Civil Suit

 Vande Matram! Moot Court is a practical subject of Law. Many a times you have to perform Court Proceedings in your practical exams. For that many problems are given to you from your college and you have to represent your case either from side of plaintiff / applicant or from side of defendant / non-applicant. The moot court practical gives you experience of actual court proceedings.

Also you have to appear for a viva-voce for the subject. In viva-voce the examiner may ask you about the cases you have observed during your training with a law firm and some questions about the general things may be asked. Here are some short questions and answers which may be asked apart from problems of moot court you have solved or cases you have observed during your training with a law firm.

Q1) What is a civil case?

Ans. A civil case is a legal dispute between two or more parties.

Q2) When the process of a civil suit starts?

Ans. The process starts when someone files a lawsuit (plaintiff) against a single person or group of people (defendant).

Q3)  What is the purpose of a civil suit?

Ans. The purpose of a lawsuit is usually to win compensation for damages, injuries or money that is lost as the result of an action taken by the defendant.

Q4) Enlist the types of civil suits?

Ans. The types of civil suits are A) Tort claims (injuries), B) Breach of contract claims, C) Equitable claims, D) Class action claims, E) Complaints against the government, etc.

Q5) What is meant by the complaint against the government?

Ans. If civil rights of a person are violated by the actions, orders of the government then he can approach to the Court for compensation for such violation of his /her civil rights, such a complaint against the orders or actions of the government is called as the complaint against the government, e.g. reservation of a land having private ownership for public purpose under the Maharashtra Regional Town Planning Act, 1966 and non acquisition of such land within 10 years from publication of Development plan of the city.

Q6) What is meant by class action suit?

Ans. Class action suit is similar to tort case, except the “plaintiff” is actually a group or class of people. The “defendant” is often a corporation that is accused of negligence or intentional acts that caused many injuries, e.g. a company that exposes people to hazardous substances and claim for damages by such people is class action suit.

Q7) Explain equitable claims.

Ans. With equitable claims, the plaintiff asks the court to order a company or individual to refrain from doing something, which is known as an injunction. This type of case is not about a monetary reward for a past injury but is done to prevent a future harmful act. Equitable claims might ask the court to stop a developer from building a commercial plaza in a residential area, or ask a beef seller to shift his shop from residential area of pure vegetarians to the residential area of non-vegetarian people, etc.

Q8) Explain breach of contract claims

Ans. This type of civil claim involves a dispute over a contract. Contract disputes can involve multiple businesses or individuals. Any partnership or client relationship relies on a contract to ensure both parties do what has been promised. When one party breaks the agreement, for any reason, a lawsuit is often the result, e.g. non-execution of sale deed of an immovable property as per the conditions of agreement to sale.

Q9) Explain tort claims.

Ans. Tort claims might be filed against a business or an individual and involves accusations of alleged negligence. In this case, the plaintiff asks for punitive damages to compensate for medical bills, lost time at work or money spent replacing damaged property, e.g. fraud, defamation, emotional distress, invasion of privacy, etc.

 

Reference:

5 BASIC TYPES OF CIVIL CASES

 

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Discuss the essential components of the valid transfer of property.

Vande Matram! Welcome to the series of Transfer of Property Law. Since the civilisation of humans, the concept of property is present and the laws related to it are evolving day by day.

In previous blog, we discussed about the mode and the test regarding transfer of property. Let’s discuss about the essential components of the valid transfer of property.

Discuss the essential components of the valid transfer of property.

The transfer of property Act, 1882 provides for the transfers, relating to immovable property and it also lays down the principles relating to the transfer of property regarding what constitutes a transfer and the conditions attached to it. It was observed by the Supreme Court that in general, the transfer of property means passing of entire bundle of rights i.e. ownership from the transferor to transferee or there may be the transfer of only some of the rights i.e. partial interest.

According to the Act, “transfer of property” is defined as an act in which a person conveys the property to one or more living persons or himself and one or more other persons. The transfer may be done in the present or for the future and the term “living person” includes companies, body corporate, an association of persons whether incorporated in India or not. The property transferred can be of any type either movable or immovable. The definition is provided in detail in Section 5 of the Act.

