HOW CYBER CRIMINALS WORK www.lawtool.net Cyber crime has become a profession and the demography of the cyber criminal is changing rapidly with the type of organized gangsters who are more traditionally associated with drug-trafficking, extortion and money laundering. The question of how to obtain credit card/bank account data can be answered by a selection of methods each involving their own relative combinations of risk, expense and skill. The probable marketplace for this transaction is a hidden IRC (Internet Relay Chat) chat room. Gaining control of a bank account is increasingly accomplished through phishing. All of the following phishing tools can be acquired very cheaply. Coders The cyber criminals works in the following ways: They are the comparative veterans of the hacking community. With a few years' experience at the art and a list of established contacts, ‘coders’ produce ready-to-use tools (Trojans, mailers, custom bots) or services (such as making a binary code undetectable to AV engines) to the cyber crime labour force – the ‘kids’. Coders can make a few hundred dollars for every criminal activity they engage in. Kids It is called so because of their tender age, most are under 18. They buy, trade and resell the elementary building blocks of effective cyber-scams such as spam lists, PHP mailers, proxies, credit card numbers, hacked hosts, scam pages etc. ‘Kids’ will make less than $100 a month, largely because of the frequency of being ‘ripped off’ by one another. Drops These individuals convert the ‘virtual money’ obtained in cyber crime into real cash. Usually located in countries with lax e-crime laws (Bolivia, Indonesia and Malaysia are currently very popular), they represent ‘safe’ addresses for goods purchased with stolen financial details to be sent, or else ‘safe’ legitimate bank accounts for money to be transferred illegally, and paid out of legitimately. Mobs These are professionally operating criminal organization which combines all of the above covered functions. Organized crime makes particularly good use of safe ‘drops’, as well as recruiting accomplished ‘coders’ onto their payrolls.

INFORMATION ON CYBER CRIME www,lawtool.net INFORMATION ON CYBER CRIME In the beginning of certain development era, people were well motivated to attain a good progress in existing technological activities. Since the start of civilization period, the man has been always motivated by need to make better progress in the existing technologies. According to the Department of Defense in America in 1969, the design of parallel super network known as ARPANET (Advanced Research Project Agency) was commissioned. It consisted of more than 50 computers that were connected with web links for the purpose of military operations. These networks steadily grew and then it was called online Internet activity for sharing business regime where communication was done in both modes Cyberspace. Cyber law is a common term which refers to legal jurisdiction and other ways of preceding regulatory aspects in the internet. It is a constantly generic process. Whenever an internet development strategy follows, numerous amendments are enforced while it is developed, consequently numerous legal issues are also gets developed by illegal activists. In the Internet, Child Pornography is one of the serious Cybercrime and online pedophiles track to indulge children into sex activities using Internet. The traffic hazards, allotment in distributions, dissemination of obscene material, and posting includes pornography with all its filthy exposure constitutes the most important known criminal cyber offence today. This is one which threatens to challenge the development of technology of the younger creation in cybercrime and also leaving permanent scar and damage on the younger generation, if can’t restricted. Cyber annoyance is a unique form of harassment in cybercrime. Various categories of harassment take place in cyberspace or with the use of cyberspace to attain criminal offence. Harassment can be sexual, religious, racial or other. People who involve perpetuating such harassment are guilty of cybercrimes. Cyber harassment brings us to another related offending area of violation of privacy of netizens. Another Cybercrime against persons is Cyber stalking. Harassments and Stalking are problems that many people especially like women face in their real life. Another category of Cybercrimes is Cybercrime against property in diverse forms. These offences include unauthorized computer trespass through cyberspaces,computer destruction, and broadcast of injurious programs and unofficial tenure of computerized data. Hacking and cracking are in the midst of the largest Cybercrimes known until this day. Hacking is entering a computer system without knowledge and consent of the authorized person, tampering with the precious and confidential data or information. Using one's own programming abilities and also various programmers with the intention to gain access to computer or network through unauthorized access are very serious crimes. Likewise, the dissemination and creation of harmful computer programs or other malicious virus which causes irreparable harm to computer systems is another category of Cybercrime and this Software piracy is also another distinct variety of Cybercrime. It is perpetuated by many people of cyber world for online who distributes unauthorized and illegal pirated copies of software products. Another category of Cybercrime is against administration. Cyber Terrorism is a kind of crime which is distinct in this category. The increase of Internet has shown that the standard of Cyberspace is used by either group or individual to threaten the worldwide governments and to frighten the citizens of the country. This crime manifests when an individual "cracks" a government or military maintained website. The cyber crime may be broadly classified into three groups . They are 1. Crime against the Individuals a. Person b. Property of an individual. 2. Crime against Organization 3. Crime against Society a. Government b. Firm, Company and Group of Individuals. The following are the crimes that have been committed against the followings group: AGAINST INDIVIDUALS a. Harassment via electronic mails b. Dissemination of obscene material. c. Cyber-stalking. d. Defamation. e. Indecent exposure. f. Cheating. g. Unauthorized control/access over computer system. h. Email spoofing. i. Fraud. AGAINST INDIVIDUAL PROPERTY a. Computer vandalism b. Transmitting virus. c. Netrepass. d. Unauthorized access / control over computer system e. Intellectual Property crimes f. Internet thefts AGAINST ORGANIZATION a. Unauthorized access / control over computer system. b. Cyber terrorism against the government organization. c. Possession of unauthorized information. d. Distribution of Pirate software. AGAINST SOCIETY a. Child pornography c. Indecent exposure of polluting the youth financial crimes. d. Sale of illegal articles. e. Trafficking. f. Forgery. g. Online gambling. The Department of Justice for computer crime categorizes the use of computer in cyber crime into three ways as follows: The computer as a weapon - using a computer as a tool to commit "conventional crime" in the physical world (such as illegal gambling or fraud). The computer as a target - attacking the other computers (spreading viruses is an example). The computer as an accessory - using computer a "fancy file cabinet" used to store an ornament like illegal information.

