the right real. If there is no remedy there is no right at all. Additionally, Article 226 also empowers all the High Courts to issue the directions, orders or writs for the enforcement of fundamental rights and for any other purpose.
Articles 32 and 226 have empowered the Supreme Court and all High Courts of India to issue Writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari.
Habeas Corpus:
Habeas Corpus literally means ‘to have the body of’. This writ is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition.
But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.
However, if all the material facts relating to the detention of the person are made available to the court, the court may not insist upon the physical production of detained person. When the court finds the detention Illegal or unlawful, it will order the release of the person henceforth.
Mandamus:
The writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board, corporation or any administrative authority, or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person. Writ of Mandamus may be applied by any person who seeks a legal duty to be performed by a person or a body.
This writ may be also issued against inferior courts or other judicial bodies when they have refused to exercise their jurisdiction. It cannot be issued against an individual or private organisation.
Prohibition:
This writ is issued to the inferior court by the Supreme Court or High Court forbidding to proceed with a case that is beyond its jurisdiction. While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; Prohibition can be issued only against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies. The purpose of the court is to prohibit the judicial/ quasi-judicial body from proceeding further with the case.
Certiorari:
Certiorari is a Latin word meaning “to be informed of, or to be made certain in regard to”. It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with it or squash its order.
This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. The purpose of the writ is to quash or nullify the judgement/direction/order issued by such a judicial/quasi-judicial body. Therefore, it is a kind of corrective/curative writ.
Quo-Warranto:
‘Quo warranto’ means “by what authority.” Whenever a person wrongfully usurps an office, he is prevented by the writ of quo warranto from continuing that office. This writ is applicable to the public offices only and not to private offices. This is very powerful tool against the usurpation of public offices.
The Indian judiciary being very sensitive and alive to the protection of the human rights of the people has provided other platform also where the people may approach for redressing their grievances i.e. Public Interest Litigation and Judicial Activism. In true sense, through judicial activism and Public Interest Litigation, the scope and ambit of these rights has been widened.
In Dr. Upendra Baxi v. State of U. P., (1986) 4 SCC 106 it was observed that the public interest litigation is not a litigation of an adversary character undertaken for the purpose of holding the State Government or its Officers responsible for making reparation.
This kind of litigation involves a collaborative and co-operative effort on the part of the State Government and its officers, the lawyers appearing in the case and the Bench for the purpose of making human rights, meaningful for the weaker sections of the community.
It marks a step forward in the direction of reaching socio-economic justice to the depraved and vulnerable sections of humanity in this country.
In Bihar Legal Support Society v. Chief Justice of India, (1986) 4 SCC 767 the Court observed that in the matters of life and liberty of people Supreme Court is more concerned with weaker, deprived, vulnerable and ignorant class of people than the affluent class.
Q.3. What are the basic structures of the Constitution of India?
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. The expression “Basic Structure” is not mentioned in the Constitution of India but it has been developed gradually with the interference of the judiciary from time to time to protect the basic rights of the people and the ideals and the philosophy of the Constitution. The Supreme Court recognised this concept for the first time in the historic Kesavananda Bharati v. State of Kerala, AIR 1973SC 1461.
In this case, basic features of the Constitution are separately stated by each judge as under:
Sikri, C.J. explained the concept of basic structure including:
i. Supremacy of the Constitution
ii. Republican and democratic form of government
iii. Secular character of the Constitution
iv. Separation of powers between the legislature, executive and the judiciary
v. Federal character of the Constitution
Shelat, J. and Grover, J. added three more basic features to this list:
i. The mandate to build a welfare state contained in the Directive Principles of State Policy
ii. Unity and integrity of the nation
iii. Sovereignty of the country.
Hegde, J. and Mukherjea, J. mentioned a separate list of basic features as:
i. Sovereignty of India
ii. Democratic character of our polity
iii. Unity of the country
iv. Essential features of the individual freedoms secured to the citizens
v. Mandate to build a welfare state
Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they are translated such as:
i. Sovereign democratic republic
ii. Justice – social, economic and political
iii. Liberty of thought, expression, belief, faith and worship
iv. Equality of status and the opportunity.
