Monthly Archives: September 2018

What is difference between FIR and complaint?

Key Difference: FIR is a First Information Report. It is related only to cognizable (criminal) offences. On the other hand, police complaint can be cognizable or non-cognizable offences.

FIR and Police complaint are two different terms with different meanings. Though they are related to complaints, they have different offenses and complaints where FIR and police complaints are registered accordingly.

[FIR] FIR is a First Information Report, a complainant who is aware of the offense, as an eye witness and as hearsay account, lodges an FIR. It is information given to the Police Officer. FIR is a very serious registration that one can make. It should not be gossip and that should be traceble, and after the complete investigation the source takes the responsibility. An irresponsible rumor should not result in the registration of a FIR. It is mandatory to give a copy of the first information report (as recorded by police) to the complainant or the informant free of cost.

A cognizable case means a case in which a police officer may arrest without warrant, in accordance with the First Schedule of Cr.P.C. (1973), or under any other law for the time being in force. Whereas, non-cognizable offence means in which a police officer has no authority to arrest without warrant.

Legally, a case may not be registered as there is always a doubt about its authenticity and if it does not satisfy the tests of Section 154 Criminal Procedure Code being not ‘an oral statement

clear and reduce in writing’, it will be considered as a wrong or fake statement.

On the contrary, a Police Complaint can be a cognizable or non-cognizable offences complaint. Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the code of criminal procedure (1973), that some person (whether known or unknown), has committed an offence. It can be related to a robbery, accident, murder, etc. Thus, it is quiet possible that a police complaint can also be converted into FIR, if the investigation proves to be a serious matter.

Who can make a complaint? Anyone can make a complaint. If you have,

Experienced inappropriate behavior from a police officer or member of police staff. Witnessed an incident – for example, you were present when an incident took place.

A person can complain anytime he wants. There is no limit on making a complaint, but it is best to do it as quickly as possible after the incident. Under the Indian Penal Code, it is said that if more than 12 months have passed between the incident and the date when the complaint is made, then the appropriate authority may not register it. There should be a valid reason for not making a complaint. However, it does not guarantee that the complaint will be investigated.

Thus, one needs to be very clear about the two terms, FIR and Police complaint, that for what reason and on which basis they both can be used.

——————-
An FIR is formal registration of a cognizable offence(in cognizable offences police can arrest without any warrant), in writing, either by a victim, an eyewitness, police itself with or without a police informer(called Mukhbir or paid police informer without mentioning his name) or even by the accused himself if he confesses his offence. It is usually done by the concerned police station in whose jurisdiction the offence was committed but can be done at other places in different circumstances and then transferred back to the concerned police station. It bears a unique number.

A criminal complaint is technically a complaint before a judicial magistrate, in writing, regarding a non cognizable offence for which an FIR can not be written technically. For example, criminal defamation u/s 499 IPC. A criminal complaint is the correct procedure. Only court has power to take cognizance and issue arrest warrants, if needed.

An informal information to police is neither FIR, nor a complaint in strict legal sense. It is tenable in a court of law only if it is reduced to be an FIR. ———————– FIR is a First Information Report. It relates only to cognizable (criminal) offences. On the other hand, police complaint can be cognizable or non-cognizable offences.

FIR and Police complaint are two different terms with different meanings. Though they are related to complaints, they have different offenses and complaints where FIR and police complaints are registered accordingly.

FIR is a First Information Report, a complainant who is aware of the offense, as an eye witness and as hearsay account, lodges an FIR. It is information given to the Police Officer. FIR is a very serious registration that one can make. It should not be gossip and that should be traceble, and after the complete investigation the source takes the responsibility. An irresponsible rumor should not result in the registration of a FIR. It is mandatory to give a copy of the first information report (as recorded by police) to the complainant or the informant free of cost.

A cognizable case means a case in which a police officer may arrest without warrant, in accordance with the First Schedule of Cr.P.C. (1973), or under any other law for the time being in force. Whereas, non-cognizable offence means in which a police officer has no authority to arrest without warrant.

On the contrary, a Police Complaint can be a cognizable or non-cognizable offences complaint. Complaint means any allegation made orally or in writing to a Magistrate, with a view to his taking action under the code of criminal procedure (1973), that some person (whether known or unknown), has committed an offence. It can be related to a robbery, accident, murder, etc. Thus, it is quite possible that a police complaint can also be converted into FIR, if the investigation proves to be a serious matter.
————————————— The first information is different from a complaint, and the following are the points of distinction between two:

1. A complaint is an allegation made orally or in writing to a Magistrate. The first information is given in writing or orally to a Police Officer.

2. The Magistrate can take cognizance of an offence on a complaint, but not on a first information. 3. Any person can give the first information, but a complaint can be given only by a person authorised under law under certain circumstances.

It is only when a valid complaint is given that the Court can take cognizance of it. The first information, on the other hand, only empowers the Police Officer to start investigation in cases of cognizable offences.


What is a Bailable and Non-Bailable offence?

An offence can be classified as a Bailable or a Non-Bailable offence. In general, a bailable offence is an offence of relatively less severity and for which the accused has a right to be released on bail. While a non-bailable offence is a serious offence and for it, the accused cannot demand to be released on bail as a right. More specifically, Section 2(a) defines Bailable Offence as well as Non-Bailable Offence as follows –

Section 2 (a) – Bailable offence” means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law for the time being in force: and “nonbailable offence” means any other offence.

Interesting thing is that the definition itself does not refer to seriousness of the offence. It simply makes those offences as bailable which are listed as so in the First Schedule of Cr P C. These offences include offences such as obstructing a public servant from discharging his duties, bribing an election official, and providing false evidence. Non-bailable offences include offences such as murder, threatening a person to give false evidence, and failure by a person released on bail or bond to appeal before court. However, a quick look at the list of bailable and non-bailable offences shows that bailable offences are of relatively less severity.

indictment of the charges based on the same facts or that are a part of a series of offenses of the same nature. Section 218 states that for all the offences committed by the accused should be tried separately
Separate charges for distinct offences:

Sections 218 to 224 deal with joinder of charges and they must be read together and not in isolation. They all deal with the same subject-matter and set out different aspects of it. When they are read together as a whole, it becomes clear that Sections 221 and 222 cover every type of case in which a conviction can be sustained when there is no charge for that offence provided there is a charge to begin with.

Section 218 lays down two fundamental rules regarding framing of charges. First, there should be a separate charge for each distinct offence, and second, there should be a separate trial for each such charge except in four cases mentioned in sub-section (2), namely, which are covered under Sections 219, 220, 221 and 223 of the Code. Excepting the cases falling under any of these four sections, any joinder of charges in the same trial will be wholly illegal and it will vitiate the trial.

The object of Section 218 is to save the accused from being perturbed in his defence if several charges which are in no way connected with one another, are lumped together in one trial. That apart the mind of the Court is also likely to be prejudiced against the accused if he were tried in one trial upon different charges resting on different evidence.


laws that protect women and their rights

Crimes against women occur every minute in India. Women are not safe, whether it is in their houses, public places or at the workplace. Your safety in your hands sounds like a clichéd adage to repeat. Given the number of crimes that are committed against women, it is pertinent that women are aware about the laws that are in place to protect them.

Remember knowledge is power. As a parent, wife, daughter, employee and a woman these are rights set in place to protect you and it is important that you are aware about these.

Here are 10 laws that women should know:

The Prohibition of Child Marriage Act, 2006

According to the International Research Centre for Women, almost 47 percent of girls are married before the age of 18. Currently, India ranks 13 in the world when it comes to child marriages. Since child marriage has been steeped into the Indian culture and tradition since centuries, it has been tough eliminating it.

The Prohibition of Child Marriage Act was made effective in 2007. This act defines child marriage as a marriage where the groom or the bride are underage, that is, the bride is under 18 years of age or the boy is younger than 21 years.

Parents trying to marry underage girls are subject to action under this law. Since the law makes these marriages illegal, it acts as a major deterrent.

Special Marriage Act, 1954

The objectives of this act is to provide – a special form of marriage in certain cases, provide for registration of certain marriages and, to provide for divorce. In a country like India and with the diverse religions and cast, when people from different faiths and caste chose to get married they do it under the Special Marriage Act.

It is not applicable to the state of Jammu and Kashmir and also extends to intending spouses who are Indian nationals and living abroad.

Dowry Prohibition Act, 1961

According to this act, taking or giving of dowry at the time of the marriage to the bride or the bridegroom and their family is to be penalised. Dowry system, giving and taking of dowry, is a norm in India. Dowry is often asked of the bride and her family by the groom and his family. The system has taken strong roots because women after marriage move in with their spouse and in-laws. Also, over the centuries, the lack for economic independence of women and the taboo towards divorce has resulted in bride burning. When demands for dowry even after marriage are not met by the girl’s families, many women are tortured, beaten and even burnt.

It is one of the major challenges that our society is grappling with. Women openly complaining about it has helped to spread the word and encourage other women to take a stand.

Indian Divorce Act, 1969

The Indian Divorce Act allows the dissolution of marriage, mutual consent, nullity of marriage, judicial separation and restitution of conjugal rights.

Family Courts are established to file, hear, and dispose of such cases.

Maternity Benefit Act,1861

This act regulates the employment of women and maternity benefits mandated by law. It states that a woman employee who has worked in an organisation for a period of at least 80 days during the 12 months preceding the date of her expected delivery is entitled to receive maternity benefits, which includes maternity leave, nursing breaks, medical allowance, etc.

Medical Termination of Pregnancy Act,1971

The Act came into effect into 1972, was amended in 1975 and 2002. The aim of the Act is to reduce the occurrence of illegal abortion and consequent maternal mortality and morbidity.

It clearly states the conditions under which a pregnancy can be ended or aborted and specifies the persons qualified to conduct the same.

Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013

To ensure women’s safety at workplace, this Act seeks to protect them from sexual harassment at their place of work. Thirty-six percent of Indian companies and 25 percent among MNC’s are not complaint with the Sexual Harassment Act according to a FICCI-EY November 2015 report.

Sexual harassment at workplace also includes – the use of language with sexual overtones, invasion of private space with a male colleague hovering too close for comfort, subtle touches and innuendoes.

Indecent Representation of Women(Prevention) Act,1986

This Act prohibits indecent representation of women through advertisement or in publications, writings, paintings, figures or in any other manner.

National Commission for Women Act, 1990

The National Commission for Women (NCW) is a statutory body of the Government of India, established in January 1992. Lalitha Kumaramangalam was appointed its Chairperson in 2014.

The NCW represents the rights of women in India and provides a voice for their issues and concerns. The National Commission for Women Act aims to improve the status of women and worked for their economic empowerment.

Equal Remuneration Act, 1976

This Act prevents discrimination in terms of remuneration. It provides for payment of equal recompense to men and women workers.

It is necessary to know these and other laws in place to protect the interests of women. Only if you are aware of your rights can you fight against any injustice meted out to you at home, at the workplace, or in the society.


MAXIM – Ejusdem Generis, Noscitur a Socis, Ut Res Magis Valeat Quam Pereat, Reddendo Singula Singulis

1. Ejusdem Generis
According to the Black’s Law Dictionary (8th edition, 2004) the principle of Ejusdem Generis is where general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned. It is a canon of statutory construction, where general words follow the enumeration of particular classes of things, the general words will be construed as applying only to things of the same general class as those enumerated.

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 the same category. The general expression takes it’s 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. This principle is limited in its application to general word following less general word only. If the specific words do not belong to a distinct. Genus, this rule is inapplicable. Consequently, if a general word follows only one particular word, that single particular word does not constitute a distinct genus and, therefore, Ejusdem Generis rule cannot be applied in such a case.

Exceptional stray instances are, however, available where one word genus has been created by the courts and the general word following such a genus given a restricted meaning. If the particular words exhaust the whole genus, the general word following these particular words is construed as embracing a larger genus. The principle of Ejusdem Generis is not a universal application. If the context of legislation rules out the applicability of this rule, it has no part to play in the interpretation of general words. The basis of the principle of Ejusdem Generis is that if the legislature intended general words to be used in unrestricted sense, it would not have bothered to use particular words at all.

2. Noscitur a Socis
The principle of Noscitur a Sociis is a rule of construction. It is one of the rules of language used by court to interpret legislation. This means that, the meaning of an unclear word or phrase should be determined by the words immediately surrounding it. In other words, the meaning of a word is to be judged by the company it keeps. The questionable meaning of a doubtful word can be derived from its association with other words. It can be used wherever a statutory provision contains a word or phrase that is capable of bearing more than one meaning.

This rule is explained in Maxwell on the interpretation of statutes (12th edition ) in following words “ When two or more words susceptible of analogous meaning are coupled together, they are understood to be used in their cognate sense.” The words take their colour from and are quantified by each other, the meaning of the general words being restricted to a sense analogous to that of the less general.

3. Ut Res Magis Valeat Quam Pereat:
The maxim “Ut Res Magis Valeat Quam Pereat” is a rule of construction which literally means the construction of a rule should give effect to the rule rather than destroying it .i.e., when there are two constructions possible from a provision, of which one gives effect to the provision and the other renders the provision inoperative, the former which gives effect to the provision is adopted and the latter is discarded. It generally starts with a presumption in favor of constitutionality and prefer a construction which embarks the statute within the competency of the legislature. But it is to be noted that when the presumption of constitution fails, then the statutes cannot be rendered valid or operative accordingly. The landmark case of Indra Sawhney (2000), where the Supreme Court struck down the state legislation as it was violative of constitution and ultra-vires of the legislative competency.

4. Contemporanea Exposito Est Fortissima In Lege
Meaning Contemporaneous exposition is the best and strongest in law. It is said that the best exposition of a statute or any other document is that which it has received from contemporary authority. This maxim has been confirmed by the Apex Court in Desh Bandhu Gupta v. Delhi Stock Exchange Asson. Ltd. AIR 1979 SC 1049, 1054. Contemporanea exposito is a guide to the interpretation of documents or statutes. It is one of the important external aids for interpretation. How ever great care must be taken in its application. When a document was executed between two parties, there intention can be known by their conduct at the time and after the execution of the instrument.

Where the words of the deed are ambiguous, the court may call in the acts done under it as a clue to the intention of the parties. Their acts are the result of usages and practices in the society. Therefore their acts are useful as an external aid to interpretation of the deed. This principle may also be applied in case of statutes. “Contemporanea expositio est optima et fortissinia in lege” means usage or practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion. The maxim Contemporanea expositio as laid down by Lord Coke was applied to construing ancient statutes, but usually not applied to interpreting Acts or statutes which are comparatively modern.

The meaning publicly given by contemporary or long professional usage is presumed to be true one, even where the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must be understood in the sense in which it was understood when it was passed, and those who lived at or near that time when it was passed may reasonably be supposed to be better acquainted than their descendants with the circumstances to which it had relation, as well as with the sense then attached to legislative expressions. Usages and practice developed under a statute is indicative of the meaning ascribed to its words by contemporary opinion and in case of an ancient statute, such reference to usage and practice is admissible.

He said a uniform notorious practice continued under an old statute and inaction of the legislature to amend the same are important factors to show that the practice so followed was based on correct understanding of the law. According to Lord Ellenborough, Communis opinio is evidence of what the law is. When the practice receives judicial or legislative approval it gains additional weight and is to be more respected.

5. Reddendo Singula Singulis
Reddendo singula singulis is a Latin term that means by referring each to each; referring each phrase or expression to its corresponding object. In simple words “reddendo singula singulis” means that when a list of words has a modifying phase at the end, the phrase refers only to the last. It is a rule of construction used usually in distributing property. Where there are general words of description, following a record of particular things, such general words are to be construed distributively, and if the general words will apply to some things and not to others, the general words are to be applied to those things to which they will, and not to those to which they will not apply; that is to say, each phrase, word or expression is to be referred to its suitable objects.

The best example of reddendo singula singulis is quoted from Wharton’s law Lexicon, “If anyone shall draw or load any sword or gun, the word draw is applied to sword only and the word load to gun only, the former verb to former noun and latter to latter, because it is impossible to load a sword or to draw a gun, and so of other applications of different sets of words to one another.” The reddendo singula singulis principle concerns the use of words distributively. Where a complex sentence has more than one subject, and more than one object, it may be the right construction to provide each to each, by reading the provision distributively and applying each object to its appropriate subject. A similar principle applies to verbs and their subjects, and to other parts of speech.

6. Expresssio Unius Est Exclusio Alterius
Expressio unius est exclusio alterius is a Latin phrase that means express mention of one thing excludes all others. This is one of the rules used in interpretation of statutes. The phrase indicates that items not on the list are assumed not to be covered by the statute. When something is mentioned expressly in a statute it leads to the presumption that the things not mentioned are excluded. This is an aid to construction of statutes.


Rules of Interpretation

There are certain general principles of interpretation which have been applied by Courts from time to time. Primary Rules of Interpretation are discussed hereunder.

Rule of Literal Interpretation

In construing Statutes the cardinal rule is to construe its provisions literally and grammatically giving the words their ordinary and natural meaning. This rule is also known as the Plain meaning rule. The first and foremost step in the course of interpretation is to examine the language and the literal meaning of the statute. The words in an enactment have their own natural effect and the construction of an act depends on its wording. There should be no additions or substitution of words in the construction of statutes and in its interpretation. The primary rule is to interpret words as they are. It should be taken into note that the rule can be applied only when the meanings of the words are clear i.e. words should be simple so that the language is plain and only one meaning can be derived out of the statute.

In Municipal board v. State transport authority, Rajasthan, the location of a bus stand was changed by the Regional Transport Authority. An application could be moved within 30 days of receipt of order of regional transport authority according to section 64 A of the Motor vehicles Act, 1939. The application was moved after 30 days on the contention that statute must be read as “30 days from the knowledge of the order”. The Supreme Court held that literal interpretation must be made and hence rejected the application as invalid.

Lord Atkinson stated, ‘In the construction of statutes their words must be interpreted in their ordinary grammatical sense unless there be something in the context or in the object of the statute in which they occur or in the circumstances in which they are used, to show that they were used in a special sense different from their ordinary grammatical sense.’

Meaning

To avoid ambiguity, legislatures often include “definitions” sections within a statute, which explicitly define the most important terms used in that statute. But some statutes omit a definitions section entirely, or (more commonly) fail to define a particular term. The plain meaning rule attempts to guide courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that of a word found within a definition itself.

If the words are clear, they must be applied, even though the intention of the legislator may have been different or the result is harsh or undesirable. The literal rule is what the law says instead of what the law means.

A literal construction would not be denied only because the consequences to comply with the same may lead to a penalty. The courts should not be overzealous in searching for ambiguities or obscurities in words which are plain. (Tata Consultancy Services v. State of A.P

The literal rule may be understood subject to the following conditions – 
  • Statute may itself provide a special meaning for a term, which is usually to be found in the interpretation section.
  • Technical words are given ordinary technical meaning if the statute has not specified any other.
  • Words will not be inserted by implication.
  • Words undergo shifts in meaning in course of time.
  • It should always be remembered that words acquire significance from their context.

When it is said that words are to be understood first in their natural ordinary and popular sense, it is meant that words must be ascribed that natural, ordinary or popular meaning which they have in relation to the subject matter with reference to which and the context in which they have been used in the Statute. In the statement of the rule, the epithets ‘natural, “ordinary”, “literal”, “grammatical” and “popular” are employed almost interchangeably to convey the same idea.