Silent feature of information technology act 2000 Legal recognition to e-commerce Recognize record kept in electronic form Provide legal recognition to digital signature Cyber law appellate tribunal has been set up to hear appeal against adjudication authority No application to negotiable instrument power of attorney trust will be will end any contract for sale conveyance of immovable property act applies to any cyber offence for contravention committed outside India by the person irrespective of his/ her nationality As provided under section 90 of the act the state government may by notification in official gazette make rule to carry out the provision of the act SEBI had announced that reading to security on the internet will be valid in India Act amendment Act 2008. AIM AND OBJECT OF THE INFORMATION TECHNOLOGY ACT 2000 main aims and objective of the information technology act 2000 suitably amend existing law in India to facilitate E-Commerce provide legal recognition of electronic records and digital signature and electronic data interchange EDI and business contract regulates body to supervise certifying authority issuing Digital Certificate /digital signature certificate and prevent misuse of e-business transactions related e-governance electronic records and digital signature and to encourage the use and acceptance of electronic records and digital signature in government officials and agencies. to make consequently amended in Indian Penal Code 1860 and the Indian Evidence Act 1872 provided to necessary changes in various provision which deals with the offence relating to document and paper-based transaction tournament to amend the Reserve Bank of India Act 1934 and bank and the banker book Evidence Act 1891 to make a law tune with model law and electronic, United Nation commission and international trade law UNCITRAL adopted by the General Assembly to resolution on 30 January 1997. VARIOUS AUTHORITY UNDER ITS ACT CERTIFYING AUTHORITIES a system of digital signature of an electronic communication per suppose that the sender must create a public-private key pair the private key which kept confidential is used by the signer to create the digital signature the public which more widely known as it is used by relying party to verify the digital signature to associate a key pair with the certifying prospective signer the certifying authority issue the certificate to the subscribe section 35 certifying authority section 17to 30 expected reliable identify person applying for the signature key certificate verifying digital signature application of the certifying authority are also set out in Act of section 34 -34. APPOINTMENT OF THE CONTROLLER of certifying authorities appointed by the central government by issuing a notification to this effect in the official get Deputy controller and the assistant controller may be appointed as a central government team deems fit subject to direct control and direction of the central government supervision and control. FUNCTION OF CONTROLLER important function in it at the controller of the certifying authority role in public infrastructure is indispensable he acts as a central controlling body. Exercising supervision over the activities of the certifying authority. Certifying public keys of the certifying authorities. Standard to maintain. POWER OF THE CONTROLLER the controller of the certifying authority is a chief administrator and act as a Watchdog for the certifying authority. · POWER TO FOREIGN CERTIFYING AUTHORITIES · POWER TO ISSUE LICENCE · POWER TO RENEW LICENCE · POWER TO SUSPEND OR REVOKE LICENCE · POWER TO DELGATE AND INVESTIGATE · POWER TO HAVE ACCESS THE COMPUTER AND DATA · POWER TO ISSUE DIRECTION · POWER TO DECRYPT INFORMATION ADJUDICATION OFFICER Adjudication officer the central government has power to appoint one or more adjudication officer the adjudication officers of pointed shall not be below the rank of director to the Government of India or an equivalent officer of the state government. Experience in the field of Information Technology and legal or judicial experience as may be prescribed by the central government. adjudication officer shall conduct any enquiry will be prescribed by the central government and where more than 1 adjudication officer are appointed by the central government the adjudication officer shall not make any final decision. POWER OF THE EDUCATION OFFICER same power as vested in a civil court under the code of procedure act 1908 summoning examine him on oath. Discovery and production of document. Receiving evidence and affidavits. Issuing Commission examination of witnesses or documents. Reviewing its decision dismissing an application for default. REGISTRAR POWER FUNCTION AND DUTIES register of the cyber appellate Tribunal is the custodian of the record of the Tribunal. Presiding officer of the Tribunal he shall exercise all power assigned to him under the rule of by the presiding officer of Tribunal .presiding officer following power and duty namely .receive all applications .decide all question arising out of application present to the Tribunal. Direction to the Tribunal fixe the date of hearing .order grant of a copy of documents. All matter relating to the service of notice. Receive and dispose of the application by the party from Return of the document. DUTY OF THE CERTIFYING AUTHORITIES the nature of the internet technology and the transaction over it have assigned a pivotal role of certifying authority. Meticulously and diligently follow procedure every certificate authority has to maintain a trustworthy sister that means that itself make use of hardware software and procedure that are secured from intrusion and misuse CERTIFYING AUTHORITY MAINTAINED TRUSTWORTHY SYSTEM information originality of data. Availability of the information and the sources maintain and protect the system ensure that system security and operation should not be e made dependent upon a single person to prevent loss in cases any eventually failure of the primary security measures. · system security depend upon the nature of the job certifying authority off in the time Stamping service me bi need to trust for the System different from the one required by the certifying authorities showing the digital signature certificate. THE CYBER REGULATION APPEALLATE TRIBUNAL Section 48 ESTABLISHMENT OF CYBER APPELLATE TRIBUNAL the central government shall by notification establish one or more appellate Tribunal to be known as the cyber regulation appellate Tribunal cyber appellate Tribunal main exercise solution jurisdiction SECTION 49 COMPOSITION OF CYBER APPELLATE TRIBUNAL a cyber Appellate Tribunal shall consist of one person only appointed by notification by central Govt SECTION 50 QUALIFICATION FOR APPOINTMENT AS PRESIDING OFFICER of the cyber appellate Tribunal judges of High Court are member of the Indian legal service holding or has held a post of grade one of the service for the last 3 years SECTION 51 TERM OF OFFICE term of the office 5 years for age of 65 years whichever is early SECTION 54 -REGISTRATION AND REMOVAL writing under his hand address to Central Government resign his office .Central Government to relinquish his office Sooner continued to hold office until to expiry of 3 months from the date of the notice .removed from his office except by the order by the central government on the ground of proved misbehavior or incapacity after an enquiry made by judges of the supreme court. .Central Government maybe rules regulate the procedure for the investigation of his misbehavior or incapacity of the aforesaid presiding officer. SECTION 57 APPEAL TO CYBER APPELLATE TRIBUNAL any person aggravated by an order made by the controller for adjudicating officer under the act may prefer and appeal to Cyber Appellate Tribunal having jurisdiction in the matter. No appeal shall cyber appellate Tribunal from and order made by an adjudicating officer with the consent of the party. every appeal under the subsection 1 shall be filed within the period of 45 days from the date on which copy of the order made by controller or adjudication officer is received by the person aggravated and it shall be in such form and be accompanied by such fee as may be prescribed .appeal after the expiry of the said period of 45 days if it is satisfied that there was a sufficient cause for not filing within that period. SECTION 58 PROCEDURE AND POWER OF THE CYBER APPELLATE TRIBUNAL (1) The Cyber Appellate Tribunal shall not be bound by the procedure laid down by the Code of Civil Procedure, 1908 but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Cyber Appellate Tribunal shall have powers to regulate its own procedure including the place at which it shall have its sittings. (2) The Cyber Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a civil court under the Code of Civil Procedure, 1908, while trying a suit, in respect of the following matters, namely – (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents or other electronic records; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) any other matter which may be prescribed. Every proceeding before the Cyber Appellate Tribunal shall be deemed to be a judicial proceeding within the meaning of sections 193 and 228, and for the purposes of section 196of the Indian Penal Code and the Cyber Appellate Tribunal shall be deemed to be a civil court for the purposes of section 195 and Chapter XXVI of the Code of Criminal Procedure, 1973. 59. RIGHT TO LEGAL REPRESENTATION.-The appellant may either appear in person or authorise one or more legal practitioners or any of its officers to present his or its case before the Cyber Appellate Tribunal. 60 Limitation The provisions of the Limitation Act, 1963, shall, as far as may be, apply to an appeal made to the Cyber Appellate Tribunal. 61 Civil court not to have jurisdiction No court shall have jurisdictions to entertain any suit or proceeding in respect of any matter which an adjudicating officer appointed under this Act or the Cyber Appellate Tribunal constituted under this Act is empowered by or under this Act to determine and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act. 62 Appeal to High Court Any person aggrieved by any decision or order of the Cyber Appellate Tribunal may file an appeal to the High Court within sixty days from the date of communication of the decision or order of the Cyber Appellate Tribunal to him on any question of fact or law arising out of such order : Provided that the High Court may, if it is satisfied that the appellant was prevented by sufficient cause from filing the appeal within the said period, allow it to be filed within a further period not exceeding sixty days.

CRYPTOGRAPHY-DIGITAL SIGNATURE AND PKI www.lawtool.net MEANING OF DIGITAL SIGNATURE The cryptography a digital signature for digital signature scheme is a type of asymmetric cryptography used to simulate the security signature schemes normally give to algorithm one of the signing involving the users secret key and one for verifying signature involving the public key the output of the signature process is also called a digital signature like written signature are used to provide authentication of the associated input usually called a message maybe anything form of electronic mail to a contract or simple message sent in a more complicated cryptographic protocol public key infrastructure PKI digital signature is one type of electronic signature and electronic data that carry in intent signature but not all electronic signature is a digital signature. United states and in the European Union electronic signature have a legal signification. The electronic signature does not always make clear their applicability towards Cryptography digital signature. DIGITAL SIGNATURE CERTIFICATE DSC the E-form is required to be authenticated find the authorized signatories using a digital signature as defined under the information technology act 2000 electronic signature duly issued by the certifying authority that shows the authority of the person signing the same. it is an electronic equivalent of the written signature submission with the MCA is required to obtain a digital signature certificate for MCA 21 following four types of users are identified as a user of digital signature and required to obtain digital signature certificate 1) Government employees 2) professional CA CS CWA and lawyers 3) authorized signatories of the companies /MD,directors, managers or security .4) representative of bank and financial institution .a person requiring a digital signature certificate can be approached any of the certifying authorities.requirement for the digital signature certificate physical documents are signed manually and electronic document for example if forms are required to sign digitally using a digital signature certificate issuing authority license certifying authority CA issue the digital signature section 24 of the Indian IT Act 2000 time required to issue a digital signature certificate time taken by CA to issue a digital signature certificate may be vary from 3 to 7 days validity period of digital signature certificate 1 or 2 years legal status of digital signature are legally admissible in court of law as provided under the provision of IT Act 2000 digital signature as per information technology act 2000. Digital signature recognized as a valid method of authentication. Asymmetric cryptosystem and Hash Function verification of electronic record is done by the use of public-key the private key and the public key are unique to the subscribe and Institute off Function key pair. electronic governance legal recognition of electronic records the two main legal impediments of e commerce and legal governance were the requirement of recording and information of tangible medium of handwritten signature legal recognition of digital signature digital signature have been a legal reorganization by the IT Act 2000. These are now as good as orthodox signature on paper affixing and electronic signature to Electronic document is known now identical in law to placing a manuscript signature on paper writing authenticated by Means a digital signature affixed in such manner as may be prescribed by central government. Use of Electronic Record and Digital Signature in Government and Its Agencies Central Government Aim to Undertake an Ambitious Program of E-Government ELECTRONIC FORMS FOR E-FORMS MEANING OF E-FORM- an e-forms is only for Re-engineered conventional form notified and represent a document in electronic format for filing with the various authorities through the Internet. this may be either a form filed for the compliance or information purpose are an application seeking approval from the government, for example, filing return over the income tax via internet required e-forms generally e-forms are of PDF files which are operated by Adobe reader software. IMPORTANT POINTS REGARDING E-FORM an e -form is contain a number of compulsory fields, marked with the red colour stars which are required to fill in instruction kit are available for each e-form and e-form may be filed in either online or offline mode. BENEFIT OF DIGITAL SIGNATURE AUTHENTICATION - digital signature can be used to authenticate the source of message INTEGRITY - in many scenarios the sender and the receiver of a message may have a need to confidence that the message has not been altered during the transmission. SPEED - business no longer have to wait for a paper document to will send by courier contract are easily written completed and signed by all concerned party in a title amount of time no matter how far parties are geographical COST - using a postal courier service for a paper document is much more expensive compared to using a digital signature on the electronic document TRACKING - a digitally signed document can easily be tracked NO REPUDIATION - singing and electronic document digitally identify us the signatory and that cannot be related in it IMPOSTER PREVENTION - no one else can for your Digital Signature or submit an electronic document falsely claiming it was signed by you TIMESTAMP - by time stamping your digital signature you will clear known as when the document was signed DRAWBACK OF DIGITAL SIGNATURE - despite their usefulness digital signature do not alone solve all problem we might wish them to EXPIRY - all Technology product are a short shelf life CERTIFICATE - new Digital Certificate SOFTWARE- do verification software at a cost LAW - law regarding cyber law and Technology based issue are weak or even non existence COMPATIBILITY - most business today are embarrassing the idea of paperless office advantage of using them AUTHENTICATION OF ELECTRONIC RECORDS always concerned about the security confidential and integrity of the electronic record its authenticity of the addresses .any person interested in an executed commercial relationship over the internet will always be particular about, example who sent this message? when was it sent ,to whom was it sent through it received when was it received and did arrive in the same form in which is which it didn't have it reminded confidential Data security is the protection of data against the accidental or International destruction disclosure a modification computer security refers to technological safeguard and managerial procedure which can be applied to computer hardware programs and data to assure the organized Ascent and individual privacy of protecting CRYPTOGRAPHY practice and study encryption and decryption encoding data so that it can only be decoded by specified individual a system for encrypting and decrypting data is a Cryptosystem these usually involve algorithm for combining the original DATA PLAINTEXT with one or more keys number of Strings of characters known only to the sender and or recipient the resulting output is known as cheaper text. ENCRYPTION AND DECRYPTION is the scrambling of digital message in such a way that only the sender and receiver can read this message it is a fundamental mechanism for the many forms of security and is a very effective way of securing the content of electronic data even Julius Caesar use Cryptography and he used to shift by three methods replacing every alphabet by the third letter ahead of it secret key cryptography involve the use of one key and public key Cryptography involve the use of two keys in the case of Hash Function Nokia used encryption uses a court or a cheaper. SECRET KEY CRYPTOGRAPHY encryption can be private key or public-private key Cryptography and tell the coding and decoding of data with the same key for both the encryption and decryption data the key must be known by the sender and receiver location using private key encryption does provide good security because the receiver must have the key if it is to decrypt a message. THE OBJECTIVE OF CRYPTOGRAPHY Cryptographic Concerns Itself with Four Objectives · CONFIDENTIALITY · INTEGRITY · NON-REPUDIATION · AUTHENTICATION CONCEPT OF PUBLIC KEY INFRASTRUCTURE PUBLIC KEY INFRASTRUCTURE PKI is a set of hardware-software people policies and procedure need to create manage distribute use store and revoke Digital Certificate. Digital Certificate the user identity must be unique each CA domain. Under human supervision the PKI role that assures this binding is called the registration authority. METHOD OF CERTIFICATION Broadly Speaking There Are the Three Approaches to Getting This Trusted 1. certificate authority CA 2. Temporary certificate authority and single sign-on. 3. web of trust WOT and 4. simple public key infrastructure SPKI THE APPLICATION USES OF PKI Encryption and surrender authentication of email messages Encryption and authentication of documents Authentication of users to applications Secure communication protocols Mobile signature are an electronic signature that is created using a mobile device.