In Minerva Mills Ltd. v. Union of India, 1981 SCR (1) 206 the Supreme Court by majority struck down clauses (4) and (5) of Article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the essential feature of the basic structure of the constitution. It was ruled by court that a limited amending power itself is a basic feature of the Constitution.
In L. Chandra Kumar v. Union of India and others, AIR 1997 SC 1125 a larger Bench of seven Judges unequivocally declared that the power of judicial review over legislative action vested in the High Courts under Article 226 and in the Supreme Court under Article 32 of the Constitution is an integral and essential feature of the Constitution, constituting part of its basic structure.
Supreme Court of India in I.R. Coelho v. State of Tamil Nadu, on 11 January, 2007 held that even though an Act is put in the Ninth Schedule by a constitutional amendment, its provisions would be open to attack on the ground that they destroy or damage the basic structure if the fundamental right or rights taken away or abrogated pertains or pertain to the basic structure.
Supreme Court of India in Ashoka Kumar Thakur v. Union of India, on 10 April, 2008 held that imposing reservation on unaided institutions violates the Basic Structure by stripping citizens of their fundamental right under Article 19(l)(g) to carry on an occupation.
Supreme Court of India in Glanrock Estate (P) Ltd v. State of Tamil Nadu, on 9 September, 2010 held that right to Equality before law, Right to Equality of Opportunity in matters of public employment, Right to Protection of life and personal liberty, Right against Exploitation, Right to Freedom of Religion etc. are all fundamental rights guaranteed under Part III of the Constitution and a common thread running through all the Articles in Part III of the Constitution have a common identity committed to an overarching principle which is the basic structure of the Constitution.
[Himachal Pradesh Judicial Service Mains Examination, 2016]
Ans. There are three types of punishment namely-
(i) Solitary confinement,
(ii) Cellular confinement, and
(iii) Separate confinement.
Solitary Confinement means such confinement with or without labour as entirely secludes the prisoner both from sight of, and communication with, other prisoners.
Solitary confinement as a punishment is regarded as “the complete isolation of the prisoner from all human society and his confinement in a cell of considerable size so arranged that he had no direct intercourse or sight of any human being and no employment or instruction. Complete isolation from all human society is solitary confinement in its stricter sense.
The separate confinement of a person with occasional access of other persons is also solitary confinement. The punishment of solitary confinement can be imposed by a Court only, and, in view of its dangerous potentialities stringent conditions are imposed thereon. Cellular confinement is a punishment which can be imposed on a prisoner by a Superintendent of Jail.
A Superintendent of Jail can punish in a suitable case a prisoner by imposing on him cellular confinement for a period not exceeding fourteen days, provided that after each period of cellular confinement an interval of not less than such period must elapse before the prisoner is again sentenced to cellular or solitary confinement. Cellular confinement in defined to mean such confinement with or without labour as entirely secludes a prisoner from communication with, but not from sight of, other prisoners.
Separate confinement is defined to mean such confinement with or without labour as secludes a prisoner from communication with, but not from sight of, other prisoners, and allows him not less than one hour’s exercise per diem and to have his meals in association with one or more other prisoners. Separate confinement for a period not exceeding three months can be imposed on prisoner in a suitable case by the Superintendent of Jail.
The relevant provisions relating to solitary confinement are contained in sections 73 and 74 IPC as under:
73. Solitary Confinement:
Whenever any person is convicted of an offence for which under this Code the Court has power to sentence him to rigorous imprisonment, the Court may, by its sentence, order that the offender shall be kept in solitary confinement for any portion or portions of the imprisonment to which he is sentenced, not exceeding three months in the whole, according to the following scale, that is to say-
i. A time not exceeding one month if the term of imprisonment shall not exceed six months.
ii. A tittle not exceeding two months if the term of imprisonment shall exceed six months and shall not exceed one year.
iii. A time not exceeding three months if the term of imprisonment shall exceed one year.