For determination of the meaning of any word or phrase in a statute, the first question is what is the natural and ordinary meaning of that word or phrase in its context in the statute but when that natural or ordinary meaning indicates such result which cannot be opposed to having been the intention of the legislature, then to look for other meaning of the word or phrase which may then convey the true intention of the legislature.

Another important point regarding the rule of literal construction is that exact meaning is preferred to loose meaning in an Act of Parliament. In the case of Pritipal Singh v. Union of India, it was held that there is a presumption that the words are used in an Act of Parliament correctly and exactly and not loosely and inexactly.

Rationale for this Rule

Proponents of the plain meaning rule claim that it prevents courts from taking sides in legislative or political issues. They also point out that ordinary people and lawyers do not have extensive access to secondary sources. In probate law the rule is also favored because the testator is typically not around to indicate what interpretation of a will is appropriate. Therefore, it is argued, extrinsic evidence should not be allowed to vary the words used by the testator or their meaning. It can help to provide for consistency in interpretation.

Criticism of this rule

Opponents of the plain meaning rule claim that the rule rests on the erroneous assumption that words have a fixed meaning. In fact, words are imprecise, leading justices to impose their own prejudices to determine the meaning of a statute. However, since little else is offered as an alternative discretion-confining theory, plain meaning survives.

This is the oldest of the rules of construction and is still used today, primarily because judges may not legislate. As there is always the danger that a particular interpretation may be the equivalent of making law, some judges prefer to adhere to the law’s literal wording.

The Mischief Rule

The mischief rule is a rule of statutory interpretation that attempts to determine the legislator’s intention. Originating from a 16th-century case (Heydon’s case) in the United Kingdom, its main aim is to determine the “mischief and defect” that the statute in question has set out to remedy, and what ruling would effectively implement this remedy. When the material words are capable of bearing two or more constructions the most firmly established rule or construction of such words “of all statutes, in general, be they penal or beneficial, restrictive or enlarging of the common law is the rule of Heydon’s case. The rules laid down, in this case, are also known as Purposive Construction or Mischief Rule.

The mischief rule is a certain rule that judges can apply in statutory interpretation in order to discover Parliament’s intention. It essentially asks the question: By creating an Act of Parliament what was the “mischief” that the previous law did not cover?

Heydon’s case

This was set out in Heydon’s Case where it was stated that there were four points to be taken into consideration when interpreting a statute:

  • What was the common law before the making of the act?
  • What was the “mischief and defect” for which the common law did not provide?
  • What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth?
  • What is the true reason for the remedy?

The office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

The application of this rule gives the judge more discretion than the literal and the golden rule as it allows him to effectively decide on Parliament’s intent. It can be argued that this undermines Parliament’s supremacy and is undemocratic as it takes lawmaking decisions away from the legislature.

Use of this Rule

This rule of construction is of narrower application than the golden rule or the plain meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when the statute was passed to remedy a defect in the common law. Legislative intent is determined by examining secondary sources, such as committee reports, treatises, law review articles and corresponding statutes. This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be applied.

In the case of Thomson v. Lord Clan Morris, Lord Lindley M.R. stated that in interpreting any statutory enactment regard should not only be paid to the words used, but also to the history of the Act and the reasons which lead to its being passed.

In the case of CIT v. Sundaradevi, it was held by the Apex Court that unless there is an ambiguity, it would not be open to the Court to depart from the normal rule of construction which is that the intention of the legislature should be primarily to gather from the words which are used. It is only when the words used are ambiguous that they would stand to be examined and considered on surrounding circumstances and constitutionally proposed practices.

The Supreme Court in Bengal Immunity Co. v. State of Bihar, applied the mischief rule in construction of Article 286 of the Constitution of India. After referring to the state of law prevailing in the province prior to the constitution as also to the chaos and confusion that was brought about in inter-state trade and commerce by indiscriminate exercise of taxing powers by the different Provincial Legislatures founded on the theory of territorial nexus, Chief Justice S.R. Das, stated “It was to cure this mischief of multiple taxation and to preserve the free flow of interstate trade or commerce in the Union of India regarded as one economic unit without any provincial barrier that the constitution maker adopted Article 286 in the constitution”.

A principle to be valued must be capable of wider application than the mischief which gave it existence. These are designed to approach immortality as nearly as human institutions can approach it’. Mischief Rule is applicable where language is capable of more than one meaning. It is the duty of the Court to make such construction of a statue which shall suppress the mischief and advance the remedy.

Advantages
  • The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to the Golden or Literal rules.
  • It usually avoids unjust or absurd results in sentencing.
Disadvantages
  • It is considered to be out of date as it has been in use since the 16th century, when common law was the primary source of law and parliamentary supremacy was not established.
  • It gives too much power to the unelected judiciary which is argued to be undemocratic.
  • In the 16th century, the judiciary would often draft acts on behalf of the king and were therefore well qualified in what mischief the act was meant to remedy.
  • It can make the law uncertain.

Golden Rule of Interpretation

The Golden rule, or British rule, is a form of statutory interpretation that allows a judge to depart from a word’s normal meaning in order to avoid an absurd result.

It is a compromise between the plain meaning (or literal) rule and the mischief rule. Like the plain meaning rule, it gives the words of a statute their plain, ordinary meaning. However, when this may lead to an irrational result that is unlikely to be the legislature’s intention, the judge can depart from this meaning. In the case of homographs, where a word can have more than one meaning, the judge can choose the preferred meaning; if the word only has one meaning, but applying this would lead to a bad decision, the judge can apply a completely different meaning.

This rule may be used in two ways. It is applied most frequently in a narrow sense where there is some ambiguity or absurdity in the words themselves.

For example, imagine there may be a sign saying “Do not use lifts in case of fire.” Under the literal interpretation of this sign, people must never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of the person who made the sign is obviously to prevent people from using the lifts only if there is currently a fire nearby.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles of public policy, even where words have only one meaning. Example: The facts of a case are; a son murdered his mother and committed suicide. The courts were required to rule on who then inherited the estate, the mother’s family, or the son’s descendants. There was never a question of the son profiting from his crime, but as the outcome would have been binding on lower courts in the future, the court found in favour of the mother’s family.

Rule of Harmonious Construction

When there is a conflict between two or more statues or two or more parts of a statute then the rule of harmonious construction needs to be adopted. The rule follows a very simple premise that every statute has a purpose and intent as per law and should be read as a whole. The interpretation consistent of all the provisions of the statute should be adopted. In the case in which it shall be impossible to harmonize both the provisions, the court’s decision regarding the provision shall prevail.

The rule of harmonious construction is the thumb rule to the interpretation of any statute. An interpretation which makes the enactment a consistent whole should be the aim of the Courts and a construction which avoids inconsistency or repugnancy between the various sections or parts of the statute should be adopted. The Courts should avoid “a head on clash”, in the words of the Apex Court, between the different parts of an enactment and conflict between the various provisions should be sought to be harmonized. The normal presumption should be consistency and it should not be assumed that what is given with one hand by the legislature is sought to be taken away by the otherThe rule of harmonious construction has been tersely explained by the Supreme Court thus, “When there are, in an enactment two provisions which cannot be reconciled with each other, they should be so interpreted, that if possible, the effect should be given to both”. A construction which makes one portion of the enactment a dead letter should be avoided since harmonization is not equivalent to destruction.

It is a settled rule that an interpretation which results in hardship, injustice, inconvenience or anomaly should be avoided and that which supports the sense of justice should be adopted. The Court leans in favour of an interpretation which conforms to justice and fair play and prevents injustice.

When there are two provisions in a statute, which are in apparent conflict with each other, they should be interpreted such that effect can be given to both and that construction which renders either of them inoperative and useless should not be adopted except in the last resort.

This principle is illustrated in the case of Raj Krishna v. Binod. In this case, two provisions of Representation of People Act, 1951, which were in apparent conflict, were brought forth. Section 33 (2) says that a Government Servant can nominate or second a person in election but section 123(8) says that a Government Servant cannot assist any candidate in election except by casting his vote. The Supreme Court observed that both these provisions should be harmoniously interpreted and held that a Government Servant was entitled to nominate or second a candidate seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate or second a candidate and forbidding him to assist the candidate in any other manner.

The important aspects of this principle are –
  • The courts must avoid a head on clash of seemingly contradicting provisions and they must construe the contradictory provisions so as to harmonize them.
  • The provision of one section cannot be used to defeat the provision contained in another unless the court, despite all its effort, is unable to find a way to reconcile their differences.
  • When it is impossible to completely reconcile the differences in contradictory provisions, the courts must interpret them in such as way so that effect is given to both the provisions as much as possible.
  • Courts must also keep in mind that interpretation that reduces one provision to a useless number or a dead lumbar, is not harmonious construction.
  • To harmonize is not to destroy any statutory provision or to render it loose.

DRAFTING, PLEADING AND CONVEYANCING

By the art of legal drafting (also commonly called the legal composition) we
mean the art of composing or writing all documents which are either expressly intended to be, or which frequently become the subject of legal interpretation. It is concerned chiefly therefore, although not exclusively, with the documents which declare or regulate rights. This at once distinguishes the art of legal composition from the art of ordinary composition or literature, which deals not with rights but with thoughts or facts. Of course the bases of literary composition and legal composition are all the same, grammar and logic. The latter,
perhaps, more strictly than the former kind o composition is bound by the rules of the grammarian and logician but we do not intend, except incidentally, to touch on the rules of grammar or logic. It is composition as legal – as dealing with or affecting rights – which we have in view. This differs so much from literary composition that, though they have a common basis, same rules do not apply to both. The style of good legal composition (for it has a style of its own) is free from all colour, from all emotion, from all rhetoric. It is impersonal as if the voice, not of any man, but of the law, dealing with the necessary facts. It disdains emphasis and all other artifices. It uses no metaphor or figure of speeches. It is always consistent and never contradicts itself. It never hesitates or doubts. It says in the plainest language, with the simplest, fewest and fittest words, precisely what it means. These are qualities which might be used to advantage more frequently than is common in literature,
and unfortunately they are not to be found in many legal compositions, but they are essential to good legal composition and not essential to literary composition.
Pleadings are statement in writing drawn up and filed by each party to a
case, stating that his contentions will be at the trial and giving all such details as his opponent needs to know in order to prepare his case in answer. The function of pleadings is not simply for the benefit of the parties, but also and perhaps primarily for the assistance of the court by defining with precision the area beyond which, without the leave of the court and consequential amendment of the pleadings, the conflict must not be allowed to extend. The purpose of rules regarding pleadings is to advance justice and to prevent multiplicity of proceedings.