INTERNET SECURITY CONCEPT www.lawtool.net Security issue security is very important for information system personals since 1983 computing facility and information system they support have become increasingly accessible because the intention facility since confidential information is transferred or increasing traversed to modern network security privacy and authentication of information is the commonly discussed issue in e-commerce. Protection against a typical hacking attack ETHICS ISSUE OF INFORMATION TECHNOLOGY the ethical issue for computer users are mainly and helpful to focus on the just to as the listed below software piracy or are unauthorized access SOFTWARE PIRACY users are operating over the software without a license unauthorized duplication copying of the software is called a pirated software the use of pirated software is the violation of the IT Act 2000 from many year software piracy has taken many different forms primarily started as a CO workers illegally copy software from floppy disc and past legal copies to the friend. UNAUTHORISED ACCESS the other issues related to the ethics is unauthorized access of information in case of the information literacy campaign everyone has a right to known as the information but it must be the access from the authentic source intellectual skill to deal with information these are skill such as a reading writing reasoning and calculating this may be a task for education. SECURITY security refers to the protection of the system resource against the intentionally or accidentally disclosure destruction is the modification source is to infrastructure hardware-software application file directory data store in database unauthorized users are unable to misuse and authorized users. FIREWALL firewall most organization now depend on the Internet to undertake and enhance business transaction proper security measures need to be taken without which the internal network of the organization is too vulnerable to attacks this can lead to loss of confidential data of the critical service that would be very damaging for the organization. A firewall is a security mechanism to protect a Local Network from the threats that the network might face while interacting with other network a firewall can be hardware component of a software component or a combination of both it prevents the computers within one network domain from the come communicating directly with the computer in the other network domain. The main purpose of the firewall is to protect the computer of an organization for the unauthorized access some of the basic function of Firewall are SECURITY, AUDITING, USER AUTHORIZATION, NETWORK ADDRESS TRANSLATION NAT, IP MASQUERADING · SECURITY- Firewall prevents unwanted data from getting into the Local Network from the internet or from any other external network · AUDITING - firewall can be used to log the network traffic passing through it · USER AUTHORIZATION- user authentication is another functionality provide by firewalls · NETWORK ADDRESS TRANSLATION NAT –A firewall can be used for hiding the structure and content of the local network from the external users · IP MASQUERADING- IP masquerading is to the feature in which the client network use a single network interface to the interact with the server network client use IP address that are not attached to any computer TYPES OF FIREWALL all the data packets that enter into network must come through the firewall in order to maintain the security of the network. The type of Firewall used to various form network to network. The following are the various types of Firewall generally used PACKET FILTERING FIREWALL - packet filter Firewall are usually deployed on router. Primary Defence mechanism used in Firewall protection. Data pocket is checked based on a set of rules. CIRCUIT-LEVEL FIREWALL - circuit-level Firewall provides more protection than packet filtering firewall it is also known as the state full inspection fireworks a circuit-level firewall ensure that the user behind the firewall has access to the internet PROXY FIREWALL- a proxy Firewall protects all the client application running on a network from the internet by using the firework itself as a gateway. NETWORK ADDRESS TRANSLATION FIREWALL- the firewall that uses NAT completely conceal the true identity of the network behind the firewall so as to secure the network from the internet NEW IP addresses and port address translation (PAT) new port number Biometric biometric is concerned with the identifying a person based on his or her psychological or behavior characteristic example for biometric system include fingerprint and face eyes Iris or retina and speech recognition. Why are biometric secure 1. Unique unique character of individual the probability of two-person sharing the same biometric data is Virtually nil 2. Cannot be shared because a biometric property is true intrinsic property and individual 3. Cannot be copied biometric character are nearly impossible to Forge or spoof especially with the new technologies. 4. Cannot be lost a biometric property of individual. 5. Cannot be lost only in case of serious accident. 6. What is biometric system used for reliable user authentication is essential. EXISTING USER AUTHENTICATION TECHNIQUE INCLUDE somethings you know example password of pin code the issue is that many password is easy to guess and can also be easily forgotten something you have example car or key can be a lost stolen or duplicated something you know and have card + pin something u r example fingerprint hand Iris retina voice cannot lose them are unique for each individual and are difficult to Forge. INTERNET SECURITY PRODUCT SOFTWARE cybercrime is a profitable business to estimate very cybercrime is expected to extort as much as a trillion-dollar next year from the government business and the individual get more business government agency are entertainment company are making a left of online Access at a record pace. CRITERIA FOR INTERNET SECURITY PRODUCT internet protection the Internet security software application should be consistent reliable and proactive internet security detecting suspicious behaving applications protection but also privacy protection social network protection filter spam filter website rating and more security feature security feature include Parental Control password manager wants laptop tools and safe browsing security software that not only provides a variety of protection option but also the ability of customize the settings help and support nearly instant protection protection through online documentation.