Essentials of a valid transfer of property:

To constitute a valid transfer it has to fulfill the following conditions:

1) Transfer must be between two living persons:

Both the transferor and transferee must be living at the date of transfer. The property has to be conveyed from one living person to another. If the new title or interest is not created in favor of the transferee then the property is not conveyed and is not regarded as a transfer of property.

In case of Harish Chandra v. Chandrashekhar, 1977, it was held by the court that a release deed is a conveyance and hence it is a transfer of property.

2) The property must be transferable:

Section 6 of the Transfer of the Property Act, 1882 provides for the exceptional types of property whose transfer is forbidden by the law. These properties include Spes succcessionis i.e. a chance of succession, Right to re-entry, Easement, Restricted interest, Maintenance, Mere right to sue, Public office, Pensions, etc.

In R. Rajegowda v. H. R. Shankar Gowda (2006), it was held that a person having life interest in property cannot bequeath it by executing a will.

In Sundariya Bai Chaudhary v. Union of India, 2008 the court held that the family pension of the deceased was not in the nature of an estate and it was not transferable so it could not be bequeathed by a will. The court observed that other benefits like provident fund, gratuity, and extra remunerations would be included in the category of an estate.

3) The transfer should not oppose to nature of interest:

There are certain things which are known as “res communes”, these things are in their natural form and they do not belong to anyone, like, air, water, sea, light, etc., it is not possible to hold and possess these things separately so if anyone tries to transfer such a thing it would be opposed to its nature.

4) The consideration or the object must be lawful:

To be a valid transfer the consideration and the object must be lawful. As per Section 23 of the Contract Act the consideration or the object is unlawful if It is forbidden by law

a) if it defeats the provisions of any law,

b) if the object or consideration of any agreement is made for fraudulent purposes.

c) If the agreement is made concerning harm to any person or his property.

d) If the agreement which has been entered into is immoral.

e) If the agreement is against public policy.

5) Persons competent to transfer:

Section 7 of the TP Act, provides that if the person is competent to contract then that person is competent to transfer the property either wholly or in part, and either absolutely or conditionally, in the manner which has been permitted by law. Such competency for transfer of property is provided in the Section 11 of the Contract Act.

In case of Mallikarjun v. Mareppa 2008, a person brought a property in the name of his minor son and later sold it again while the son was still a minor. Court’s permission under Section 8 of the Hindu Minority and Guardianship Act 1956 was necessary in this case but was not taken. The provision was mandatory so the sale was held to be void.

Sadiq Ali Khan v. Jaikishore 1928– In this case the Privy Council observed that a deed executed by a minor was null and void. Principle of estoppel cannot be applied to a minor. A minor is not competent to transfer but transfer made to a minor is valid and legal.

Amina Bibi v. Syed Yousuf, 1922- The Allahabad High Court held that a contract made by a lunatic is void under section 11 of the Indian Contract Act. The transfer of his own property by him is also void.

K. Kamama v. Appana- In this case it was held that under section 11 of Hindu Minority and Guardianship Act, a de facto guardian is merely a manager and cannot dispose of the property of a minor. Such sale would be invalid.

Chittu Singh v. Chatan Singh, 1923- It was held that a person who has no right at all to have possession has no right to make any valid transfer. The power of such person cannot exceed the power of the person who has appointed him.

6) The transfer must be made in the manner and the form required by the Act:

Section 9 of the Transfer of Property Act states that the transfer of property can be carried out without a written instrument where writing is not expressly necessary under the law. Sale deed, Mortgage, Transfer of actionable claim, Exchange, relinquishment, gift deed, etc. involving immovable property of valuation, not less than Rs. 100 must be registered.

Conclusion:

If above stated essential requirements are not fulfilled then the transfer will not be considered a valid one or it can be declared void.

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List of references:

Essentials of a valid transfer – Transfer of Property Act, 1882

Essentials of a Valid Transfer Under Transfer of Property Act

Contribution Between Judgement-Debtors

Code of Civil Procedure

Liability under a decree: 

Persons liable jointly and severally under a decree are in the same position as joint promisors.