74. Limit of Solitary Confinement:
In executing a sentence of solitary confinement, such confinement shall in no case exceed fourteen days at a time, with intervals between the periods of solitary confinement of not less duration than such periods; and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.
It means no person can be sentenced to undergo solitary confinement for more than three months.
There is a limit prescribed on the punishment of solitary confinement that can be imposed on a prisoner- it shall not exceed:
(a) One month, if the term of imprisonment does not exceed six months,
(b) Two months, if the term of imprisonment exceeds six months, but does not exceed one year, and
(c) Three months if the term exceeds one year.
Section 74 IPC says, in executing a sentence of solitary confinement, such confinement hall in no case exceed fourteen days at a time with intervals between the periods of solitary confinement of not less duration than such periods, and when the imprisonment awarded shall exceed three months, the solitary confinement shall not exceed seven days in any one month of the whole imprisonment awarded, with intervals between the periods of solitary confinement of not less duration than such periods.
Supreme Court of India in Sunil Batra v. Delhi Administration, 1979 SCR (1) 392 held that sections 73 and 74 of the Indian Penal Code leave no room for doubt that solitary confinement is by itself a substantive punishment which can be imposed by a court of law. It cannot be left to the whim and caprice of prison authorities.
The limit of solitary confinement that can be imposed under Court’s order is strictly prescribed by the Penal Code. Solitary confinement is so revolting to the modern sociologist and law reformer that the Law Commission recommended that the punishment of solitaiy confinement is out of tune with modern thinking and should not find a place in the Penal Code as a punishment to be ordered by any criminal court even though it may be necessary as a measure of jail discipline. Law is not a formal label, nor logomachy but a working technique of justice.
The Penal Code and the Criminal Procedure Code regard punitive solitude too harsh and the Legislature cannot be intended to permit preventive solitary confinement, released even from the restrictions of Sections 73 and 74 IPC.
[Assam Judicial Service (Grade-III) Main Examination, 2011]
Write short note on unlawful assembly.
[Assam Judicial Service (Grade-III) Main Examination, 2013]
What is unlawful assembly?
[Assam Judicial Service (Grade-III) Main Examination, 2015]
Write short note on Unlawful Assembly and Rioting.
[Goa Judicial Service (Junior Division) Examination, 2010]
Distinguish between rioting and unlawful assembly.
[Himachal Pradesh Judicial Service Mains Examination, 2016]
Ans. The gathering of five or more than five persons for the purpose of committing either a crime or a non-criminal act in a manner likely to terrify the public is unlawful assembly. This term is defined in section 141 IPC as an assembly of five or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is-
First:
To overawe by criminal force, or show of criminal force, 1 [the Central or any State Government or Parliament or the Legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or
Second:
To resist the execution of any law, or of any legal process; or
Third:
To commit any mischief or criminal trespass, or other offence; or
Fourth:
By means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or
Fifth:
By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
Explanation:
An assembly which was not unlawful when it assembled, may subsequently become an unlawful assembly.
Thus, the essential ingredients of unlawful assembly are as under:
i. An assembly of five or more persons with a common object
ii. The object is common to all the members
iii. Members joined or continued to join such assembly
iv. They acted dishonestly
v. They assembled knowingly
Supreme Court of India in Gangadhar Behera and ors v. State of Orissa on 10 October, 2002 observed that the emphasis is on the common object and not on common intention. Mere presence in an unlawful assembly cannot render a person liable unless there was a common object and he was actuated by that common object and that object is one of those set out in Section 141.
In Lalji v. State of U.P., 1989 SCR (1) 130 the Court held that once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hand commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew likely to be committed in prosecution of that object.
Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act.
Section 149 IPC says that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members or that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.
It is well settled that once a membership of an unlawful assembly is established, it is not incumbent on the prosecution to establish whether any specific overt act has been assigned to any accused. Mere membership of the unlawful assembly is sufficient.