HISTORY OF ENVIRONMENTAL PROTECTION IN INDIA www.lawtool.net The history of the evolution of law to handle pollution and other environmental problems in India can be studied under four periods; I. In ancient India. 2.In Medieval India; 3. During the British period; and 4. The post Independence period. .......... ENVIRONMENTAL PROTECTION IN ANCIENT INDIA Forests, Wild_life, and more particularly trees were held in high esteem and held a lace of Special reverence in HINDU theology The Vedas, Puranas, Upanishads, and other scriptures of the Hindu religion gave a detailed description of trees, plants and wild life and their importance to the people. The Rigveda highlighted the potentialities of nature in controlling the climate, increasing fertility, and improvement of human life emphasizing intimate kinship with nature. A considered trees as the abode of various gods and goddesses. Yajur Veda emphasized that the relationship with nature and animals should not be that f dominion and subjugation but of mutual respect and kindness. During the Vedic period, cutting of live trees was prohibited and punishment was prescribed for such acts. For example, Yajnayall6a, Smriti,, has declared cutting of trees and forests, as a punishable offence and has also prescribed a penalty of 20 to 10-Rani.2The Hindu society was thus conscious 'of adverse environmental effects caused by deforestation and the extinction of animal species. In Srimad Bhagavatam, it has been rightly pointed out that a man who with exclusive devotion offers respect to sky, water, earth, heavenly bodies, living beings, trees, rivers, and seas and all created being and considers -them as a part' of the body of the Lord attains_the state of supreme peace and God's grace. Yajnavalkya Smriti and Charak Samhita gave many instructions for the use of water for maintaining its purity. In addition to forests and other components of nature, animals stood to human beings in a relationship of mutual respect and kindness. Ancient Hindu Scriptures strictly prohibited the Wing of birds and animals. In yajur veda , it is said that no person should kill animals, but being helpful to all and by serving them, should obtain happiness -In ' Yalhavalkya Smriti it is said that "the wicked persons who kills animals has. to live in Ghor Narak (hell-fire) for the days, equal to the number of hair on the body of t at–animal", In Vishnu Samhita, it is observed that "he who for his own pleasure, kills harmless beasts, should be regarded as dead in life; such a man shall know no happiness, here or hereafter. He who desists from inflicting pain on any animal either of death or confinement is really the well wisher of all the creatures such a man enjoys extreme felicity" From the above, one can understand the enviromental protection has been an important facet of hindu way of life . It appears that the civilizations of Mohenjo Daro Harappa, And Dravdhani civilization lived in consonance with its eco-system and their small population and their needs maintained the harmony with the environment The Mauryan period was perhaps the most glorious-chapter of the Indian History environmental. protection point of view. It was in this period that we find detailed and' Perceptive legal provision found in Kautalya Arthashaitra written between 321 BC _and 309.BC „ The necessity ,forest admistration " was realized in this period and the process Of administration was actually put into action with the appointment of superintendent of forest and the classification of forest on a functional basis. The-Sate assumed the functions 'of. Maintance Of forest regulation of forest produce and protection of wild life Under the Arthashastra various panishments were prescribed for cutting trees, damaging forest and for killing animal deers, etc." For cutting the tender sprouts of trees in city parks that bore flowers or fruits or yielded shade, the fine was 6 panas , for cutting small branches 12 panas and for cutting stout branches 24 panas. For destroying trunk the. fine prescribed was the first amercement and for uprooting the tree The middle most amercement. Similarly, for cutting of plants which bore flowers or fruits or provided shade forests of hermits and trees or pilgrimage or of cremation grounds the fine imposed was half of the above fine. Whereas destruction of trees at the boundaries Or that were worshiped or in sanctuaries, entailed a penalty double the above fines The superintendent of forest was authorised to cause forest produce to be brought in by–guards in produce-forests'; to establish factories for forest produce and fix adequate fines. and compensation for damage to any productive forests. Spies in the guise of traders were entrusted with a duty to ascertain the quantity and price of the royal merchandise obtained from forests. With regard to protection of wiled life there were probation on killing of animals and birds. Tile–officer in charge (superintendent o slaughter house) was authorised to impose a fine upto 1000 panes on those who were found guilty of killing deers, birds and fish declared to be under state protection. Care was taken that animals from reserved parks or protected areas if found grazing in a field, were to be driven out without being hurt or killed, after intimating the forest officer. For causing injury to them, fine was imposed. Wild life in sanctuaries enjoyed complete protection from. being killed except when they turned harmful." Arthshastra also precribed punishment for causing pollution and uncivic sanitation. It provided that the Officer in charge should punish those who threw-waste on the roads by 1/8th pana, for causing muddy water 1/4th pana and if both acts were committed, the punishment should be double. If faecal matter is thrown or caused to be piled up near temple, well or pond, Sacred place or state building, then the punishment was to increase'gradually by one pana in each case. For urinating 1;1 such places the punishment prescribed was half of the above punishments.''' The environment conservation, as it existed during Mauryan period continued more or less unaltered in subsequent reigns until the end of Gupta empire in 673 A.D. prohibitions for forest destruction and animal killings were announced by other Hindu Kings. For, example, the King Ashoka. in Pillar edict had expressed his viewpoint about the welfare of creatures in his state. He prescribed various pecuniary punishments for killing animals, which included even ants, squirrels, parrots, red headed'ducks, pigeons, lizards and rats as well.' To sum up ancient India had a philosophy of environmental management principally ensured in old injections as they were contained many scriptures and smrities abuse and exploitation of nature for immediate gains was considered unjust irreligious and against environmental ethics under the culture the environmental ethics of nature conversion were not only applicable to common man but also the ruler and they also bound king despite injunction in the scriptures and preaching of saints resource conversion was not taken very seriously as the natural resource under a common belief were considered to be inexhaustible and too formidable for man and his tools to need any protection themselves ENVRONIVIENTAL PROTECTION IN MEDIEVAL INDIA From the point of law of environment conservation, a significant contribution of mogul emperors as been the establishment of magnificent gardens fruit orchard and green parks roundabout their palaces, central and provincial headquarter, public places, on the banks of the rivers and in the valley and dales which they used as a holiday retreat, places of retreat or temporary headquarters during the summer season._ Among the officials empowered for the administration of justice by the Sultans a d the emperors of India, `mutasibs (censor) were vested with the duty of prevention of pollution, His main duty among_other_was to remove obstructions. from the streets and_to,.stop the commission of nuisance in a public place, The instructions given to a newly appointed Muhtasib by the emperor ' Auranga-Zeb throws a flood of light on the functions of this officer: "In the bazaars and lanes observe if anyone, contrary to the regulations and customs, has screened off (abru) a part of the street, or closed the path or thrown dirt atilt sweepings on the road, or if anyone has seized the portion of the bazaar area reserved for public traffic and opened his shops there; you should in such cases urge them to remove the violation of regulations." There is one opinion's that "the Moghul empire, were great lovers of nature and took delight in spending their spare time in the lap of the natural environment, made no 'attempts on forest conservation!!. ... Another writer has observed that "To Moghul rulers, forests meant no more than wooded lands where they could hunt. To their governors, the forests were properties, which yielded some revenue. A few species of trees were specified in their reign as 'royal trees' and enjoyed patronage from being cut except upon a fee. There was, however, no restriction on cutting other trees. In the absence of any protective management, forests during this period shrunk steadily in size on account of felling made for cultivation both shifting and-settled ." As regards the position of the forest economy during the Mughal. Empire the rural communities by enjoyed untrammeled-Use Of forest and other natural resources however did not mean that they, use of forest and other" natural resources, however; did not mean that they could be used or misused by one and all without any restrain Rather they were quiet effectively managed with the help of a complex range of rules and regulations woven around the socio-cultural features as well as., the. Economic activities of local communities.' ENVIRONMENTAL PROTECTION DURING THE BRITISH RULE IN INDIA The early days of British rule in India were days of plunder of natural; resources. There was a total indifference "The needs of forest conservancy. They caused a "fierce onslaught" On the Indien' forests. The onslaught on. the forest was mainly due to the increasing demands of milnilitary_puposes, for the British navy, for local construction (such as roads and railways), supply of teak and sandalwood for export trade, and extension of agriculture in order to augment revenue. The British Government started to exercise control over forests in the year 1801 when a commission was appointed to enquire into the availability of Malabar and Travancore by way of appointment Conservator of Forests This move failed to conserve forests as the appointed conservator plundered the forest wealth instead of conserving it. Consequently, the post of conservator of the forest was abolished in the year 1823, The second half of the 19th century marked the beginning of organized forest management in India with some administrative steps taken to conserve forest the formulation of forest policy and the legislations to implement the policy decision the systematic management of forest resources began with the appointment of the first Inspector General of Forest in,1864. Dietrich Brandis was the first Inspector general of the forest. Protection of forest department under the supervision of Inspector General was that of exploration of resources, demarcation of reserves, protection of forest from fire and assessment of the growing stock in Valuable reserve by sample enumeration and prescription of yields which could be sustained: The objective -of management of forests thus changed from obtaining of timber for various-purposes to protecting and improving forests ant treating them as a biological growing entity. The first step of the British overturned to assess state monopoly right over the forest was The were closed to the people and by empowering the forest administration to impose penalties for an) transgression of the provision of the Act, The British Government declared its first Forest Policy by a resolution on the 19th October 1884. The policy statement had the following objectives: 1. Promoting the general well-being of the people in the country; 2. Preserving climatic and physical conditions in the country; and 3. Fulfilling the need of the people. The policy also suggested a rough functional classification of the forest into the following four categories; 1. Forests, the preservation of which was essential on climatic or physical grounds; 2. Forests which offered a supply of valuable timber for commercial purposes; 3. Minor forests which produced only the inferior sorts of timber; and 4. Pastures which were forests only in name. To implement the Forest Policy of 1884, the Forest Act of 1927 was enacted. The implementation of the forest policy of 1884. the forest act of 1927 was enacted this act is very comprehensive and continued all the major provisions of the earlier act and the amendment made there to including those relating to the duty on timber .the act of 1927 also embodies land use policy where by the British could acquire all forest land village forest and other common property resource . This Act is still in_force, together with several amendments made by the State Governments. Till 1935, the Government of India enacted the Forest Acts. In 1935 the British Parliament, through the Government of India Act 1935 created provincial legislatures and the subject of the forest was included provincial legislative list. Thereafter, several provinces make their own...laws to regulate forests. Most of these laws were within the framework lockdown in the 1927 Act. Apart from the management of forest resources the British Government also concentrated on certain other areas like water pollution, air_pollution, wildlife, and land use by..enacting numerous legislations: — The Shore Nuisance (Bombay and Kolaba) Act of 1853, Oriental Gas Company. Act, 1857, the Indian Penal Code, 1860, the Indian Easement Act of 1862, Indian Fisheries Act, 1897 were some of the important legislation made by the. British Government. These legislations contained provisions for the regulation of water provision and also prescribed punishments for the violation of these legislations. The British Government for controlling Air Pollution enacted the Bengal smoke Nuisance Act of 1905, and the Bombay-Smoke Nuisance Act of 1912. Likewise, for protection...wildlife–the British Government made certain legislations. In 1873, We the Madras Government enacted the first wildlife statute for the protection of wild elephants. The Elephants Preservation Act Of 1879, the Wild Birds and Animals Protection Act of, 1912 and the Forest Act of 1927 were other, legislation that aimed at the conservation of biodiversity. From the above it is clear that legislative measures were taken by the British Government for the prevention, of pollution and for conservative Though the critics point out that the British enacted these legislations not with the object of _protecting the environment but with the aim of earning revenue for themselves, it should be regarded as the first step towards conservation of natural resources. Though made with ulterior motives this legislation has contributed significantly to the growth of environmental jurisprudence. India. ENVIRONMENTAL PROTECTION DURING THE POST, INDEPENDENCE ERA The post independence era witnessed a lot of changes in the policies and attitudes of the Governments with respect to environmental protection, The Constitution of India, which came into force on 26th January...1950. had few provisions regarding environmental management. Article 39(b). provides that "the State shall direct its policy towards securing that the owners-flip and control of the material resources of the community are so distributed as best to sub serve the common good"- Article-47.provides that the State shall regard the rising of the level of nutrition and the-standard of living of its people and the improvement of public health as __among its primary duties. Article-48.directs that "the State shall endeavour to organize agriculture and animal husbandry on modern and scientific lines and take steps for preserving and improving the breeds and prohibiting the slaughter of cows and calves and other milch mid draught cattle. Article-49....directs that "it shall be The obligation of the State to protect every monument or place or object of artistic or historic interest, declared to be of na-tional importance, from spoliation, disfigurement, destruction, removal, disposal or export as the case may be".