Conveyancing is the process by which legal title to property is
transferred. As a consequence, over time, a conveyancing has become the description for the document effecting such transfer. In many ways conveyancing is like Shakespeare’s character, Autolycus in The Winter’s Tale, ‘a snapper-up of unconsidered trifles’. Like this amiable rogue, conveyancing takes from here, there and everywhere, from within the full gamut of the law. Conveyancing rests and has been built upon the three foundations of land law, contract law and equity and trusts. Because of this, a confident appreciation of land law is crucial for success in conveyancing. You will also need to have a prior knowledge and understanding of the details concerning the formation of contracts, the formalities of written contract, misrepresentation and remedies for breach of contract. A detail understanding of the influence of equity as well as trust will always be a prerequisite for a successful conveyancer.
So, the key to understand the nature of conveyancing is to appreciate how it calls
upon various disparate areas of law. It means that you must abandon a discrete approach to applying the separate elements of the law. Conveyancing requires you to blend your knowledge. Conveyancing does not relate just to the transfer of ownership of residential properties. It covers the transfer of title to both houses and flats, new and second-hand properties and commercial property of all kinds.
When students reach the legal practice course they should have developed a
general critical approach to the new law and to problem solving. The object of this course is to present substantive law in the context of pleadings and conveyancing and to show how those transactions are influenced by the legal considerations. A well drafted document instantly attracts the attention of the court. Any failure however little, in bringing out the material issues would be fatal to the matter under consideration. Therefore, it is pertinent that one has an accurate understanding of the concerned issues, so that, relevant question are brought before the court for successful adjudication. Pleadings assists student’s in their endeavor to enter active practice. This course is created to help student’s understand the basics of pleadings and conveyancing.

Meaning of Pleadings
Pleadings are the statement of facts in writing drawn up and filed in a Court by each party to am case stating therein what his contention shall be at the trial and giving all such details as his opponent will need to know in order to prepare his case in answer. In India there are only two pleading in a suit as defined under Order 6, rule 1 of the Code of Civil Procedure, it says that pleading means “Plaint or Written Statement”. This definition is not very clear in itself.
The plaint and written statement are defined in the following clauses:
(a)Plaint: A statement of claims, called the “plaint” in which the plaintiff sets out
his cause of action with all necessary particulars; and
(b)Written Statement: A statement of defences, called the “written statement”
which the defendant deals with every material fact alleged by the Plaintiff in the
plaint and also sets any new facts which tells in his favour, adding such objection as
he wishes to take to the claim.
Beside the plaint and the written statement, order pleading that may be filed, may be classed
under two heads: (i) subsequent pleadings, and (ii) additional pleadings.
(i)Subsequent Pleadings: The only subsequent pleading which is filed as a matter of
right, without the leave of the court, is a written statement of a plaintiff by way of
defence to a plea set-off set up by a defendant in the written statement of his
defences. No other pleading subsequent to the written statement of a defendant other than that by way of defence to a plea of set off can be presented except with the leave of the court and upon such terms as the court may think proper. But the Court may at any time require a written statement or an additional written statement from any of the parties and fix a time for presenting the same (O.8, r.9). Any ground of defence which has arisen after the institution of the suit or the presentation of the written statement, may be, raised by the plaintiff or the defendant as the case may be, in his written statement (O.8, r.9). This is also a subsequent pleading. The subsequent pleading, i.e., this written statement in some states is also termed as “replication”.
This term was formerly used in England where plaintiff‟s written statement is now
called “reply”.
(ii)Additional Pleading: Although no pleading subsequent to the written statement of
a defendant other than by way of defence to a plea of set-off can be presented without the leave of the court, yet the court may at any time require a written statement or additional written statement from any of the parties, i.e., plaintiff or defendant or both (O.8, r.8). The additional pleadings are not subsequent pleadings in the true sense of the term. They are pleading by way of further and better statement of the nature of the claim or defence or further and better particular of any matter or state in the pleadings. These pleading may be ordered under order 6, rule 5 of the Code of Civil Procedure.
Under the English Law, pleading has been defined as follows: “pleading includes any petition or summons and also include the statement in writing of the claim or demand of any plaintiff and of the defence of any defendant thereto and of reply of the plaintiff to nay counter-claim of a defendant.”
Function and Object of Pleadings
The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank
Ltd., (1941) 2 K.B. 72, has expressed the function of pleading in the following words:
“The function of a pleading is not simply for the benefit of the parties but also and
perhaps primarily for the assistance of a Court by defi

been, had three been no rules pleadings to compel the parties to lay bare their cases before the
opposite party prior to the commencement of the actual trial”.
Truly speaking the object of the pleading is to narrow down the controversy of the parties to
definite issue. The sole object of pleadings is that each side may be fully active to the question
that are about to be argued in order that they may have an opportunity of bringing forward
such evidence as may be appropriate to the issues. The Court has no power to disregard the
pleading and reach conclusions that they think are just and proper.
A few year ago Hon‟ble Mr. Justice Lord William of the Calcutta High Court in the case of,
strongly emphasize the need of careful study of the art of pleading and condemned the
obscure pleading which were shocking and were filed even in Calcutta High Court. It is,
therefore, the duty of every advocate to take extreme care in drafting of his pleadings. There
is no force in saying that the pleading in this country are not to be strictly construed. Has this
been the object of the law of pleading the framers of the Code of Civil Procedure would not
have laid down the rules of civil pleadings.
A select committee of eminent lawyers having knowledge of Indian conditions was appointed
to frame the present Code of Civil Procedure which has been amended and redrafted in 1976.
Order 6, 7 and 8 of the Code of Civil Procedure are very important from the point of view of
drafting of pleading in the High Court and Mofussils Court. Appendix A to the Code of Civil
Procedure contains some model form of pleadings which are useful. Unfortunately these
forms are seldom consulted by the mofussil pleader the reason being that the pleadings are
being drafted by their clerks who are not trained in this direction and do not have legal
knowledge.
The pleading should always be drawn up and conducted in such manner so as to evolve some
clear and definite issues i.e., some definite propositions of law and/or fact, asserted by one
party and denied by the other. But both the parties must agree on the points sought to be
adjudicated upon in action. When this has been fairy and properly ascertained then following
advantages flow from pleadings:
(i) It is a benefit to the parties to know exactly what are the matters left in dispute.
They may discover that they are fighting about nothing at all; e.g. when a plaintiff in
an action of libel finds that the defendant does not assert that the words are true, he is
often willing to accept an apology and costs, and so put an end to the action.
(ii)It is also a boon to the parties to know precisely what facts they must prove at the
trial; otherwise, they may go to great trouble and expense in procuring evidence of
facts which their opponent does not dispute. On the other hand, if they assume that
their opponent will not raise such and such a point, they may be taken suddenly by
surprise at the trial.
(iii)Moreover, it is necessary to ascertain the nature of the controversy in order to
determine the most appropriate mode of trial. It may turn out to be a pure point of
law, which should be decided by judge.
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(iv)It is desirable to place on record the precise question raised in the action so that
the parties or their successor may not fight the same battle over and again.
Fundamental Rules of Pleadings
The English law of pleading has got four fundamental rules of pleading upon which Order 6
of the Code of Civil Procedure is based which are set out as under:
1.Every pleading must state facts and not law.
2.It must state all material facts and material facts only.
3.It must state only the facts on which the party‟s pleading relies and not the evidence
by which they are to be proved; and
4.It must state such facts concisely, but with precision and certainty.
(1) Facts, not law
The first fundamental rule pleading is that neither provisions of law nor conclusion of mixed
law and facts, should be alleged in a pleading. The pleading should be confined to facts only
and it is for the judge to draw such interference from those facts as are permissible under the
law of which he is bound to take judicial notice.
Illustration
It will not be sufficient to state that „Abu Mohammad made a gift of his property‟ to the
plaintiff. The plaintiff should allege here the gift was made, how it was accepted and how
possession was delivered; because these are the facts which constitute a valid gift under
Muhammedan Law. To allege that „Abu Mohammad made a gift‟ will be a conclusion of law
from the facts which are not to be state directly in the pleading. Secondly, in a suit for
damages for negligence, it is not enough for the plaintiff to state that the defendant has been
guilty of negligence‟ without showing how and in what respect he was negligence and how he
became bound to use due care to prevent an injury to other. Thirdly, when then defendant has
to reply to the claim of the plaintiff in a money suit, it is not sufficient for him to state that
„the defendant does not owe to the plaintiff‟. But he must allege such factwhich go to prove
that in the circumstances the defendant does not owe to the plaintiff. The defendant should
state that he never borrowed from the plaintiff, or good were never ordered, or were never
delivered, or that they were not equal to the sample.
It is not sufficient in a suit upon a contract for the defendant to, merely, plead the „the contract
is rescinded‟, The defendant must plead in what manner and by what means he contends that
is was rescinded.
The fundamental rule of pleading is that a pleading shall affirmatively contain only a material
fact on which the party relies and it shall not contain facts which are only evidence by which
such material facts are to be proved. The reason for not mentioning the law in the pleading is
that it is the duty of the court to find out and examine all plea of Law that may be applicable
to the facts of the case. However, the parties can make their submission about law any time.
For example, the non maintainability of the suit which is a point of law, can be urged