Every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed; State of Maharashtra v. Joseph Mingel Koli, (1997) 2 Crimes 228 (Bom).
Q.6. What is the difference between common intention and common object?
[Assam Judicial Service (Grade-III) Main Examination, 2015]
[Uttarakhand Higher Judicial Service Mains Examination, 2012]
Ans. The terms ‘common intention’ and ‘common object’ have been used in sections 34 and 149 IPC respectively. In Queen v. SabedAli, (1873) it was pointed out that Section 149 did not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member.
The section describes the offence which is to be so attributed under two alternative forms:
(1) It must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or
(2) An offence such as the members of that assembly knew to be likely to be committed in prosecution of that object.
In Barendra Kumar Ghosh v. Emperor, AIR 1925 PC 1 the distinction between Sections 149 and 34 IPC was pointed out. It was observed that Section 149 postulates an assembly of five or more persons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object.
There is a difference between common object and common intention; though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning.
In Munna Chanda v. State of Assam, [(2006) 3 SCC 752], the Court held that the concept of common object, it is well known, is different from common intention. It is true that so far as common object is concerned no prior concert is required. Common object can be formed on the spur of the moment.
Course of conduct adopted by the members of the assembly, however, is a relevant factor. At what point of time the common object of the unlawful assembly was formed would depend upon the facts and circumstances of each case. Section 149 IPC creates a specific and distinct offence. There are two essential ingredients thereof-
(i) Commission of an offence by any member of an unlawful assembly, and
(ii) Such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed.
In Maranadu v. State, 2008 (12) SCALE 420, the Court stated the law as: Common object’ is different from common intention’ as it does not require a prior concert and a common meeting of minds before the attack. It is enough if each has the same object in view and their number is five or more and that they act as an assembly to achieve that object.
The ‘common object’ of an assembly is to be ascertained from the acts and language of the members composing it, and from a consideration of all the surrounding circumstances. It may be gathered from the course of conduct adopted by the members of the assembly.
For determination of the common object of the unlawful assembly, the conduct of each of the members of the unlawful assembly, before and at the time of attack and thereafter, the motive for the crime, are some of the relevant considerations.
What the common object of the unlawful assembly is at a particular stage of the incident is essentially a question of fact to be determined, keeping in view the nature of the assembly, the arms carried by the members, and the behaviour of the members at or near the scene of the incident. It is not necessary under law that in all cases of unlawful assembly, with an unlawful common object, the same must be translated into action or be successful.
Under the Explanation to Section 141, an assembly which was not unlawful when it was assembled, may subsequently become unlawful. It is not necessary that the intention or the purpose, which is necessary to render an assembly an unlawful one comes into existence at the outset. The time of forming an unlawful intent is not material. An assembly which, at its commencement or even for some time thereafter, is lawful, may subsequently become unlawful. In other words it can develop during the course of incident at the spot co instanti.
Q.7. A, in support of a just claim which B has against Z for one thousand rupees, falsely swears on a trial that he heard Z admit the justice of B’s claim. Has A committed any offence?
[Kerala Judicial Test (Higher) Examination, 2016]
Ans. Yes, A has given false evidence. Giving false evidence is punishable under section 191 IPC which provides that-
191. Giving False Evidence:
Whoever, being legally bound by an oath or by an express provision of law to state the truth, or being bound by law to make a declaration upon any subject, makes any statement which is false, and which he either knows or believes to be false or does not believe to be true, is said to give false evidence.
Explanation 1:
A statement is within the meaning of this section whether it is made verbally or otherwise.
Explanation 2:
A false statement as to the belief of the person attesting is within the meaning of this section, and a person may be guilty of giving false evidence by stating that he believes a thing which he does not believe, as well as by stating that he knows a thing which he does not know.