The Family Court is a form of Alternative Dispute Resolution. www.lawtool.net Krishna Veni Nagam v Harish nagam, Civil Original Jurisdiction, Transfer Petition (Civil) No 1912 OF 2014, Supreme Court of India judgment dated March 9, 2017: In matrimonial or custody matters or in proceedings between parties to a marriage or arising out of disputes between parties to a marriage, wherever the defendants/respondents are located outside the jurisdiction of the court, the court where proceedings are instituted, may examine whether it is in the interest of justice to incorporate any safeguards for ensuring that summoning of defendant/respondent does not result in denial of justice. Order incorporating such safeguards may be sent along with the summons. The safeguards can be:- i) Availability of video conferencing facility. ii) Availability of legal aid service. iii) Deposit of cost for travel, lodging and boarding in terms of Order XXV CPC. iv) E-mail address/phone number, if any, at which litigant from out station may communicate. Bhuwan Mohan Singh v Meena and Others, Criminal Appeal Jurisdiction, Criminal Appeal No. 1331 OF 2014, Supreme Court of India judgement dated July 15, 2014.Section 89 and Order X, Rules 1A, 1B and 1C of Civil Procedure Code.

PERMANENT LOK ADALAT FOR PUBLIC UTILITY SERVICES www.lawtool.net In order to get over the major drawback in the existing scheme of organisation of Lok Adalats under Chapter VI of the Legal Services Authorities Act 1987, in which if the parties do not arrive at any compromise or settlement, the unsettled case is either returned to the back to the court or the parties are advised to seek remedy in a court of law, which causes unnecessary delay in dispensation of justice, Chapter VI A was introduced in the Legal Services Authorities Act, 1987, by Act No.37/2002 with effect from 11-06-2002 providing for a Permanent Lok Adalat to deal with pre-litigation, conciliation and settlement of disputes relating to Public Utility Services, as defined u/sec.22 A of the Legal Services Authorities Act, 1987, at the pre-litigation stage itself, which would result in reducing the workload of the regular courts to a great extent. Permanent Lok Adalat for Public Utility Services, Hyderabad, India The Lok Adalat is presided over by a sitting or retired judicial officer as the chairman, with two other members, usually a lawyer and a social worker. There is no court fee. If the case is already filed in the regular court, the fee paid will be refunded if the dispute is settled at the Lok Adalat. The procedural laws and the Evidence Act are not strictly followed while assessing the merits of the claim by the Lok Adalat. Main condition of the Lok Adalat is that both parties in dispute should agree for settlement. The decision of the Lok Adalat is binding on the parties to the dispute and its order is capable of execution through the legal process. No appeal lies against the order of the Lok Adalat. Lok Adalat is very effective in settlement of money claims. Disputes like partition suits, damages and matrimonial cases can also be easily settled before Lok Adalat as the scope for compromise through an approach of give and take is high in these cases. Lok Adalat is a boon to the litigant public, where they can get their disputes settled fast and free of cost.

The Lok Adalat is a form of Alternative Dispute Resolution. These are set up with an aim of providing cheaper and speedier justice flowing out of compromise between the parties. These are set up by following the provisions of the Legal Services Authorities Act, 1987. Lok Adalats are organized at regular intervals and places. Within its Jurisdiction, it can deal with cases related to:Any case pending before or Any matter which is falling within the jurisdiction of and is not brought before any court for which the Lok Adalat was organized Lok Adalat will not have jurisdiction on any case or matter related to an offense not compoundable under law. Lok Adalat gives an Award. It is equal to a Decree as given by a civil court. An Award by a Lok Adalat can be challenged only by filing a Writ Petition and not by way of separate suit - Supreme Court Etymologically, Lok Adalat means "people's court". India has had a long history of resolving disputes through the mediation of village elders. The current system of Lok Adalats is an improvement on that and is based on Gandhian principles. This is a non-adversarial system, whereby mock courts (called Lok Adalats) are held by the State Authority, District Authority, Supreme Court Legal Services Committee, High Court Legal Services Committee, or Taluk Legal Services Committee, periodically for exercising such jurisdiction as they think fit. These are usually presided by a retired judge, social activists, or members of the legal profession. It does not have jurisdiction on matters related to non-compoundable offences. While in regular suits, the plaintiff is required to pay the prescribed court fee, in Lok Adalat, there is no court fee and no rigid procedural requirement (i.e. no need to follow the process given by [Indian] Civil Procedure Code or Indian Evidence Act), which makes the process very fast. Parties can directly interact with the judge, which is not possible in regular courts. Cases that are pending in regular courts can be transferred to a Lok Adalat if both the parties agree. A case can also be transferred to a Lok Adalat if one party applies to the court and the court sees some chance of settlement after giving an opportunity of being heard to the other party. The focus in Lok Adalats is on compromise. When no compromise is reached, the matter goes back to the court. However, if a compromise is reached, an award is made and is binding on the parties. It is enforced as a decree of a civil court. An important aspect is that the award is final and cannot be appealed, not even under Article 226 of the Constitution of India [which empowers the litigants to file Writ Petition before High Courts] because it is a judgement by consent.All proceedings of a Lok Adalat are deemed to be judicial proceedings and every Lok Adalat is deemed to be a Civil Court.

Tribunal is a special court, convened by the government to inquire into a specific matter. Tribunals do not follow Law of Evidence but follow Principles of Natural Justice instead.Tribunals cannot determine legal questions unless empowered by an Act of the Parliament.Tribunals have to follow judicially as opposite to administratively. They should function impartially and judicially without regard to the executive policy. Kinds of Tribunals · Statutory Tribunal: These are set up by statutes · Constitutional Remedies by way of Writ of Prohibition, Certiorari and Mandamus are available · They get the force of law directly. · Generally solve the problems between members or between a member and a third party · Judicial review for the decision is possible. · Example: Bar Council of India setup under Advocates Act, 1961, Medical Council of India set up under Medical Council Act, 1956 etc. · Non-Statutory Tribunal: These are set up by members by way of contracts, expressed or implied. · Constitutional Remedies are not available · They get the force of law indirectly. · They generally solve the problems within themselves and cannot solve a problem between a member and a third-party. · No judicial review for the decision is possible. · Examples: Clubs, Trade Unions, Societies etc. Salt v Cooper (1880) 16 Ch D 544: "The main object of the Judicature Act, 1873, was to assimilate the transaction of equity business and common law business by different courts of judicature. It has been sometimes inaccurately called 'the fusion of law and equity'; but it was not any fusion or anything of the kind; it was the vesting in one tribunalthe administration of law and equity in every case, action, or dispute which should come before the tribunal. That was the meaning of the Act. Then as to that very small number of cases in which there is an actual conflict, it was decided that the rules of equity should prevail. That was to be the mode of administering the combined jurisdiction."

