Are you preparing for Rajasthan Judicial Service (R.J.S.) main examination? Here is your solved paper on civil law and procedure for Rajasthan Judicial Service (R.J.S.) main examination held in 2001!
Q.1. Whether rejection of a plaint comes within the ambit of a decree? Whether after such rejection, the plaintiff can file a new plaint?
Ans. Rejection of a plaint comes with the ambit of a decree. After such rejection, a plaintiff may file a fresh suit. [Section 2(2) read with Order 7 Rule 13]
Q.2. When an objection relating to the jurisdiction of the Court may be raised?
Ans. When the objection was raised—
(i) before the Court of first instance at the earliest possible opportunity;
(ii) at the time of or before the settlement of the issues; and
(iii) there was failure of justice. [Section 21]
Q.3. What is meant by ‘mesne profits’?
Ans. Profits together with interest, which a person in wrongful possession of a certain property actually receives. [Section 2(12)]
Q.4. When a Court should allow amendment of the pleadings?
Ans. (i) When such amendment is necessary for determining the real questions in controversy between the parties; (ii) basic nature of the plaint is not changed; and (iii) amendment is just, not causing damage to opposite party. [Order 6 Rule 17, CPC, 1908]
Q.5. According to the Civil Procedure Code, who is ‘indigent person’?
Note: For the word ‘pauper’, now the word ‘indigent’ has been substituted by the Act of 1976.
Ans. If a person does not possess sufficient means to pay the court-fee; or he is not entitled to property worth Rs. 1,000/- other than the subject matter of suit and the property exempt from attachment in execution of a decree, is called ‘indigent’. [Section 33 Rule 1]
Q.6. Define “set-off”?
Ans. In a suit instituted by plaintiff for recovery of specific sum of money, a counter demand of money by defendant from the plaintiff, is called ‘set-off. [Order 8 Rule 6]
Q.7. Generally a married Hindu woman cannot adopt during the life-time of her husband. But, narrate the circumstances, in which a married Hindu woman can legally take in adoption a son or a daughter?
Ans. If her husband is/has—
(i) dead;
(ii) finally and completely renounced in the world;
(iii) ceased to be a Hindu;
(iv) declared to be of unsound mind by a competent Court; or
(v) her marriage has been dissolved. [Sections 8 and 9, Hindu Adoptions and Maintenance Act, 1956]
Q.8. Under the Hindu Marriage Act, 1955, when a marriage is declared null and void?
Ans. When party/parties to the marriage—
(i) has/have a spouse living at the time of marriage;
(ii) are within the degrees of prohibited relationship; or
(iii) are sapindas of each other. [Sections 11 and 5 (i), (iv) and (v), Hindu Marriage Act, 1955]
Q.9. What do you mean by “Wakf-Alal-Aulad”?
Ans. Such Wakf is for the benefit of personal family, relatives and ‘aulad’ of the Wakif. In fact, it is in favour of unborn descendents also.
Q.10. Whether a Muslim wife is entitled to donate her Mehar?
Ans. Yes, if such donation is made by her own free consent.
Q.11. Which facts need not be proved in a legal proceedings before a competent Court?
Ans. (1) The facts for which the Court will take judicial, need not be proved; and
(2) The facts which have been admitted by the parties themselves or their agents in their pleadings before or during the trial, need not be proved.
Q.12. On whom burden of proof lies in a suit or a legal proceeding?
Ans. Burden of proof will lie on that party, who—
(i) desires any Court to give judgment regarding any legal right or liability; and
(ii) would fail if no evidence were given on either side. [Sections 101 and 102]
Q.13. Under the Arbitration and Conciliation Act, 1996, which of the acts an arbitrator is not bound to follow?
Ans. (i) Civil Procedure Code, 1908; and
(ii) Indian Evidence Act, 1872. [Section 66, Arbitration and Conciliation Act, 1996]
Q.14. Define “continuing guarantee”. When can such guarantee be revoked?
Ans. A guarantee which extends to a series of transactions is called “continuing guarantee”.
It may, at any time, be revoked by the surety, as to future transaction, by (i) notice to the creditor; or (ii) death of the surety. [Sections 129, 130 and 131]
Q.15. What do you understand by “partnership at will”?