All the liable persons will bound a contribution to the extent of their respective shares towards the discharge of the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively then A have to contribute 20% towards discharge of the decree and B have to contribute 80% for the same.

A co-debtor may not be liable to contribute if he shows that the other co-debtor had an amount of joint money sufficient to discharge the decree. e.g. If A and B are the persons liable jointly and their share is 20% and 80% respectively. If A proves that B is having joint money which is sufficient to discharge the decree then A may not be liable to contribute towards discharge of decree.

A decree-holder can recover his decretal debt from one or more or any of the judgment-debtors and the latter can compel contribution from the other judgment debtors, who have not been compelled to pay. e.g. D is a decree-holder who can recover his decretal debt from A, B and C who are the judgement debtors. If D recovers all of his decretal debt from A then A can compel the contribution from B and C.

In the absence of a contract to the contrary, the liability to contribute is not affected by the release of any judgment-debtor by the decree-holder.

Vayangara Vadaka Vittil Manja v Pariyangot Padingara Kurupath Kadugochen

The question as to whether there is any right of contribution as between persons against whom a joint decree has been passed depends upon the question whether the defendants, in the former suit were wrong-doers in the sense that they knew or ought to have known that they were doing an illegal or wrongful act. In that case, no suit for contribution will lie. If an act is manifestly unlawful, or the doer of it knows it to be unlawful as constituting either a civil wrong or a criminal offense, he cannot maintain an action for contribution or indemnity to him for the commission of such act is also void. Thus, where a decree for costs against two defendants jointly was executed against one of them, who had set up a false defense in the suit in collusion with the other, and the former sue the latter for contribution. It was held that the suit would not lie.

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Further reading:

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Reference:

1) Ipleaders

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Subodh Kumar Gupta v. Shrikant Gupta & Ors.

 

(a) In Subodh Kumar Gupta v. Shrikant Gupta & Ors., (1993) 4 SCC 1, the Supreme Court considered a case wherein a partnership firm having its registered office at Bombay and factory at Mandsore. Two partners - defendants were residing at Mandsore while the third partner-plaintiff shifted to Chandigarh and an agreement had been drawn up between the partners at Bhilai for dissolution of the firm and distribution of assets. The suit was filed by the plaintiff in the Court at Chandigarh for dissolution of the firm and rendition of account on the ground that the defendants at Mandsore misappropriated partnership’s fund and the aforesaid agreement was void and liable to be ignored. The Court held that in view of the provisions of Section 20 of CPC, suit can be entertained in a place where cause of action had arisen fully or partly. The mere bald allegation by the plaintiff for the purpose of creating jurisdiction would not be enough to confer jurisdiction or allege that the agreement was void would not be enough unless the agreement was set-aside by the competent court. The court must find out by examining the provisions carefully, as to whether the suit can be entertained by it. Generally, cause of action would arise at the place where the defendant resides, actually and voluntarily, or carries on business or personally works for gain or the cause of action arises wholly or in part.

Oil & Natural Gas Commission v. Utpal Kumar Basu & Ors

 

In Oil & Natural Gas Commission v. Utpal Kumar Basu & Ors., (1994) 4 SCC 711, the Supreme Court considered the provisions of Clause (2) of Article 226 of the Constitution of India, which provides for territorial jurisdiction of the High Courts. The Apex Court held that while deciding the territorial jurisdiction of the Court, within which the cause of action, wholly or partly, arises, the facts must first be decided. It must also be ascertained which facts are true and the other facts must be disregarded, because the facts form integral part of the cause of action. In the said case, facts involved were that ONGC decided to set-up a Kerosene Processing Unit at Hajaria (Gujarat). EIL was appointed by the ONGC as its consultant and in that capacity, EIL issued advertisement from New Delhi calling for tenders and this advertisement was printed and published in all leading news papers in the country including The Times of India in circulation in West Bengal. In response to which tenders or bids were forwarded to EIL at New Delhi, which were scrutinized and finalized by the ONGC at New Delhi. However, the writ petition had been filed in the Calcutta High Court challenging the acceptance of tenders of the other party. Before the Supreme Court, it was contended that the Calcutta High Court had no jurisdiction as no cause of action had arisen, even partly, in its territorial jurisdiction. Mere communication to any person at a particular place or publication or reading of the news or notice etc. does not confer jurisdiction. After examining the facts of that case, the Apex Court came to the conclusion that the Calcutta High Court lacked jurisdiction. While deciding the said case, the Supreme Court placed reliance upon the judgment in Chand Koer V. Partab Singh, 15 Ind. Appeals 156, wherein it had been observed as under:-