What Are The Essential OF Arbitral Award www.lawtool.net Arbitral award the term award is not defined in the arbitration act 1940 are the arbitration and conciliation act 1996 according to the section 2 of the arbitration and conciliation and the arbitration award includes on the interim award its means decision of the person to whom a dispute is referred to by the parties to the dispute in other words award is a decision of an arbitrator which is binding and party to the dispute The privy Council Laldas V/S Bailal Bom LR20 laid down that “an arbitral award is the equivalent to the judgement of the court” An arbitration makes/ passes the award after taking into the caused direction various factor settlement of the parties and witnesses concerned examine the relative document etc. ESSENTIAL OF AWARD section 31 of the arbitration and conciliation act 1996 provide for from and content an arbitral award as stated below An arbitral award shall be made in writing and shall be signed by the member of the arbitral Tribunal. For purpose of the sub-sections (1)in the arbitral proceeding with more than one arbitrator the sign nature of the majority of act the member of the Arbitral Tribunal shall be sufficient so long as the reason for any omitted signature is stated. the award shall state the reason upon which it is a based a) the party have agreed that no reason are to give or b) the award is an arbitral award on agreed under Section 30. it must state /contain the date and place of the arbitration in an in accordance with section 20. after the award is made a signed copy of it shall be delivered to the each party. the arbitral Tribunal may be at any time during the arbitral proceedings make and interim arbitral award on any matter with the respect to which it mean make final arbitral award.

Alternative Dispute Resolution Advantages & Dis-Advantages www.lawtool.net Alternative dispute resolution (ADR), or external dispute resolution (EDR), typically denotes a wide range of dispute resolution processes and techniques that act as a means for disagreeing parties to come to an agreement short of litigation: a collective term for the ways that parties can settle disputes, with the help of a third party. India Alternative dispute resolution in India is not new and it was in existence even under the previous Arbitration Act, 1940. The Arbitration and Conciliation Act, 1996 has been enacted to accommodate the harmonization mandates of UNCITRAL Model. To streamline the Indian legal system the traditional civil law known as Code of Civil Procedure, (CPC) 1908 has also been amended and section 89 has been introduced. Section 89 (1) of CPC provides an option for the settlement of disputes outside the court. CHARACTERISTICS Alternative dispute resolution (ADR) is generally classified into at least four types: negotiation, mediation, collaborative law, and arbitration. Sometimes, conciliation is included as a fifth category, but for simplicity may be regarded as a form of mediation. ADVANTAGES AND DISADVANTAGES OF ADR SYSTEM 1) ADVANTAGES OF ADR SYSTEM ALTERNATIVE DISPUTE RESOLUTION ADR PROCEDURE HAVE SEVERAL ADVANTAGES Reduce time in dispute it take less time to reach final decision. reduce cost is related to the dispute resolution it requires less money and it is cheap flexibility Party have more flexibility in choosing what rules will be applied to the dispute produce good result settlement rules of up to 85% improve satisfaction with the outcome or manner in which the dispute is resolved among disputed increase compliance with agreed solution 2) DISADVANTAGES OF ADR SYSTEM Some disadvantages of alternative dispute resolution are it can be used as a stalling tactic parties can are not complied to continue negotiation on mediation does not produce legal presidents exclusion of pertinent parties weakness final agreement party may have limited bargaining power party do not have much of a say little or no check on power imbalance between parties may not protect parties legal right the right of the parties may not be protected by the alteration dispute resolution.

The term arbitration literally means a settlement for determination of dispute outside the court by the private individual party to the dispute without the approaching the court of law may be referred their the matter to a person whom they trust on in whom they have a good faith to suggestion and amicable solution such persons who acts as a mediator between the disputant to settle the matter dispute is called arbitrator. A Written agreement to be submitted a present or future dispute to be arbitration weather and arbitrator is named therein or not called arbitration agreement the decision which is binding on the party to the dispute is called are award or arbitration award. ARBITRATION AGREEMENT the parties to dispute without approaching the court of law may be entered into on the agreement to refer their matter is proved to be settled by a third person called arbitrator such agreement is called arbitration agreement in simple word it is a written agreement entered into between the party to a dispute to repair the matter be settled by third person. DEFINITION according to section 2 clause 1 of the arbitration and conciliation act 1996 arbitration agreement means an agreement referred to section 7 which contains the ingredient of the arbitration agreement. INGREDIENTS OF THE VALID ARBITRATION AGREEMENT 1. arbitration agreement means agreement by the party to submit to arbitration all or certain dispute which have arisen or which may arise between the introspect of a divine legal relationship whether contractual or not. 2. an arbitration agreement may be in form of an arbitration clause in contract law in the form of the separate agreement 3. an arbitration agreement shall be in writing 4. arbitration agreement is in a writing it is a contained in a document signed by the parties an exchange of letter an exchange of the statement of claim and Defence 5. Reference in a contract to a document containing an arbitration clause constitution and arbitration agreement in the contract is in writing and the reference is such as to make that arbitration clause part of the contract.Section 7 clause 3 and 4 of the act state that the arbitration agreement must be writing and signed by the party. Gopal Chand v/s Madan Lal AIR 1992 Aurangabad LR 139 Fact of this cases In this case was held that oral submission cannot be the basis of the suit. the law required that arbitration agreement must not being uncertain and it should be capable of being ascertained certainly as to the one dispute two parties and three identity of the arbitral Tribunal and it compensation in the arbitration agreement....

Arbitration meaning the term arbitration means a determination of settlement of a dispute by the decision of one or more persons called arbitration or arbitral Tribunal. arbitration is a mean by which party to dispute get the same settled through the intervention of third-person or person but the without recourse to a court of law dispute is settled by the judgment of the arbitrator called an arbitral award or award the party repose confidence in judgement and hence the award is binding on them. This arbitration is considered to be an available affirmative to court litigation which is more consuming and may also adversely affected the reputation of the parties TYPES OF ARBITRATION ARE: AD HOC ARBITRATION An ad hoc arbitration is one which is not administered by an institution and therefore, the parties are required to determine all aspects of the arbitration like the number of arbitrators, manner of their appointment, etc. Provided the parties approach the arbitration in a spirit of cooperation, ad hoc proceedings can be more flexible, cheaper and faster than an administered proceeding. The advantage is that, it is agreed to and arranged by the parties themselves. However, the ground realities show that arbitration in India, particularly ad hoc arbitration, is becoming quite expensive vis-à-vis traditional litigation. INSTITUTIONAL ARBITRATION An institutional arbitration is one in which a specialized institution with a permanent character intervenes and assumes the functions of aiding and administering the arbitral process, as according to the rules of that institution. It is important to note that these institutions do not arbitrate the dispute, it is the arbitrators who arbitrate, and so the term arbitration institution is inapt and only the rules of the institution apply. Incorporation of book of rules in the “arbitration agreement” is one of the principle advantages of institutional arbitration. Institutional Arbitration, throughout the world, is recognized as the primary mode of resolution of international commercial disputes. It is an arbitration administered by an arbitral institution. Further, in many arbitral institutions such as the International Chamber of Commerce (ICC), before the award is finalized and given, an experienced panel scrutinizes it. As a result, the possibilities of the court setting aside the award is minimal. STATUTORY ARBITRATION When a law specifies that if a dispute arises in a particular case it has to be referred to arbitration, the arbitration proceedings are called “statutory arbitration”. Section 2(4) of the Arbitration and Conciliation Act 1996 provides, with the exception of section 40(1), section 41 and section 43, that the provisions of Part I shall apply to every arbitration under any other act for the time being in force in India. FAST TRACK ARBITRATION Fast track arbitration is a time-bound arbitration, with stricter rules of procedure, which do not allow any laxity for extensions of time, and the resultant delays, and the reduced span of time makes it more cost effective. Sections 11(2) and 13(2) of the 1996 Act provides that the parties are free to agree on a procedure for appointing an arbitrator and choose the fastest way to challenge an arbitral award respectively. The Indian Council of Arbitration (ICA) has pioneered the concept of fast track arbitration in India and under its rules, parties may request the arbitral tribunal to settle disputes within a fixed timeframe.