Ans. When no provision is made by contract between partners for duration or determination of their partnership, it is “partnership at will”. [Section 7, Indian Partnership Act, 1932]
Part ‘B’
Q.16. What is meant by “interpleader suit”? By whom and under what circumstances such suits can be filed?
Ans. “Interpleader suit” means that in fact there is no dispute between the plaintiff and the defendant, but it is between the defendants inter se, because they plead against each other, whereas the plaintiff claims no interest.
Example:— Ornaments of ‘B’ are lying in deposit with ‘A’. After B’s death, ‘C’ claims those ornaments on the basis of inheritance, whereas, ‘D’ claims on the basis of will, claiming their rights on the ornaments adverse to each other. Then, ‘A’ can file interpleader suit.
The plaintiff should not have any interest in the property; there should not be collusion between the parties; plaintiff is ready to hand over the property to the rightful claimant (defendant), after deducting expenses incurred by him, and considering charge (if any) on the property.
When any previously instituted suit is pending relating to the determination of rights and liabilities of the parties, then no interpleader can be filed. [Section 88 and Order 35]
Q.17. What do you understand by “judgment”? What are its subject-matters and when it is passed?
Ans. “Judgment” means the statement given by the Judge on the grounds of a decree or order. [Section 2(9)]
Subject-matter of judgment:—
(1) Name of the competent Court, e.g., District Court, Bikaner and Name of the Presiding Officer, e.g., Ramesh Kumar Chauhan, R.H.J.S.,
(2) Nature of suit and its No. and year, e.g., Civil Original Case No. 114/2006,
(3) Description of both the parties to the suit,
(4) Heading of the suit, e.g., suit for arrears of rent and eviction of house,
(5) Presence of parties (In person or through advocate),
(6) “Judgment” as a heading and its date,
(7) Brief facts of plaint,
(8) Brief facts of written-statement,
(9) Framing of issues,
(10) Finding on each issue (Appreciation of evidence and grounds of findings),
(11) Final order (With direction relating to decree),
(12) Signature of the Presiding Officer and seal of the Court,
(13) Recital of pronouncing the judgment in open Court, i.e., “Judgment pronounced today, the 12″‘ February, 2008, in open Court” and below it, signature of the Presiding Officer and seal of the Court.
Judgment when Pronounced:
The Court, after the case has been heard, shall pronounce judgment in an open Court, either at once, or as soon thereafter as may be practicable and when the judgment is to be pronounced on some future day, the Court shall fix a day for that purpose, of which due notice shall be given to the parties or their pleaders —
Provided that where the judgment is not pronounced at once, every endeavour shall be made by the Court to pronounce the judgment within thirty days from the date on which the hearing of the case was concluded but, where it is not practicable so to do on the ground of the exceptional and extraordinary circumstances of the case, the Court shall fix a future day for the pronouncement of the judgment, and such day shall not ordinarily be a day beyond sixty days from the date on which the hearing of the case was concluded, and due notice of the day so fixed shall be given to the parties or their pleaders. [Order 20 Rule 1]
Q.18. What do you mean by “Sapinda relationship and how it is determined? Whether the marriage in the Sapinda relationship is valid?
Ans. “Sapinda relationship” with reference to any person extends as far as the third generation (inclusive) in the line of ascent through the mother, and the fifth (inclusive) in the line of ascent through the father, the line being traced upwards in each case from the person concerned who is to be counted as the first generation. [Section 3(f), Hindu Marriage Act, 1955]
A marriage between two Hindus can only be performed when they are not sapindas of each other. [Section 5(v), Hindu Marriage Act, 1955]
If the parties to a marriage can perform the marriage between sapinda relationship according to the custom and usage of their community, it is valid.
Q.19. Who are the natural guardians of the person and property of a Hindu minor? Whether it will make any difference if the minor is illegitimate or minor?
Ans. The natural guardians of a Hindu minor, in respect of the minor’s person as well as in respect of the minor’s property (excluding his or her undivided interest in joint family property), are—
(a) in the case of a boy or an unmarried girl—the father, and after him, the mother, provided that the custody of a minor who has not completed the age of five years shall ordinarily be with the mother;
(b) in the case of an illegitimate boy or an illegitimate unmarried girl—the mother, and after her, the father;
(c) in the case of a married girl—the husband :
Expression “father” and “mother” do not include a step-father and a step-mother. [Section 6, Hindu Minority and Guardianship Act, 1956]
Q.20. Under the Hindu Succession Act, 1956, in case of simultaneous deaths of two persons, what is the presumption for the purpose of succession of the property?