Section 191 makes the giving of false evidence an offence. Such offence is known as perjury in English law. A person is said to give false evidence, if he-
(i) Being legally bound by an oath or by an express provision of the law to state the truth, or to make a declaration, upon any subject
(ii) Makes a false statement
(iii) Which he either-
(a) Knows or believes to be false, or
(b) Does not believe to be true.
Allahabad High Court in Mahesh Tiwari v. State of U.P. and another (24 August, 2016) observed that the salient features of giving false evidence under Section 191 IPC are- (i) intentionally making a false statement, or (ii) declaration by a person who is under a legal obligation to speak the truth. The giving of false evidence amounts to practicing of fraud upon the court.
Thus to make a statement of false evidence within the meaning of this section, it must be established that the person was legally bound by an oath or an express provision of law (a) to state the truth, or (b) to make a declaration upon any subject.
Q.8. Explain the provision of section 277 of the Indian Penal Code, 1860.
[Tripura Judicial Sen’ice (Grade-III) Written Examination, 2014]
Ans. The water of public spring or reservoir belongs to every member of the community, and if a person voluntarily fouls it, he comes within the ambit of Section 277 as it renders the water of the spring less fit for the purpose for which it is ordinarily used. Section 277 as mentioned below:
277. Fouling Water of Public Spring or Reservoir:
Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as to render it less fit for the purpose for which it is ordinarily used, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred rupees, or with both.
The ingredients of Section 277 of the code are:
i. Voluntary corruption or fouling of water;
ii. The water must be of public spring or reservoir; and
iii. The water must be rendered less fit for the purpose for which it is ordinarily used.
The offence under Section 277 is cognizable but summons should ordinarily issue in the first instance. It is bailable but not compoundable and is triable by any Magistrate summarily.
Q.9. A young man of 26 years is in love with a girl. But she does not respond to the same. Angered by the same, the young man in order to teach her a lesson, procures sulphuric acid and throws it on her face, causing severe acid burn injuries including loss of both eyesight and permanent disfiguration of face and hands. What is the offence committed? Name the latest law laid down by the High Court of Karnataka on the subject.
[Karnataka District Judge Examination, 2007]
Ans. When the question was asked, the young man committed grievous hurt but by Criminal Law Amendment Act, 2013 the specific provisions in IPC have been provided. Section 326A and 326B deal with acid attack. Voluntarily causing grievous hurt by use of acid, etc. is punishable with not less than ten years but which may extend to imprisonment for life and with fine under section 326A. Sec. 326B deals with voluntarily throwing or attempting to throw acid. These both sections are mentioned above.
Q.10. ‘A’ out of natural love and affection promises to pay his son Rs 10,000. He puts promise in writing and registers it. How far is the contract valid?
[Jharkhand PCS J Mains Examination, 2014]
Ans. The term “natural love and affection” is mentioned in Section 25(1) of Indian Contract Act. The Section provides that an agreement made without consideration is void, unless it is expressed in writing and registered under the law for the time being in force for the registration of documents, and is made on account of natural love and affection between parties standing in a near relation to each other.
The Indian Contract considers a promise made in consideration of natural love and affection void unless the parties stand in near relation to each other. Similarly, a promise between two parties stand in near relation is consider void if there is no love and affection between them. In addition to this, the promise has to be written and registered for it to be valid contract.
In past the judges has interpreted natural love and affection in contradictory ways. Such two contradictory cases are-
Rajlukhy Dabee v. Bhootnath Mookerjee, (1900) 4 Cal WN 488, in this case the defendant promised his wife a certain amount every month as maintenance. The agreement contained in a registered document which mentioned certain quarrels and disagreements between the two. A case was filed to recover the amount promised to be paid as maintenance. However, the judge decided in favour of the defendant as although they were in near relation court held that there was no natural love and affection between them.
Bhiwa v. Shivaram, (1899) 1 Bom LR 495, in this case two brother has quarreled regarding some property. One of them lost upon which the other brother has promised through a written and duly registered agreement that he would give half his property but he later backed out, Court held that inspite of property dispute section 25(1) of the Act applies as the promise was made out of natural love and affection for someone who was a near relative.