although no specific plea has been raised in the pleading. The rule that every pleading must
state facts and not law or an interference of law has got following exceptions.
(a) Foreign Laws: The court do not take any judicial notice of foreign laws and
hence they must be pleaded as facts. The status of the foreign country intended to be
relied upon should be set-forth as substantially as any other facts. .
(b)Mixed question of Laws an facts: Where a questions is one of mixed law and
fact, it is permissible and proper to plead both the facts and the legal conclusion. For
instance, the defendant may say that the suit is barred by the law of limitation, or he
may say he is entitled to set off after narrating the facts on which he bases his
conclusions.
(c)Condition precedent: The Code of Civil Procedure provides that any condition
precedent the performance of which is intended to be contested shall be distinctly
specified in the pleading of the plaintiff or defendant (Order 6 r.6 of C.P.C.), as for
instance, the legality of the notice under section 80, C.P.C.
(d)Custom and Usage of Trades: Custom and usage of any trade and business shall
be pleaded like any other facts, if a party wants to rely on them. But a custom
repeatedly brought before Court and recognised by them regularly is deemed to have
acquired the force of law and need not be pleaded. For example, an occupancy tenant
is entitled by local custom and usage to cut trees growing upon his holding it is not
necessary for the occupancy tenant to plead this custom, if he wishes to rely on this
right to cut the trees. Similarly, a party who wishes to rely on the usage of a particular
trade and business and if it is at variance with any provision of the Contract Act, he
must not plead the usage of such trade and business with its detailed incident. If it is
not pleaded, no evidence to prove it shall be admitted.
(e)The facts of negligence, right or liability, unlawful or wrongful act should be
specifically pleaded. Every plea of fact should be specifically raised and proved.
(2) Material facts
The second fundamental rule of pleading is that every pleading shall contain only a statement
of material facts ion which the party pleading relies for his claim or defence. This rule has
been enunciated in Order 6, ruke2 of the Code of Civil Procedure. The rule that the material
facts should be not a technically and that an omission to observe it may increase the difficulty
in the Court‟s task of ascertaining the rights of the parties. Further, every pleading must state
facts which are material at the present stage of the suit. Now, the question arises what is
material fact? The fact which is essential to the Plaintiff‟s cause of action or to the
defendant‟s defence which each prove or fail is material fact.

Now, the question that what facts are material, is not very easy to answer. However, it can be
said that fact is material for the pleading of a party which he is bound to prove at the trial
unless admitted by the other party before he can succeed in his claim or defence. If one is in
reasonable doubt about a particular fact as a material fact it is better for him to plead that fact
rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the
hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full
particulars of fraud and misrepresentation, because these particulars constitute material facts
unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to prove
at the trial.
Of course, a material fact can be inserted in the pleading by amendment which is the right of
the plaintiff and defendant; but when a pleading is amended one is likely to be saddled with
the cost of other side. When suit is brought under a particular statute, all facts which are
necessary to bring the suit under the statue must be alleged. When a rule of law applicable to
a case has an exception to a case has an exception to it, all facts are material which tend to
take the case out of the rule or out of exception. For instance:
(1)If a childless Mohammedan widow claims one-fourth share in the property of her
husband as allowed by Shia law, she must allege that her husband was a Shia.
(2)Where Plaintiff claims right of pre-emption u/s 15(2)(b) of Punjab pre-emption
Act, he must plead the necessary facts in respect of his claim.
(3)Where a plaintiff claims an alternative relief, he must plead facts entitling him, for
such relief.
(4)Where the question of age or time affects the right of the parties, the facts should
be specifically pleaded.
(5)Every plea of facts must be specifically pleaded, and proved. Court cannot allow
party to the suit to lead evidence inconsistent whit his plea inspite of object of
objection by the other party is allowed to lead evidence in rebuttal does not cure the
legal defect.
(6)Where a plaintiff sues on the basis of a title he must state the nature of the deed
from which he has derived title.
(7)The plea that a woman claiming maintenance has lost her right due to continuous
desertion or living in adultery should be specifically raised.
(8)Where the plea is based on custom, it must be stated in the precise form what the
custom is. For instance, if a childless Mohammedan widow claims one-fourth share in
the property of her husband as allowed by Shia Law, she must allege that her husband
was a Shia. The following are exception to this fundamental rule of pleading.

(a)Content of documents: Whenever the content of document are material, it shall be
sufficient in any pleading to state the effect thereof as briefly as possible without
setting out whole or any part thereof unless any precise words thereof are material.
Foe instance, if plaintiff‟s claim is based on a sale-deed, it is sufficient to state that
“defendant has sold the property to the property to the plaintiff by a sale-deed
dated……”
(b)Matters of Inducement: it means introductory or prefatory facts which should be
stated in the first and second paras in the body of the plaint or written statement.
Though it is not necessary yet sometimes it is desirable to commence a plaint with
some introductory allegations stating who the parties are, what business they carry on
how they are related and connected and other surrounding circumstances leading up
to the dispute. Though these are not material facts yet these are allowed in England
and hence in India too. But the matter of inducement should be reduced to the
minimum need.
(3) Facts, Not Evidence
The third fundamental rule of pleading has been laid down by Order 6, rule 2 of the Code of
Civil Procedure. It says that every pleading must contain a statement of material facts but not
the evidence by which they are to be proved. The material facts on which a party relies are
called Facta Prabantia, i.e. the facts to be proved , and they should be stated in the pleadings.
The evidence or facts by which Facta Probantia are to be proved are called Facts Probantia,
and they are not to be stated in the pleadings. Facta Probantia are not the facts in issue but
only relevant facts which will be proved at the trial in order to established facts in issue. For
instance, in a suit of damages for malicious prosecution the plaintiff should only allege in the
plaint that the defendant was actuated by malice in prosecuting him. He must not allege that
he had previously given evidence against the defendant and the defendant had vowed to take
revenge. The plaintiff is by all means entitled to tender evidence to prove this fact. Secondly,
in a policy of life insurance, the condition that the policy shall be void, if the holder dies of
his own hand, in the defence it is not necessary to state that the assured brought the pistol a
few days before his death and made all preparation to kill himself. It is sufficient to state in
defence that the assured died of his own hand. In some cases where the facts in issue and
relevant facts are so mixed up that it is very difficult to separate them and if it is so the
relevant facts may be stated. For example, where custom is based on village administration
paper, which is the basis of claim and its sole proof. In such cases the record has to be
pleaded. In the Punjab Rewaje Aam (customs)are contained by the Manual of Customary
Law which records customs, are only evidence and it is nor necessary to refer to them in
plaints.
(4) Concise Form with Precision and Certainty
The material facts must be stated in a summary form, succinctly and in a strict chronological
order. All unnecessary allegations and their details should be omitted in order to attain brevity
9
in pleadings. Pleading is not a place for fine writing but only assertion of hard facts. It is
desirable to go straight to the point and state fact, boldly, clearly and concisely and to avoid
all paraphrasing and all circumlocutions. As far as possible an active voice should be
preferred to passive in pleading. The same person or thing should be called by the same name
throughout the pleading. The pleading shall be divided into paragraph numbered
consecutively. Dates sums and numbers shall be expressed in figures, even though the
pleading should be concise, it should never be obscure. It should be both concise , as well as
precise. The parties cannot change the case and get the relief.
As already discussed the unnecessary facts should be omitted from the pleadings. Let us
summarise them.
(1)Matters of law, (2)Matters of evidence, (3)Matters not alleged in the opponent‟s pleading,
(4)Matters presumed by law, (5)The performance of condition precedent, (6)The words of
documents, (7)Matters affecting cost only, (8)Matters not material to the case, (9)The
defendant need not plead to the prayer of the plaintiff, (10)The defendant need not plead to
the damages claimed or their amount. The above details should not be pleaded in a pleading.
A good pleader should bear in mind the following points in relation to a pleading:
(1) Describe the names and places accurately and spell them correctly and adopt the same
spelling throughout.
(2) One should always avoid the use of pronoun as „He‟, „She‟, „This‟, or „That‟. the plaintiff
or the defendant should not be addressed by their names at some place and at some place by
the word „Plaintiff‟ and „ defendant‟, call them throughout your pleading by the expression
„the plaintiff‟ and „the defendant‟ as the case may be. Where one has to distinguish between
two or more plaintiff or defendant, call in your pleading, „the plaintiff Ramashankar‟ or „the
defendant-Hariharan‟ as the case may be.
(3) A lawyers should allege all facts boldly and plainly. he should use the language of the
document or the act itself; and he should not invent his own language however correct it may
be, e.g. of a policy becomes void in case, “the assured shall die of his own hand.” Now, inthis
case while drafting the pleading instead “ the assured killed himself” or he committed
suicide,” plead that “the assured died of his own hand.”
(4) A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts. As far as
possible complex sentences should also be avoided. Facts should not be repeated. Pleading
should be divided into separate paragraphs and as far as possible only one fact should be
contained by one paragraph embodying all necessary particulars in the pleading.
(5) Every pleading shall be signed by the party and his advocate and, if the party is unable to
sign the pleading it may be signed by this agent.
10
(6) Every pleading shall be verified by the party or the parties. A verification can also be made
by any other person if acquainted with the facts of pleadings. False verification is an offence
punishable by the Indian Penal Code.
(7) In cases where a corporation is a party, pleading may be verified by Secretary or by the
director or by any other principal officer of that corporation who is able to depose the facts of
the case. in verification clause one should denote according to the numbers of paragraph o his
own knowledge and what he verified upon the information received and verified to be true.
Alternative Pleas:
Law does not prohibit a plaintiff from relying on several distinct and different rights in the
alternative or a defendant from raising as many distinct and separate defences as he like. For
example, a plaintiff may sue for possession of a house belonging to A, as an adopted son of
A, and in the alternative under a will executed by A in the plaintiff‟s favour. A plaintiff may
claim proprietary right in a land, or, in the alternative easementary right In an action for preemption
the defendant is not prohibited from setting up a plea of estoppels in addition to a
plea of denial of custom of pre-emption. A Hindu person claiming under a sale deed from a
Hindu widow may support his claim by pleading that the widow separated during the life time
of her husband and hence she was the owner of the property which she had sold to him, or in
the alternative the widow was in possession for ever 12 years and thus became owner by
adverse possession.
A defendant in money suit due on promissory note against him may plead that he did not
execute the promissory note, and in the alternative the plaintiff claim is barred by the law of
limitation. But it must be carefully borne in mind by the draftsman and separately be stated in
the pleading. The Court will not allow any such pleas on the ground covered by implication
unless specifically set out. Thus, in a suit by a son to set aside certain transfers made by his
mother on the ground of unsoundness of mind of his mother at the time or the transfer and
further averred that the donee was residing with his mother and was completely under his
dominion and control and the donee knew the mental condition of the donor.
*********