Arbitration agreement The process of arbitration can start only if there exists a valid Arbitration Agreement between the parties prior to the emergence of the dispute. As per Section 7, such an agreement must be in writing. The contract regarding which the dispute exists, must either contain an arbitration clause or must refer to a separate document signed by the parties containing the arbitration agreement. The existence of an arbitration agreement can also be inferred by written correspondence such as letters, telex, or telegrams which provide a record of the agreement. An exchange of statement of claim and Defence in which the existence of an arbitration agreement is alleged by one party and not denied by other is also considered as a valid written arbitration agreement. An arbitration agreement is a written contract in which two or more parties agree to settle a dispute outside of court. The arbitration agreement is ordinarily a clause in a larger contract. The dispute may be about the performance of a specific contract, a claim of unfair or illegal treatment in the workplace, a faulty product, among other various issues. People are free to agree to use arbitration concerning anything that they could otherwise resolve through legal proceedings. Any party to the dispute can start the process of appointing an arbitrator and if the other party does not cooperate, the party can approach the office of Chief Justice for the appointment of an arbitrator. There are only two grounds upon which a party can challenge the appointment of an arbitrator – reasonable doubt in the impartiality of the arbitrator and the lack of proper qualification of the arbitrator as required by the arbitration agreement. A sole arbitrator or a panel of arbitrators so appointed constitute the Arbitration Tribunal. Except for some interim measures, there is very little scope for judicial intervention in the arbitration process. The arbitration tribunal has jurisdiction over its own jurisdiction. Thus, if a party wants to challenge the jurisdiction of the arbitration tribunal, it can do so only before the tribunal itself. If the tribunal rejects the request, there is little the party can do except to approach a court after the tribunal makes an award. Section 34 provides certain grounds upon which a party can appeal to the principal civil court of original jurisdiction for setting aside the award. The period for filing an appeal for setting aside an award is over, or if such an appeal is rejected, the award is binding on the parties and is considered as a decree of the court.

Various Kinds of ADR & Types Of Alternative Dispute www.lawtool.net INTRODUCTION The most common types of ADR for civil cases are Arbitration, Conciliation, Mediation, Judicial Settlement and Lok Adalat. In India, the Parliament has amended the Civil Procedure Code by inserting Section 89 as well as Order 10 Rule 1-A to 1-C. Section 89 of the Civil Procedure Code provides for the settlement of disputes outside the Court. It is based on the recommendations made by the Law Commission of India and Malimath Committee. It was suggested by the Law Commission of India that the Court may require attendance of any party to the suit or proceedings to appear in person with a view to arrivingat an amicable settlement of dispute between the parties and make anattempts to settle the dispute between the parties amicably. Malimath Committee recommended to make it obligatory for the Court to refer the dispute, after issues are framed, for settlement either by way of Arbitration, Conciliation, Mediation, Judicial Settlement through Lok Adalat. It is only when the parties fail to get their disputes settled through any of the alternate disputes resolution method that the suit could proceed further. In view of the above, new Section 89 has been inserted in the Code in order to provide for alternative dispute resolution. THE FIVE DIFFERENT KINDS OF ADR CAN BE SUMMARIZED AS FOLLOWS: - 1. Arbitration 2. Conciliation 3. Mediation 4. Judicial Settlement & 5. Lok Adalat ARBITRATION: Arbitration, a form of alternative dispute resolution (ADR), is a technique for the resolution of disputes outside the courts, where theparties to a dispute refer it to one or more persons – arbitrators, by whose decision they agree to be bound. It is a resolution technique in which athird party reviews the evidence in the case and imposes a decision that is legally binding for both sides and enforceable. There are limited rights of review and appeal of Arbitration awards. Arbitration is not the same as judicial proceedings and Mediation. Arbitration can be either voluntary or mandatory. Of course, mandatory Arbitration can only come from s statute or from a contract that is voluntarily entered into, where the parties agree to hold all existing or future disputes to arbitration, without necessarily knowing, specifically, what disputes will ever occur. The advantages of Arbitration can be summarized as follows: - 1) It is often faster than litigation in Court. 2) It can be cheaper and more flexible for businesses. 3) Arbitral proceedings and an arbitral award are generally nonpublic, and can be made confidential. 4) In arbitral proceedings the language of arbitration may be chosen, whereas in judicial proceedings the official language of the competent Court will be automatically applied. 5) There are very limited avenues for appeal of an arbitral award. 6) When the subject matter of the dispute is highly technical, arbitrators with an appropriate degree of expertise can be appointed as one cannot choose judge in litigation. However, there are some disadvantages of the Arbitration, which may be summarized as follows: - 1) Arbitrator may be subject to pressures from the powerful parties. 2) If the Arbitration is mandatory and binding, the parties waive their rights to access the Courts. 3) In some arbitration agreements, the parties are required to pay for the arbitrators, which add an additional cost, especially in small consumer disputes. 4) There are very limited avenues for appeal, which means that an erroneous decision cannot be easily overturned. 5) Although usually thought to be speedier, when there are multiple arbitrators on the penal, juggling their schedules for hearing dates in long cases can lead to delays. 6) Arbitration awards themselves are not directly enforceable. A party seeking to enforce arbitration award must resort to judicial remedies. In view of provisions of Section 89 of the Civil Procedure Code, if the matter is referred to the Arbitration then the provisions of the Arbitration and Conciliation Act, 1996 will govern the case. CONCILIATION: Conciliation is an alternative dispute resolution process whereby the parties to a dispute use a conciliator, who meets with the parties separately in order to resolve their differences. They do this by lowering tensions, improving communications, interpreting issues, providing technical assistance, exploring potential solutions and bring about a negotiated settlement. It differs from Arbitration in that. Conciliation is a voluntary proceeding, where the parties involved are free to agree and attempt to resolve their dispute by conciliation. The process is flexible, allowing parties to define the time, structure and content of the conciliation proceedings. These proceedings are rarely public. They are interest-based, as the conciliator will when proposing a settlement, not only take into account the parties' legal positions, but also their; commercial, financial and /or personal interests. The terms conciliation and mediation are interchangeable in the Indian context. Conciliation is a voluntary process whereby the conciliator, a trained and qualified neutral, facilitates negotiations between disputing parties and assists them in understanding their conflicts at issue and their interests in order to arrive at a mutually acceptable agreement. Conciliation involves discussions among the parties and the conciliator with an aim to explore sustainable and equitable resolutions by targeting the existent issues involved in the dispute and creating options for a settlement that are acceptable to all parties. The conciliator does not decide for the parties, but strives to support them in generating options in order to find a solution that is compatible to both parties. The process is risk free and not binding on the parties till they arrive at and sign the agreement. Once a solution is reached between the disputing parties before a conciliator, the agreement had the effect of an arbitration award and is legally tenable in any court in the country Most commercial disputes, in which it is not essential that there should be a binding and enforceable decision, are amenable to conciliation. Conciliation may be particularly suitable where the parties in dispute wish to safeguard and maintain their commercial relationships. MEDIATION: Now, worldwide mediation settlement is a voluntary and informal process of resolution of disputes. It is a simple, voluntary, party centered and structured negotiation process, where a neutral third party assists the parties in amicably resolving their disputes by using specified communication and negotiation techniques. Mediation is a process where it is controlled by the parties themselves. The mediator only acts as a facilitator in helping the parties to reach a negotiated settlement of their dispute. The mediator makes no decisions and does not impose his view of what a fair settlement should be. In the mediation process, each side meets with a experienced neutral mediator. The session begins with each side describing the problem and the resolution they desire – from their point of view. Once each sides’ respective positions are aired, the mediator then separates them into private rooms, beginning a process of “Caucus Meeting” and thereafter “joint meetings with the parties”. The end product is the agreement of both the sides. The mediator has no power to dictate his decision over the party. There is a win – win situation in the mediation. The chief advantages of the mediation are: - 1. The agreement which is that of the parties themselves; 2. The dispute is quickly resolved without great stress and expenditure; 3. The relationship between the parties are preserved; and 4. The confidentiality is maintained. JUDICIAL SETTLEMENT: Section 89 of the Civil Procedure Code also refers to the Judicial Settlement as one of the mode of alternative dispute resolution. Of course, there are no specified rules framed so far for such settlement. However, the term Judicial Settlement is defined in Section 89 of the Code. Of course, it has been provided therein that when there is a Judicial Settlement the provisions of the Legal Services Authorities Act, 1987 will apply. It means that in a Judicial Settlement the concerned Judge tries to settle the dispute between the parties amicably. If at the instance of judiciary any amicable settlement is resorted to and arrived at in the given case then such settlement will be deemed to be decree within the meaning of the Legal Services Authorities Act, 1987. Section 21 of the Legal Services Authorities Act, 1987 provides that every award of the Lok Adalat shall be deemed to be a decree of the Civil Court .There are no written guidelines prescribed in India as to judicial settlement. But in America, ethics requiring judicial settlement has been enumerated by Goldschmidt and Milford which are as under: JUDICIAL SETTLEMENT GUIDELINES The following are guidelines for judicial settlement ethics: 1. Separation of Functions: Where feasible, the judicial functions in the settlement and trial phase of a case should be performed by separate judges. 2. Impartiality and Disqualification: A judge presiding over a settlement conference is performing judicial functions and, as such, the applicable provisions of the code of judicial conduct, particularly the disqualification rules, should apply in the settlement context. 3. Conference Management: Judges should encourage and seek to facilitate settlement in a prompt, efficient, and fair manner. They should not, however, take unreasonable measures that are likely under normal circumstances LOK ADALAT: The concept that is gaining popularity is that of Lok Adalats or people’s courts as established by the government to settle disputes through conciliation and compromise. It is a judicial institution and a dispute settlement agency developed by the people themselves for social justice based on settlement or compromise reached through systematic negotiations. The first Lok Adalats was held in Una aim the Junagadh district of Gujarat State as far back as 1982. Lok Adalats accept even cases pending in the regular courts within their jurisdiction. Section 89 of the Civil Procedure Code also provides as to referring the pending Civil disputes to the Lok Adalat. When the matter is referred to the Lok Adalat then the provisions of the Legal Services Authorities Act, 1987 will apply. So far as the holding of Lok Adalat is concerned, Section 19 of the Legal Services Authorities Act, 1987 provides as under: - Section 19 Organization of Lok Adalats . (1) Every State Authority or District Authority or the Supreme Court Legal Services Committee or every High Court Legal Services Committee or, as the case may be, Taluka Legal Services Committee may organise Lok Adalats at such intervals and places and for exercising such jurisdiction and for such areas as it thinks fit.