However the abovementioned judgments are extremely contradictory, if natural love and affection does not apply in first case, then how it can be applied in second one.
An agreement though made without consideration will be valid if it is in writing and registered and is made on account of natural love and affection between parties standing in a near relation to each other.
An agreement without consideration will be valid provided:
(i) It is expressed in writing;
(ii) It is registered under the law for the time being a force;
(iii) It is made on account of natural love and affection; and
(iv) It is between parties standing in a near relation to each other.
All these essentials must be present to enforce an agreement made without consideration. The presence of only one or some of them will not suffice. Thus, the mere registration of document in the absence of nearness of relationship or natural love and affection will not suffice.
Q.11. What are the rules governing appropriation of payments?
[Kerala Judicial Service NCA (Main) Examination, 2011]
Ans. Appropriation means ‘application’ of payments, Appropriation rules apply only in case of several and distinct debts and do not apply where there is only one debt, though payable by installments. Appropriation is considered a primary right of a debtor. Sections 59 to 61 lay down three rules regarding appropriation of payments which are based on English law.
A Full Bench of the Lahore High Court in Jia Ram v. Sulakhan Mai, A.I.R. 1941 Lahore 386 dealt with the scope of Section 59 to Sections 61 of the Indian Contract Act and held that Sections 59 to 61, Contract Act, embody the general rules as to appropriation of payments in cases where a debtor owes several distinct debts to one person and voluntarily makes payment to him.
They do not deal with cases in which principal and interest are due on a single debt, or where a decree has been passed on such a debt, carrying interest on the sum adjudged to be due on the decree. These sections are based upon the rule of English Law, well settled since Clayton’s case, that where a debtor, owing several distinct debts to one person, makes a payment to him intimating that the payment is to be applied in discharge of particular debt, the creditor, if he accepts the payment, must apply it accordingly.
If, however, the debtor has omitted to intimate and there are no circumstances indicating to which debt the payment is to be applied the creditor may, at his discretion, apply it to any debt actually due and payable to him by the debtor at the time. In case neither party makes the appropriation, the payment is to be applied in discharge of the debts in order of time; and if the debts are of equal standing the payment is made in the discharge of each of them proportionately.
The above judgment of the Lahore High Court is based upon sound principle and has kept in mind the intention of the Legislature in enacting Sections 59 to 61 of the Act as observed by the Supreme Court of India in Industrial Credit v. Smt. Smithaben H. Patel and Others on 10 February, 1999.
Appropriation by Debtor:
Where the debtor owes several debts to creditor, he has right to request to creditor to apply the payment for discharge of some particular debt. If the debtor does not agree to the specific instruction of the debtor, he must refuse to accept the payment. In this regard, section 59 provides as under-
59. Application of payment where debt to be discharged is indicated- Where a debtor, owing several distinct debts to one person, makes a payment to him, either with express intimation, or under circumstances implying that the payment is to be applied to the discharge of some particular debt, the payment, if accepted, must be applied accordingly.
Illustrations:
(a) A owes B, among other debts, 1,000 rupees upon a promissory note which falls due on the’ first June. He owes B no other debt of that amount. On the first June A pays to B 1,000 rupees. The payment is to be applied to the discharge of the promissory note.
(b) A owes to B, among other debts, the sum of 567 rupees. B writes to A and demands payment’ of this sum A sends to B 567 rupees.
This payment is to be applied to the discharge of the debt of which B had demanded payment.
Supreme Court of India in Industrial Credit v. Smt. Smithaben H. Patel and Others on 10 February, 1999 held that a perusal of Section 59 would clearly indicate that it refers to several distinct debts payable by a person and not to the various heads of one debt. The principal and interest due on a single debt or decree passed on such debt carrying subsequent interest cannot be held to be several distinct debts.