CIVIL PLEADINGS
[NOTE : All pleadings must be neatly typed/printed in one and a half space]
IN THE COURT OF DISTRICT JUDGE (DISTRICT __________) DELHI
SUIT NO ……………. OF 20..
(SUIT UNDER ORDER XXXVII OF THE CODE OF CIVIL PROCEDURE, 1908)
IN THE MATTER OF:
M/s ABC Pvt. Ltd.
A Company Incorporated Under The
Companies Act, Having Its Registered Office
At New Delhi.
Through its Director
Shri……………………
……….. PLAINTIFF
VERSUS
M/s XYZ Ltd.
A Company Incprporated Under The
Companies Act. Having Its Registered
Office At Delhi
Through its Director
Shri…………………… …….. DEFENDANT
SUIT FOR RECOVERY OF RS. 4,19,200/-(Four lakh nineteen thousand two hundred
Only) UNDER ORDER XXXVII OF CODE OF CIVIL PROCEDURE, 1908
MOST RESPECTFULLY SHOWETH:
1. That the Plaintiff is a Company constituted under the Companies Act having its
registered office at B-40, Safdarjung Enclave, New Delhi. Mr. P. Executive Director or the
Plaintiff-company, is a duly constituted attorney of the Plaintiff-company and is authorized
and competent to sign and verify the plaint, vakalatnama etc. and to institute this suit on
behalf of the Plaintiff.
2. That the Plaintiff-company inter-alia carry on the business of construction,
engineering and designing. The Plaintiffs are builders of international repute and have earned
a big name in their business.
3. That the Defendant is a Company incorporated under the Companies Act having their
registered office at Chandigarh. However, the Administrative office of the Defendant is
situated at Delhi i.e. within the jurisdiction of this Hon‟ble Court.
12
4. That the Defendant approached the Plaintiff for construction of a building for their
paper mill at Chandigarh some time in the year 2000 whereupon the Plaintiff constructed the
building and handed over the possession of the same to the Defendant sometime in December,
2013.
5. That the on 4th April, 2014, the Plaintiff raised the final bill for Rs. 4,19,200/- on the
Defendant on account of the aforesaid construction of their paper mill at Chandigarh against
which the Defendant handed over cheque No. 213456 dated 18.4.2014 for Rs. 4,19,200/-
drawn on Punjab National Bank, Shahdara, Delhi to the Plaintiff, which was dishonoured
upon presentation.
6. That the Plaintiff immediately informed the Defendant about the dishonour of the said
cheque and called upon the Defendant to make the payment of the said amount along with
interest @ 18% per annum. However, the Defendant failed to pay the same to the Plaintiff
despite repeated requests and reminders.
7. That the Plaintiff therefore finally issued a legal notice dated 6th April, 2015 to the
Defendant calling upon the Defendant to clear the outstanding amount of Rs. 1,39,492/- along
with interest at the rate of 18% per annum w.e.f. 4-4-2014 upto the date of payment.
However, no payment has been made by the Defendant despite the said notice.
8. That the Defendant is now liable to pay a sum of Rs. 4,19,200/- along with interest @
18% per annum from the date on the Plaintiff‟s bill. The Plaintiff is however, claiming
interest form 18-4-2014 upto the date of filing of this suit @ 18% per annum.
9. That the cause of action in favour of the Plaintiff and against the Defendant first arose
in 2000 when the Plaintiff was approached by the Defendant for construction of their paper
mill. It further arose in December, 2013 when the said building was completed and handed
over to the Defendant and on 4th April, 2014 when the Plaintiff submitted the final bill for Rs.
4,19,200/- to the Defendant. The cause of action arose on all dates when the Plaintiff called
upon the Defendant to make the payment and the later failed to comply with it. The cause of
action is still subsisting as the Defendant has failed to pay the outstanding amount despite
repeated oral and written requests and reminders from the Plaintiff.
10. The suit is within the period of limitation.
11. This Hon‟ble Court has jurisdiction to entertain this suit because the part of the cause
of action arose at Delhi. The contract for construction of the paper mill was entered at Delhi,
all the payments upto this date have been made at Delhi and the payment of the outstanding
amount was also to be made at Delhi. The Administrative Office of the Defendant is situated
at Delhi where they carry on the work for their gain.
12. The value of this suit for the purposes of court fee and jurisdiction is Rs. ——— on
which court fee of Rs. ___________is paid.
13. That this suit is filed under Order XXXVII of the Code of Civil Procedure and no
relief has been claimed which does not fall within the ambit of Order XXXVII.
PRAYER:

It is, therefore most respectfully prayed that this Hon‟ble Court may be pleased to :-
(a) Pass a decree for Rs. 4,19,200/-(Four Lakhs Nineteen Thousand and Two
Hundred only) with interest @ 18% per annum from 18.4.2014 upto the date
of filing the suit in favour of the Plaintiff and against the Defendant;
(b) award pendentlite and future interest at the rate of 18% per annum on the
above stated amount of Rs. 4,19,200/-(Four Lakhs Nineteen Thousand and
Two Hundred only) with interest @ 18% per annum from 18.4.2014 upto the
date of filing the suit in favour of the Plaintiff and against the Defendant;
(c) award cost of the suit in favour of the Plaintiff and against the Defendant; and
(d) pass such other and further order(s) as may be deemed fit and proper on the
facts and in the circumstances of this case.
Plaintiff
Place: Through
Date: Advocate
VERIFICATION:
Verified at Delhi on this 1st day of January 20… that the contents of paras 1 to 8 of the
plaint are true to my knowledge derived from the records of the Plaintiff maintained in the
ordinary course of its business, those of paras 9 to 13 are true on information received and
believed to be true and last para is the humble prayer to this Hon‟ble Court.
Plaintiff
[NOTE : The above plaint must be supported by an Affidavit]


Who is bhumidhar under the U.P.Z.A & L.R. Act1950?

it is to be noted that before the passing of the U.P.Z.A and L.R. Act 1950 there were fourteen variety of tenures existing. All tenures were complicated and bewildering some tenants like fixed rate tenants were found in the permanently settled districts of Agra province while the tenants holding on special terms in Avadh were peculiar form of land tenure to Avadh province . the rights and privileges of the same class of tenants also differed in two provinces. For example an occupancy tenant in Avadh had unrestricted right of subletting while in Agra he possessed only a restricted right. His interest devolved according to his personal low in Avadh whereas in Agra the devolution of his interest followed the provisions contained under the U.P. Tenancy Act, 1939 the permanent tenure holder was enumerated in the list of tenures but in most cases he was treated as if he were a zamindar. The U.P Zamindari Abolition and land Reforms Act, 1950 substituted these tenders and classified them into following four classes
1. Bhmidhar;
2. Sirdar;
3. Asami; and
4. Adhivasi
Adhivasi was a tenure inferior to sirdar but superior to asami it wasa transitional forms of land tenure which was to disappear from the commencement of the Act. It was intended that they will either acquire bhumidhari right after depositing 15 times of the rent(with the written consent of his land holder) of will be liable to ejectment U/S 235 of the Act as trespasser. But before maturity adhivasis were considered favourably and they were conferred the rights of sirdar by the U.P. Land reform (Amendment) Act1954 so all adhivasi became sirdars and there remained only three tenures in land law.it may again be noted that in 1958 by the U.P Land reforms (Amendment) Act S. 133-A has been added and a fourth tenant law. He shall however be governed according to the terms and conditions of the lease and not according to the provision of this Act.
a) Who is Bhumidhar ?- bhumidhar is of the highest type of tenure holder, his interest in the holding is permanents heritable and transferable. He is a peasant proprietor in all respects.
Every person belonging to any of the following classes become bhumidhar-
I. An intermediary (Zamindar) whether bigger or smaller in respect of his khudkasht, unlet sir and grove land.
II. Smaller intermediary who belonged to the disabled class in respect of his let sir as well.
In relation lands intermediaries (zamindars) are classified into two biggest and smaller interment . if the sir land was in their personal cultivation immediately before the date of vesting they become bhumidhars of their un let sir whether they belonged to the class of bigger intermediaries of smaller intermediaries. Intermediary paying up to Rs.250/-as Land Revenue (or Rent) or up to Rs.25 as Local rate was classified as smaller. If the annual land Revenue (or Rent assessed was of more then Rs.250/- or local Rate of more than Rs.25/- the intermediary was categorized as bigger. In case of let sir lands the Act discriminates between bigger intermediaries and smaller intermediaries. Bigger intermediaries lost their rights in their let sir lands and their sir lands passed to the tenants. But the smaller intermediaries become bhumidhars of their let sir lands also provided they were disabled persons(as enumerated U/S.157 (1).
III. A permanent lessee in Avadh in respect of land in his personal cultivation or held as a grove.
IV. A fixed rate tenant – the fixed rate tenant was found in the districts of Varanasi division and in Azamgarh and basti districts S.23 of the U.P. Tenancy Act, 1939 reads:
i. When in Agra any land in district or a portion of a district which is permanently settled at the same rate of rent such tenant shall have a right of occupancy at that rate.
ii. Such tenant shall be called a fixed rate tenant”
“Sharah muwaiyan kashtkar in revenue paper means fixed rate tenant and not the permanent tenant” as it was wrongly described by Justice R.R.K. Trivedi in bhorik Vs Dy. Director consolidation. 1992 R.D. 129.
The fixed rate tenant was the superior most tenant. His interest in the holding was permanent heritable and transferable. He could not be ejected on any ground whatsoever. He had the right to grant lease make improvements use lands for any agricultural or non agricultural purpose. Cultivator holding under him was a subtenant and not a tenant in short his right were even superior to present bhumidhar. Devolution to the holding was holding was governed by personal law.
V. A Rent Free Grantee- note for ans pl see point no.19 under Q.no. 5
VI. An Occupancy tenant, or a hereditary tenant or tenant of sir land or patta dawami or patta istamrari possessed the right the transfer the holding by sale –the word patta dawami means lease for ever and “patta istamrari”means lease for ever and patta istamrari means Permanent lease” “ Tenants of sir lands whom the sir lands were let forever or permanently and right to transfer by sale was also given, Become bhumidhars thereof.
Occupancy tenancy was created by the continuous possession of land for a period of 12 years. In Avadh the right of occupancy could be created by prescription or by conferment by the zamindar in Agra the Agra tenancy Act 1926 provided for the conferment of occupancy right by the zamindar. When the occupancy right was conferred by the zamindar the right ot transfer the holding by sale was also generally given to the occupancy tenants. Occupancy tenants giving the right to transfer the holding by sale become bhumidhars. Occupancy tenants having no such right became sirdars only.
VII. A Grove Holder-
VIII. Every person who had deposited dasguna (ten times) of his rent under the U.P.Agricultural Tenants (Acquisition of privileges) Act , 1949 and has obtained a declaration under the said Act in respect of his holding.
IX. Every intermediary ,bigger or khudkasht land allotted to persons in lieu of maintenance allowance.