Ans. Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder. [Section 21, Hindu Succession Act, 1956]
Q.21. “To covert a proposal into a promise, it should be accepted in to and unqualified”, whether it is necessary that the acceptance should be expressly communicated? Whether the proposer can accede to an acceptance, which was made by a mode otherwise than a prescribed manner?
Ans. When the person to whom the proposal is made signifies his assent thereto, the proposal is said to be accepted. A proposal, when accepted becomes a promise. [Section 2(b)]
In order to convert a proposal into a promise, the acceptance must be absolute, unqualified, expressed in some usual and reasonable manner, within a reasonable time, without condition and in a prevalent and prescribed manner. [Section 7, Indian Contract Act, 1872]
To comply with the conditions of the proposal also comes within the ambit of an acceptance. [Carlill vs. Carbolic Smoke Ball Co., 1833)]
Acceptance may be written, oral, in any manner, or by any act. Acceptance need not always be express. Its conclusion may also be drawn from the conduct and external acts of the parties.
Q.22. What do you understand by “partnership by holding out”? What is the liability of such partner? Whether the fact of partnership by holding out must reach to the creditor, who had advanced a loan to the partnership firm?
Ans. Anyone who by words spoken or written or by conduct represents himself or knowingly permits himself to be represented, to be a partner in a firm, is liable as a partner in that firm to anyone who has on the faith of any such representation given credit to the firm, whether the person representing himself or represented to be a partner does or does not know that the representation has reached the person so giving credit. [Section 28, Indian Partnership Act, 1932]
If on the faith of such holding out, a third party advances any loan to the partnership firm, then, together with the other partners, the partner by holding out is also liable for payment of loan.
Q.23. What is the object of Iddat after dissolution of marriage of a Muslim Woman? What is the difference between Sunni and Shia law relating to the rules of marriage during the period of Iddat?
Ans. Objects of Iddat are to ascertain whether the Muslim divorced or widow woman is pregnant or not; and to get rid from any doubt regarding paternity of the child born after dissolution of the marriage.
According to Justice Mahmood, Iddat is such period, whose completion makes the new marriage valid.
Under Shia Law, if during the period of Iddat, sexual intercourse is knowingly done, it creates perpetual prohibition for the marriage between the parties.
Whereas, under Sunni Law, there will be no such perpetual prohibition for marriage between the parties.
Q.24. Whether improper admission or rejection of evidence can be ground for a new trial?
Ans. The improper admission or rejection of evidence or any irregularity therein shall not be a ground of itself for a new trial or reversal of any decision, until and unless there is failure of justice. [Section 167]
Q.25. A car is property of ‘C’ and its price is Rs.70,000/-. ‘A’ promises to transfer this property to ‘B’ by gift and by an instrument of gift gives Rs.1,00,000/- to ‘C’. ‘C’ elects to retain this car with him. Determine the rights of the parties.
Ans. ‘C’ forfeits the gift of Rs.1,00,000/- i.e., in consequence of refusal to transfer the property, ‘C’ will be deprived to get Rs.1,00,000/-. The disappointed transferee ‘B’ will not receive any benefit.
If in that case, ‘A’ dies before election, his representative will pay Rs.70,000/-, out of Rs.1,00,000/-to ‘B’ [Section 35]
Part ‘C’
Q.26. (a) What description should be given in a plaint?
(b) Make a draft of a (i) plaint; and (ii) written statement for malicious prosecution.
Ans. (a) Description of a plaint.—
(1) Name of the competent Court;
(2) nature, number and year of the suit;
(3) description of both the parties to the suit;
(4) heading of the plaint, e.g., suit for eviction and arrears of rent;
(5) para-wise pleadings of the suit
(6) mention of the fact of a party being minor or insane (if necessary);
(7) mention of amount relating to relinquishment, if any;
(8) cause of action;
(9) jurisdiction of Court-both territorial and pecuniary;
(10) limitation;
(11) valuation of suit and Court-fee paid thereon;
(12) relief sought;
(13) verification;
(14) signatures of the parties and their Advocates; and
(15) place and date.
Q.27. (a) On the basis of pleadings of malicious prosecution, frame the issues.