Appropriation by Creditor:
If the debtor has not intimated to creditor regarding appropriation of payment made to creditor and the circumstances indicate that it should be appropriated with a particular debt then it must be adjusted with that debt. Sec. 60 is relevant in this regard which is as under-
60. Application of payment where debt to be discharged is not indicated- Where the debtor has omitted to intimate and there are no other circumstances, indicating to which debt the payment is to be applied, the creditor may apply it at his discretion to any lawful debt actually due and payable to him from the debtor, whether its recovery is or is not barred by the law in force for the time being as to the limitation of suits.
Where neither Party Appropriates:
In absence of appropriation by the debtor or the creditor, the payment may be appropriated towards the debts in chronological order including the time-barred debt. In this regard, section 61 is relevant.
61. Application of payment where neither party appropriates- Where neither party makes any appropriation the payment shall be applied in discharge of the debts in order of time, whether they are or are not barred by the law in force for the time being as to the limitation of suits. If the debts are of equal standing, the payment shall be applied in discharge of each proportionately.
Rule in Re Hallett’s Estate case- This is an exception to the provisions contained in section 61. The rule applies where a trustee had mixed up trust funds with his own funds. In such a case, if the trustee misappropriates any money belonging to the trust, the first amount so withdrawn by him would be first debited to his own money and then to the trust funds.
Similarly, any deposits made by him would be first credited to trust fund and then to his own fund, whatever be the order of withdrawal and deposit.
Q.12. Write short note on trespass to land.
[Assam Judicial Service (Grade-III) Written Examination, 2015]
Ans. The trespass to land, unlawful intrusion of an individual to another’s land voluntarily, occurs where a person directly enters upon another’s land without permission, or remains upon the land, or places or projects any object upon the land.
The maxim ‘cui us est solum, eius est usque ad coelum et ad infernos ‘, is relevant on this issue. This rule means: “Whose is the soil, his it is up to the sky’, or in a more simple explanation “He who possesses the land possesses also that which is above it”.
Trespass to land may be committed in the following three ways:
(a) Trespass by Wrongful Entry:
The most common form of trespass is a wrongful personal entry by the defendant on the plaintiff’s land. The slightest crossing of the boundary suffices e.g. putting a hand through a window, or sitting on a fence.
(b) Trespass by Remaining on the Land:
A person who has lawfully entered on the land in the possession of another commits a trespass if he remains there after his right of entry has ceased. Thus, a person who has entered by leave or licence of the occupier will be liable as a trespasser if, after request, he fails to leave the premises.
(c) Trespass by Placing Things on the Land:
It is a trespass to cause any physical object to cross the boundary of the plaintiff’s land, or even to come into physical contact with the plaintiff’s land, even though there may be no crossing of the boundary. For instance, driving a nail into plaintiff’s wall, or throwing a stone upon his land or piling rubbish against plaintiff’s wall would technically amount to a trespass.
Generally, it is civil wrong but it may give rise to criminal proceeding also. The tort of trespass to land is actionable per se without the proof of damage.
The following are the essential elements of tort of trespass to land:
(i) A man is not liable for a trespass committed involuntarily, but he is liable if the entry is intentional, even though made under a mistake, e.g., if, moving his own land one inadvertently allows his blade to cut through into his neighbor’s field, he is guilty of a trespass.
(ii) If a person who has lawfully entered on the land of another, remains there, after his right of entry has ceased, he commits trespass.
(iii) Every interference with the land of another, e. g., throwing stones or materials over neighbour’s lands, is deemed constructive entry and amounts to trespass.
In order to prove that a defendant is liable for trespass to land, the plaintiff has to show that:
(i) The defendant must intend enter the land that is the subject of the trespass. It’s not required that the defendant intended to do so wrongfully. Causing an object or thing to enter someone’s properly can also be considered trespass.
(ii) Entry onto the property must be unauthorized, either expressly or implied. For example, the police and postal carriers has implied consent to be on most residential property, so a trespass cause of action would fail in such cases.
The defences available in case of this tort are licence, necessity, acquiesce or estoppels, right to entry, justified by the law and consent. The available remedies are-damages, injunction, expulsion, self-help.