Summarize in brief the salient features of U.P. Zamindari Abolition and Land Reforms Act, 1950.

Salient Features of the Act.-The salient features of the U.P. Zamindari Abolition and Land Reforms Act,1950 are as under:-
1. Abolition of zamindari System- The Act abolishes the zamindari system which involved intermediaries between the state and cultivators., with effect from the “date of vesting ”i: e:July1, 1952.All the rights, interests and titles of intermediaries vested in the state of Uttar Pradesh. Zamindars were divested of their rights not only in the upper portion of the land but also in the sub-soils.
2. Payment of Compensation- The Act provides that all Zamindars (intermediaries) whose rights, title of interest in any estate are acquired are entitled to get compensation. The compensation is to be paid to them equal to eight times of their net assets. In awarding compensation, no distinction is made between the bigger intermediary and the smaller one, between the main Zamindar and the Thekadar and between natural person and artificial person like waqfs, trusts and endowments.
3. Payments of Rehabilitation Grant- Besides the compensation, Act also provides for payment of Rehabilitation grant. Thekadar are not entitled to this grant . Thus, Zamindars paying annual land revenue up to Rs.10,000 are entitled to both compensation and rehabilitation grant. Compensation is payable at the uniform rate of eight times of the net income (assets), but rehabilitation grant is payable on the graded rates ranging from one to twenty times of the net income. The grant is largest for the low incomes and smallest for those with comparatively large incomes.
4. Cultivating Rights Maintained- it may be noted that “he who cultivates the land should be the owner of it” was the underlined policy of the land law. This policy has been fully enshrined in the act. The Act maintained the cultivating rights of every person, whether he be a Zamindar a Thekadar a mortgage of an estate a tenant of a sub-tenant. Zamindars retained their unlet sir and khudkasht land in the status of tenure holder and become Bhumidhar of such land. Similarly the tenant of sir land and the subtenant become adhivasi. Thus all persons continued to retain possession of the lands they were cultivating.
5. Land-tenure System Simplified- Prior to the enforcement of the U.P. Zamindari Abolition & L.R. Act, there were fourteen varieties of land tenures all complex and bewildering. The Act substituted and classified them into three classes of tenure these were Bhumidhar, sirdar and Asami.
Bhumidhar has transferable permanent and heritable right in land. Sarder’s right is permanent and heritable. Asami had only tenure, viz. adhivasi . this fourth tenure was short lived , because in October, 1954 all adhivasi were made sirdar.
6. Prohibition of letting- with the object that the zamindari system may not spread its tentacle again, tenure holders are prohibited from letting out the whole or part of their holdings for any period whatsoever. If tenure holders let his land his right shall come to an end. Exceptions are however given on humanitarian grounds to persons suffering from mental or physical infirmity of person under legal disability and who are unable to cultivate the land personally. Such persons are woman minor idiot lunatic blind student and persons in detention or imprisonment vide.
7. Prohibition for the Accumulation of land- according to S.154(1) in future no tenure holder with his her spouse and minor children can acquire by purchase or gift land the result of which he becomes entitled land exceeding 12.5 acres in the aggregate. To avoid concentration of land in the hands of a few persons it the principle behind this prohibition. Persons having more than 12.5 acres of land shall retain their holdings but they cannot have any other land by purchase by gift.
8. Prohibition for the Creation of Uneconomic holding- The Act prohibits the court to divide the holding (or holdings) the area of which is 31/8 acres. Whenever in a suit for division the court finds that the aggregate area of land to be divided does not exceed 31/8 acres the court shall instead of proceeding to divide the land direct the sale of the same and distribution of the sale proceeds in accordance with the respective shares of the parties.
9. Uniform Rule of Succession- The Act removes not only the intermediaries from land law but also the religions. Now on the death of a tenure holder his interest in the holding shall devolve to heirs enumerated U/S. 171 to 175, and not to personal law heirs. This rule of succession is applicable to all the tenure holders, whether he is a Bhumidhar, sirdar or an Asami and whether he is a Hindu a Muslim or a person profession religion other then Hindu and Muslim.
10. Establishment of village Republics- Prior to the enforcement of U.P.Z.A. & L.R.A there were two institutions Gaon Sabah’s and Gaon Panchayats which were already established under the U.P. Panchayat Raj Act, 1947. This act established two more institutions, viz Gaon Samaj and Land Management committee. All the estates vested in the state Government were later on vested in the Gaon Samaj (Now Gaon sabha) and were to be managed by the land management committee the special executive body of the Gaon Sabha. All lands of common utility , such as abadi sites, Gaon Sabha. All lands of common utility such as abadi sites. Pathways waste land fisheries village forests this makes the village a small republic. A co-operative community is intended to facilitate economic and social development and to encourage the growth of social responsibility and community spirit.
11. Wells, trees and Buildings settled with the existing owner thereof- all wells trees in the abadi and all buildings situated in the zamindari estate allowed to be remained in the possession of existing owners or occupiers thereof, and it would be seemed to be settled with them as owners thereof. The site of wells or the buildings with area appurtenant thereto was also deemed to be settled with the owners of wells or buildings irrespective of his being a zamindar tenant or a non –tenant.


What were the reasons for the abolition of Zamindari system in U.P. ?

Reason for the abolition of Zamindari system according to the U.P Zamindari abolitions Committee Report, the following are the most important causes which led to the passing of the U.P.Z.A & L.R. Act, 1950:-
1. Abolition of Zamindari system was Necessary for increasing Agricultural Production –It may be noted that there exists an intimate relationship between land – tenures and agricultural production and the latter cannot be materially improved without mending the former . The peasant will not work to his full capacity nor will he invest his resources in improving his land unless he is certain that he will enjoy fruits of his labour and the benefits accruing from the investment. Under the zamindari system, peasants were not recognized as owner of the land. In most cases tenants could be ejected by the zamindars who were rent-receiving non-cultivating but still the owners of the land .The zamindar had the right to cultivate the land assiduously or indifferently .The zamindar (landlord) had the right to keep the land idle. He had a right to fix initially any rent he pleased but after the expiry of ten years the rent becomes liable to enhancement or abatement .In certain cases he had right to eject the tenants thus the cultivators had no fixity of tenure and fixity of rent. This defective land system was one of the causes of low productivity of agriculture in India during British period. Thus in order to increase the agricultural production it was necessary to remove the intermediaries who were parasites racketeers operators of the tenantry and the source of all the ills of rural society.
2. Everybody must work- The concept that who does not make a return in the share of produce or social service equivalent to or more than what he consumes is a drone and drag on social and economic progress . Every section of people must perform a definite economic function .The various classes of intermediaries functioning as rent-receivers whether as zamindars or taluqdars or under-proprietors or other subordinate holders, did nothing to improve the land and left the land and the tenantry where they were and indeed in a plight worse than before. In order to make everybody work it was desirable to remove the zamindars.
3. The zamindari-system was uneconomical to the state- it may be noted that in order to collect Rs. 682 lakhs as land-revenue and Rs. 71 lakhs as local rates the state forwent no less than Rs. 1000 lakhs in maintaining the landlord-system for the collection for its dues .None but a most extravagant person would employ an agent which costs him about one and a half times the amount collected. Moreover the land revenue received by the state from the zamindars (landlord) was less than 7 crores of rupees whereas the rent received by the zamindars from tenants amounted to 18 crores of rupees thus zamindars appropriated more than 11 corers of rupees annually. Thus in order to increase the state revenue, the abolition of zamindari become necessary.
4. Landlordism was British evil- It may be noted that the zamindar class was created as a social base by the British to help them in consolidation and maintaining their rule and acted as a check on progressive forces. History tells that in Avadh after the first independence war of 1857, the estates (taluqas) were given to those who had given shelter to English people during the revolution or who had handed over the freedom fighters to the British Government .Thus zamindars were granted lands as a bakshish (reward) for their act, which may be called a treachery to the nation therefore the abolition of zamindari system was necessary to prevent any further accrual of benefit to treacherers descendants since the evil of landlordism was a British creation hence it must end with the British rule of India.
5. Zamindars have betrayed the trust reposed in them- The Britishers in India had expressed a pious hope that the landlord would look after the welfare of the tenant and improvement of the soil. That he would act like an English landlord who provides homestead and improves the quality and fertility of land. But these hopes have however remained expressions of pious wishes. Instead of improving the condition of the cultivator and the soil the landlords have been responsible for the steady impoverishment of both . They have indulged in rack renting and illegal exactions. While on the one hand, the state share in the rent collected has progressively decreased, the margin of profit left to the landlords has increased.
6. Further Continuance of Zamindari may have Led to a Bloody Revolution- It may be noted that the zamindari system had reached a stage when it would not have been tolerated by the peasantry any longer without putting our national economy and social security in danger. The zamindars had always been oppressors of the tenantry and the source of all the evils of rural economy. The age –long simmering discontent occasionally bursting into acts of open defiance and sometimes of violence in our state had reached a critical stage. The discontent might develop into revolt and our social security might be threatened by the outbreak of violence. If the zamindari abolition was held over for a few years . Abolition might mean expropriation without compensation and quite possibly bloodshed and violence.
The system of Zamindari was believed to have become obsolete and out dated institution hence discredited everywhere in the world. All through the world there was a wave flowing a process operating to break the larger estates and handing over land to landless labourers in order to solve the problem of poverty. In the context of these world developments ,it was sheer folly for the zamindars in India to insist upon the inviolability of their rights.