(b) Draft a judgment relating to malicious prosecution on the basis of facts enumerated in questionnaire 26(b) and the issues framed in questionnaire 27(a).
Ans. Issues:—
(1) Whether the defendant lodged a false first information report relating to theft against the plaintiff? (Plaintiff)
(2) Whether the defendant lodged the report relating to theft without reasonable and probable cause and with malice, against the plaintiff in order to disgrace him? (Plaintiff)
(3) Whether the plaintiff was discharged/acquitted in the criminal case, giving him benefit of doubt? If yes, what is its legal effect? (Plaintiff)
(4) Whether the plaintiff is entitled to get Rs.5,000/- as special damages and Rs.30,000/- as general damages from the defendant? (Plaintiff)
(5) Relief.
Q.28. (a) What do you understand by set-off and counter-claim and what is difference between them?
(b) Narrate the properties which are not liable to attachment and sale in execution of a decree.
Ans. (a) Set-Off:
In an ascertained money suit filed by plaintiff, counter demand of ascertained money by defendant from plaintiff, is called “set-off’. [Order 8 Rule 6, Civil Procedure Code, 1908]
Counter-Claim:
Where the defendant puts such a claim against the plaintiff, for which he can file a separate suit, then the defendant in that suit can use it in his defence against the plaintiff. [Order 8, Rules 6-A to 6-F, Civil Procedure Code, 1908]
Difference between set-off and counter-claim:
Set-Off:
1. Its nature is like shield.
2. Period of limitation is reckoned from the date of institution of the suit.
3. The demands of the plaintiff and the defendant (both) may or may not accrue in the single transaction. [Order 8 Rule 6, C.P.C., 1908]
Counter-Claim:
1. Its nature is like sword.
2. Period of limitation is reckoned from the date on which cause of action accrued in favour of the defendant and against the plaintiff.
3. It is not necessary that the demand should accrue in the single transaction. [Order 8 Rule 6-A, B and C]
Ans. (b) The properties not liable to attachment and sale in execution of decree:
i. Necessary wearing apparel, cooking vessels, beds and bedding of the judgment- debtor, his wife and children and such personal ornaments as, in accordance with religious usage, cannot be parted with by any woman;
ii. tools of artisans, and where the judgment-debtor is an agriculturist, his implements of husbandry, cattle and seed-grain;
iii. account books;
iv. mere right to sue for damages,
v. right of personal service;
vi. stipends, gratuities and political pensions etc.;
vii. amount of maintenance, and
viii. wages of labourers and domestic servants. [Section 60 (1), Civil Procedure Code, 1908]
Q.29. What is meant by “burden of proof’? When burden of proof can be shifted from one party to another?
Ans. There is a legal liability to prove certain fact in the Court, which is known as burden of proof. Burden to establish a certain fact or matter is also called the burden of proof. [Section 101]
In civil cases, ordinarily and fundamentally the burden of proof is on the plaintiff, whereas in criminal matters, the burden of proof lies on the prosecution.
But, in the following circumstances, the burden of proof shifts from one party to the other party:
(1) The burden of proof as to any ‘particular fact’ or fact especially within knowledge lies on that person who wishes the Court to believe in its existence. [Sections 103 and 106]
(2) When an accused person asserts that his case falls within any of the ‘general exceptions or special exceptions’, then burden to prove this fact shifts from the prosecution to the accused. [Section 105]
(3) When there is a ‘presumption of a fact’ is in favour of a certain party, then the burden of proof shifts on the other party.
(4) When a party to a suit admits a certain fact and the other party proves such ‘admission’, then the burden of proof shifts on the party who made the admission if he pleads that he did not make the admission.
(5) If the ‘accused rebuts the presumptions’ provided under Sections 113-A and 113- B, Evidence Act, (offences relating to dowry deaths); and Section 114-A, Evidence Act (Sexual intercourse without the consent of prosecutrix in case of rape), then the burden of proof shifts from the prosecution to the accused.
Q.30. “Old parents, virtuous wife and minor children should be maintained even by doing hundreds of evil acts”. Explain this statement in the light of the Hindu Adoptions and Maintenance Act, 1956.
Ans. According to Manusanhita, old parents, virteous wife and minor children should be maintained even by doing hundreds evil acts.