“The cause of action has no relation whatsoever to the defence which may be set up by the defendant, nor does it depend upon the character of the relief prayed for by the plaintiff. It refers entirely to the grounds set-forth in the plaint as the cause of action; in other words, to the media upon which the plaintiff asked the court to arrive at a conclusion in his favour.”

Therefore, in determining the objection of lack of territorial jurisdiction, the court must take all the facts pleaded in support of the cause of action into consideration albeit without embargo upon an inquiry as to the correctness or otherwise of the said facts.

Section 23 of Indian Contract Act, 1872

Section 23 of Indian Contract Act 1872 deals with lawful objects and consideration and the said Section is reproduced below for ready reference.


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Statutory provision:

23. What considerations and objects are lawful and what not.-

The consideration or object of an agreement is lawful, unless-

-it is forbidden by law; or

-is of such nature that, if permitted, it would defeat the provisions of any law; or

-is fraudulent; or

-involves or implies injury to the person or property of another or;

-the Court regards it as immoral, or opposed to public policy.

In each of these cases, the consideration or object of an agreement is said to be unlawful. Every agreement of which the object or consideration is unlawful is void.

Illustrations

(a) A agrees to sell his house to B for 10,000 rupees. Here B's promise to pay the sum of 10,000 rupees is the consideration for A's promise to sell the house, and A's promise to sell the house is the consideration for B's promise to pay the 10,000 rupees. These are lawful considerations.

(b) A promises to pay B 1,000 rupees at the end of six months, if C, who owes that sum to B, fails to pay it. B promises to grant time to C accordingly. Here the promise- of each party is the consideration for the promise of the other party and they are lawful considerations.

(c) A promises, for a certain sum paid to him by B, to make good to B the value of his ship if it is wrecked on a certain voyage. Here A's promise is the consideration for B's payment and B's payment is the consideration for A's promise and these are lawful considerations.

(d) A promises to maintain B's child and B promises to pay A 1,000 rupees yearly for the purpose. Here the promise of each party is the consideration for the promise of the' other party. They are lawful considerations.

(e) A, B and C enter into an agreement for the division among them of gains acquired, or- to be acquired, by them by fraud. The agreement is void, as its object is unlawful.

(f) A promises to obtain for B an employment in the public service, and B promises to pay 1,000 rupees to A. The agreement is void, as the consideration for it is unlawful.

(g) A, being agent for a landed proprietor, agrees for money, without the knowledge of his principal, to obtain for B a lease of land belonging to his principal. The agreement between A and B is void, as it implies a fraud by concealment, by A, on his principal.

(h) A promises B to drop a prosecution which he has instituted against B for robbery, and B promises to restore the value of the things taken. The agreement is void, as its object is unlawful.

(i) A's estate is sold for arrears of revenue under the provisions of an Act of the Legislature, by which the defaulter is prohibited from purchasing, the estate. B, upon an understanding with A, becomes the purchaser, and agrees to convey the estate to A upon receiving from him the price which B has paid. The agreement is void, as it renders the transaction, in effect a purchase by the defaulter, and would so defeat the object of the law.

(j) A, who is B's mukhtar, promises to exercise his influence, as such, with B in favour of C, and C promises to pay 1,000 rupees to A. The agreement is void, because it is immoral.

(k) A agrees to let her daughter to hire to B for concubinage. The agreement is void, because it is immoral, though the letting may not be punishable under the Indian Penal Code.

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