Discuss the provision pertaining to “Payment of Purchase Price by the Tenant” under the Agriculture Tenancy Act, 1964

Under Section 18 of the Agriculture Tenancy Act 1964, the heading is procedure for taking possession,  the details of payment of purchase price by the tenant has been explained in details as follows:

 

Special Rights and Privileges of tenants

 

Sec.18A: In accordance with this section all Tenants deemed to have purchased lands on tillers’ day;

  • On the tillers’ day, every tenant shall, subject to the other provision of this Act, be deemed to have purchased from his land lord the land held by him as a tenant and such land shall vest in him free from all encumbrance subsisting on the day.
  • In case where a tenant, on account of his eviction from the land by the land-lord before the tillers’ day is not in possession of the land on the said day, but has made or makes an application for possession of the land under section 18 within the period specified therein, then, if the application is allowed by the Mamlatdar and passed order in favour of tenant or, as the case may be, in appeal before the collector or in revision before the Administrative Tribunal, he shall be deemed to have purchased the land on the day on which the final order allowing the application is passed by Mamlatdar.
  • where a tenant referred to in above sub-section (2) has not made an application for possession within the period specified under section 18 or the application made by him is finally rejected under this Act, and the land is held by any other person as tenant on the expiry of the said period or on the date of final rejection of the application, then such other person shall be deemed to have purchased the land on the date of the expiry of the said period or, as the case may be, on the date of the final rejection of application.
  • If a tenant is not in possession of the land on the tillers’ day on account of his being dispossessed otherwise then in the manner provided in section 11 and the land is; (a) in possession of the landlord or his successor in interest; and (b) not put a non-agriculture use, the Mamlatdar shall notwithstanding anything contained in this Act, either suo moto or on the application of the tenant, hold an inquiry and direct that such land shall be taken from the possession of the landlord or, as the  case may be, his successor in interest and shall be restored to the tenant and the provisions of the Chapter shall, in so far as they may be applicable, apply thereto, subject to the modification that the tenant shall be deemed to have purchased the land on the date on which the land is restored to him. -;Provided that the tenant shall not entitled to restoration under this sub-section unless he undertakes to cultivate the land personally. Explanation- In this sub-section ‘successor-in-interest’ means person who acquires the interest or right by testamentary or  disposition or devolution on death.
  • In respect of the land deemed to have been purchased by a tenant under sub-section (1)—(a) the tenant-purchaser shall be liable to pay to the former landlord the purchase price; and (b) the tenant-purchaser shall be liable to pay to the Government the dues, if any, from the tillers’ day.

 

18B. Right of tenant to purchase land where he is minor etc—

  • Notwithstanding anything contained in section 18A, where the tenant is a minor or a widow or a person subject to mental or physical disability or a serving member of Armed Forces, the right to purchase land under that section may be exercised—(a) by the minor within one year from the date on which he attains majority (b) by the successor in title of the widow within one year from the date on which her interest in the land ceases to exist; (c) within one year from the date on which the mental or physical disability of the tenant ceases to exist; (d) within one year from the date on which the tenant ceases to be a serving member of the Defence Forces; Provided that where a person of any such category is a member of a joint family, the provisions of this sub-section shall not apply it at least one member of the joint family is outside the categories mentioned in this sub-section, unless before the tillers day the share of such person in the joint family has been separated by metes and bounds and the Mamlatdar on inquiry is satisfied that the share of such person in the land is separated having regards to the area, assessment, an classification  and the value of the land, in the same proposition as the share of that person in the entire family property.
  • A tenant desirous of exercising the right conferred on him under sub-section (1) shall give an intimation in that behalf to the landlord and the Mamlatdar withinin whose jurisdiction the land is situated in the prescribed manner within the period specified in that sub-section.
  • The Provision of section 18A and section 18C to 18I shall so far a may be applicable apply to such purchase.

 

18C Mamlatdar to issue notices and determine price of land to paid by tenant;

  • As soon as may be after the tillers’ day the Mamlatdar shall publish or cause to be published a public notice in the prescribed form in the Official Gazette and also in such other manner as may be prescribed calling upon—
    • all tenants who under section 18A are deemed to have purchased the land
    • all landlord of such land and
    • all other persons interested therein to appear before him on date specified in the notice
  • Notwithstanding anything contained un the sub-section (1) the Mamlatdar may, on his own motion or on an application from any person who has been called upon to appear before him under sub-section (1) give an opportunity to appear before him on any subsequent day, time and place other than that specified in the public notice under sub-section (1) to—

 

  • such tenants or such persons claiming to be tanants
  • such landlord and other interested parties, who had appearing before the Mamlatdar inresponse to notice published under sub-section (1)

 

  • The Mamlatdar shall record in the prescribed manner the statement of the tenants whether he is or is not willing to purchase the land held by him as a tenant
  • Where any tenant makes a statement that he is not willing to purchase the land , the Mamlatdar shall by an order in writing declare that such tenant is not willing to purchase the land and that the purchase is ineffective

 

Provided that if such order is passed in default of the appearance of any party, the Mamlatdar shall communicate such order to the parties and any party on whose default the order was communicated to him apply for the review of the same

 

(5)   If a tenant is willing to purchase, the Mamlatdar shall, after giving an opportunity to the tenant and the landlord and all other persons interested in such land to be heard and after holding an inquiry determine the purchase price for such land in accordance with the provision of section 18D

 

(6)In the case of a tenant who is deemed to have purchased the land on the day subsequent to the tellers’ day, the Mamlatdar shall, as soon as may be after such day, determine  the price of the land

 

18D. Purchase price payable to land lord;

  • The purchase price payable by a tenant to the landlord in relation in relation to the land which has been deemed to have been purchased by the tenant under section 18A shall be the amount indicated in column 2 of the Table below in respect of the categories of land specified in the corresponding entry in column 1 thereof

 

 

S NCategory of land

 

Purchase Price (in rupees) per hector
1Garden consisting primarily of

 

a] Coconut trees

 

b] Arecanut trees

 

c] Mango trees

 

d]Cashew trees

 

 

 

4,000.00

3,000.00

2,500.00

1,600.00

 

2 

Rice Land

 

a] Kher

 

b] Khazan

 

c] Morod

 

Wet land where sugarcane cultivated

 

 

 

4,000.00

 

3,600.00

 

1,600.00

 

2,500.00

 

 

 

18E. Mode of Payment of purchase price by tenant:

  • On the determination of the purchase price by the Mamlatdar under section 18C the tenant shall deposite the purchase price with the Mamlatdar in the manner provided in this section.
  • The tenant shall have the option to deposit the purchase price either in lumsum or in ten equal annual instalments
  • The first installment of the purchase price or where the purchases price is payable in a lumsum under sub-section (2) the lumsum shall be paid by the tenant within a period of six month from the date of passing of order of the Mamlatdar under section 18C
  • The second or subsequent installment of the purchase price shall be paid within a period of one year from the date on which the previous installment was due.
  • Where the lumsum payment or any installment of the purchase price has not been deposited on the due date , the amount in default shall carry interest at the rate of six per cent per annum.

 

18F. Amount of purchase price to be applied towards satisfaction of debts—

  • The Mamlatdar shall in an inquiry held under section 18c determine any encumbrances lawfully subsisting on the land the tillers’ day.
  • If the total amount of encumbrance is less than the purchase price determined under that section—(i) where the purchase price is paid in lumsum, it shall be determine from the purchase price and the balance paid to the former landlord. (ii) where the purchase price made payable in installment, the Mamlatdar shall deduct such amount from such installment towards the payment of such encumbrance; Provided that where under any agreement, award. decree or order of a court under any law the amount of encumbrance is recoverable in installment, the Mamlatdar shall deduct such amount as he deemed reasonable from the installments so payable
  • If the total amount of the encumbrance is more than the amount of determined the purchase price in lumsum of the installments, as the case may be, shall be distributed in the order of priority and if any person has to right to receive maintenance or alimony from the profit of the land the Mamlatdar shall also make deductions for payment out of the purchase price.
  • Nothing in this section shall affects the rights of the holder of any such encumbrances to proceed against the former land lord in any other manner or under any other law for the time being in force.

 


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