While corroborating the above quotation, according to Mitakshara also, a person should maintain his old parents, wife and minor children, otherwise he will go in hell.
Thus, much importance has been given to the system of maintenance in Hindu Law. Each member of the joint Hindu family has been conferred with such right. Liability of maintenance is not only personal, but on acquiring the property of the deceased, the person becomes liable to maintain the dependents of the deceased.
Under the present Hindu Law also, to maintain the old parents, wife, minor children and other dependents, has been considered to be a legal liability.
According to the old Hindu Law, to give maintenance has been considered not only a legal liability but a moral duty also. But, after coming into force of the Hindu Adoptions and Maintenance Act, 1956, now the ‘maintenance’ has only legal importance and no relief can be granted by the Courts relating to moral liabilities.
Under the aforesaid Act, a Hindu is legally bound to maintain his/her legitimate or illegitimate minor children, unmarried daughter and aged or infirm parents unable to maintain his/herself, wife and other dependents, e.g., illegitimate minor son, unmarried illegitimate daughter and relatives of the deceased, from whom he has received the property, and daughter-in-law.
Under certain circumstances, a Hindu wife is entitled to get maintenance and also separate residence from her husband. [Sections 18 to 28, Hindu Adoptions and Maintenance Act, 1956]
Q.31. (a) What are the implied conditions of a contract relating to sale of goods?
(b) Describe the law relating to sale of goods by description or by sample.
Ans. (A) Implied conditions of contract for sale of goods:
(1) Seller has a right to sell goods and he will have such right at the time when the property is to pass.
(2) The goods shall correspond with the description and/or sample.
(3) Implied conditions as to quality and fitness are that where the buyer makes known to the seller the particular purpose of the goods, so as to show that the buyer relies on the seller’s skill or judgment, then the goods shall be reasonably fit for such purpose. [Sections 14, 15 and 16]
(B) Law relating to sale of goods by description or sample:
(1) ‘sale by description’ is such a contract, wherein there is an implied condition that the goods delivered or to be delivered shall correspond with the description.
(2) If there is a contract to sell and purchase the goods according to description and sample, then it is essential that the goods should correspond with the description and the sample both. [Section 15]
(3) In case of a contract for sale of goods by sample, there is an implied condition that (a) the bulk shall correspond with the sample in quality; (b) the buyer shall have a reasonable opportunity of comparing bulk with the sample; and (c) the goods shall be free from any defect; rendering them un-merchantable, which would not be apparent on reasonable examination of the sample. [Section 17]
Q.32. Under the Limitation Act, on what grounds a suit may be instituted after the period of limitation?
Ans. (1) If the appellant or the applicant satisfies the Court that he had sufficient cause for not filing the appeal or the application within such period.
For example: Sickness, imprisonment, sudden death of parents, husband, wife or brother, negligence of Advocate or delay due instrumentality of the Government. (Section 5, Limitation Act, 1963)
(2) Where the prescribed period for any suit (including appeal or application) expires on a day when the Court is closed, the suit etc. may be instituted on the date when the Court re-opens. [Section 4, Limitation Act, 1963]
(3) Where the plaintiff, at the time from which the prescribed period is to be reckoned, is a minor, insane or idiot, then he may institute the suit within the same period after the disability has ceased. [Section 6, Limitation Act, 1963]
(4) Where letters of administration to the estate of a creditor have been granted to his debtor, the running of the period of limitation for a suit to recover the debt shall be suspended while the administration continues.
(5) In computing the period of limitation for any suit, appeal or application —
(i) the day from which such period is to be reckoned, shall be excluded.
(ii) the time required for obtaining copies of judgment, order, decree or sentence.
(6) Exclusion of time in cases where leave to sue or appeal as a pauper is applied for.
(7) Exclusion of time of proceeding bona fide in Court without jurisdiction.
(8) Time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.
(9) In computing the period of limitation for any suit of which (i) notice has been given; or (ii) for which previous legal consent or sanction of the Government is required, the period of such notice or the time required for obtaining such consent or sanction shall be excluded.
(10) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.
(11) Time during which the defendant has been absent from India is to be excluded.
(12) Death of the person on or before the accrual of the right to sue.
(13) Effect of fraud or mistake.
(14) Effect of acknowledgement in writing. [Sections 9 to 18, Limitation Act, 1963]