TRANSFER OF ANY KIND OF PROPERTY www.lawtool.net Property of any kind may be transferred'. Explained. Under Section 6 of the T.P.Act provides for the exceptions to the rule that property of any kind may be transferred. The exceptions are: a) Spes Successionis. b) Transfer of Right of Re-entry and Easement. c) Religious Office. d) Serving of Inams. e) Maintenance Right. f) Mere right to sue. g) Public Office, stipends and pensions, h) Illegal transfers. Explanation: a) Spes Successions means 'chance of succession' such an in terest cannot be transferred. b) Right of re-entry as easement: A lessor may reserve to himself a right of re-entry on breach of a convenant by his, lessee. This right cannot be transferred apart from the estate. A leases his land blackcare to B on Rs.1,000/- per annum with the right of re-entry on default by lessee. B commits default. A has a right of re-entry. This right cannot be transferred by itself to another person. An easementory right of way cannot be transferred by itself without the transfer of the dominant heritage. c) Religious Office, cannot be transferred d) Serving of Inams: An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him. Service of Inams is an example. A was entitled to an Inams, for his 'Swastivachakam' service at a temple. 'A's successor x sold this interest to B. Held: That the alienation was void. Similarly, a religious office also cannot be transferred. e) Right to future maintenance in whatsoever manner arising, secured or determined, cannot be transferred. W, the wife of H was receiving a maintenance of Rs.3,000/- per year. W is not entitled to recover her maintenance for the next year in advance. But, if H has defaulted in payment she has a right to recover the arrears. This right can be transferred by her to C. Hence, a past maintenance can be transferred but not the future right to maintenance. f) A mere right to sue cannot be transferred. A has right to recover damages from B for a tortious liability (e.g. Assault), this right cannot be transferred as it is a mere right to sue. Similarly a mere right to sue for breach of contract, cannot be transferred. g) Pensions, stipends, public office etc. cannot be transferred, h) Illegal Transfers: No transfer can be made if it is i) having unlawful object or consideration, ii) opposed to the nature of interest effected, iii) to a legally disqualified transferee. Transfer of property to future illicit cohabitation is void. Transfers made for past cohabitation are not bad as the past cohabitationwas not the 'object'. In Nagaratnamma Vs. Ramaiah the supreme Court upheld such a transfer.'Champertous transfer' by itself is not void in India. Achal Ram Vs. Kasim. A moiety created to person in a civil suit was held asgood, as it is not opposed to public policy.

PRELIMINARY TOPICS - Transfer of Property www.lawtool.net Transfer of Property : Sn.5 of Transfer of Property. Act defines Transfer of Property'. It means an act by which a living person conveys property in present or in future to one or more living persons, or to himself, or to himself and to one or more other living persons. Living person includes a Company, Association or body of individuals. The T.P. Act deals with sale, mortgage, gift, lease and exchange. Hence, abandonment is not a transfer. Partition is not a transfer. Transfer to himself and others: This is possible in case of trust. Future property can be transferred (subject to Sn.6.). The persons must be competent to make a contract. The transfer of property passes all the interests of the transferor and the legal incidents, to the transferee. Registration, under the Registration Act is compulsory if the value of. the immovable property is worth Rs.100/- and above. Attestation: The T.P. Act defines attestation in Sn.3. Attesting in respect of an instrument means that the documents must be attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the document. Further each of them must have signed the instrument in the presence of the executant. The attestors must have animus attestandi (intention of attesting). It is not necessary that more than one should be present at the same time. Law also does not prescribe any particular form of attestation. The usual procedure is that the attestors must sign with address and date. The Privy Council in Shamu Vs. Abdul Khandir, resolved the controversy whether the attestors should have actually seen he execution or not, of the document. It held that the attestors who sign the document must have actually seen the document executed. This was accepted in Sn.3. but it is given retrospective effect. In English law attestors should all be present at the same time and must have seen the execution. But it is not so, according to Indian Law. Attestors should be a sui juris (person legally capable) Even thumb impression is allowed. Attestation does not mean that attestors have notice of the contents of the document. But attestation estops from denying the factum of execution. They vouch to the execution, not to contents. Immovable Property: The Transfer of Property Act deals with various transfers relating to immovable property. S.3(2) says, Immovable Property does not include standing timber , growing corps or grass. The General Classes Act says, Immovable Property includes lands, benefits that arise out of land and things attached to the earth. 'Attached to the earth' means rooted to the earth i .e., trees, shrubs etc., imbedded in the earth i .e., walls or buildings, attached to what is so embedded. Further right to receive future rent is Immovable Property. Marshall V Green: Sale of trees to be cut and taken away. Held: sale was not for Immovable Property, if the intention of the parties is that the trees should have further nutriment from the land, then it is Immovable Property otherwise not. In English Law, there is the doctrine of fixtures. Whether a chattel is resetting merely, by is weight on the floor, it is not immovable. In Holland V. Hodgson : a mortgage of a mill was made. Held: Certain looms attached to the stone of the mill, was also covered by the mortgage. Constructive Notice. Section 3 defines notice. A notice may be actual or constructive. There is actual notice, when knowledge of a fact is brought directly to the person concerned. It is constructive when there is a presumption of the knowledge of the fact. The following are its different kinds: i) knowledge is presumed when the party wilfully abstains from making enquiry. ii) Gross negligence of the party. iii) Registration: The privy council had held that registration was not a constructive notice to subsequent transferees. (Thilak Devilal's Case). This is now superseded by T.P.Act. Hence, registration of a transfer amounts to notice, from the date of registration. iv) Possession as notice: If a person is actually in possession of a property, then the acquirer of the property is deemed to have notice of the title, if any, of the person in possession of the property. v) Notice to agent is treated as notice to the principal. The agent must have notice during the course of his business. If an agent fraudulently conceals the fact, then there is notice to the principal. The principal should not be a privy to the fraud. Spes Successionis: Means 'Chance of Succession'.S.6. of the T.P.Act provides that the chance of an heir succeeding to an estate, or the chance of a relation obtaining a legacy of a Kinsman or such a mere possibility cannot be transferred. E.g.: The interest of a reversionary on the death of a Hindu widow. In Amrit Narayana Vs. GayaSingh: 'A' hoping to succeed to the property of his material grandfather B, sold to C, his such interest, during the life time of B. Subsequently B died. A sued for recovery of property from C. Held: The sale was of a spes successions and therefore void. Future interests in properties such as contingent interest or executory interest are transferable, as, here, the possibility is coupled with an interest. Similar to spes successions, the possibilities of a like nature are: i) Chance of a person deriving income from scavenging work, which he expects to get in future. ii) Right of a priest to a share in the offerings at the temple. There is a mere chance and hence inalienable. The leading case is Allcard V. Walker. Actionable Claim: Actionable claims include claims recognised by the courts to grant relief either(a) as to unsecured debts or (b) as to beneficial interest in movable property not in possession (actual or constructive), whether present or future, conditional or contingent.This definition has solved many difficulties that had arisen earlier to 1900. The leading cases are:Colonial Bank V, Whinney and Muchiram V.Ishan Chandar. sn.130 of the T.P.Act deals with the transfers of Actionable claims. It says that a transfer of an actionable claim (whether with or without consideration) should be made only by the execution of an instrument. Thereupon, all the rights and remedies of the transferor become vested in the transferee, whether notice is given or not. The transferee may sue or proceed in his own name without obtaining the consent of the transferor. Eg.: (a) A is the debtor and B is the creditor. B transfers the debt to C. B then demand from A to pay; A pays without notice of the transfer. The payment is valid. C cannot sue A for the debt. The debt is an actionable claim and may be transferred by B to C. But, C as. transferee has those rights and remedies as B. Hence, C cannot sue 'A' for the debt. b) A has a life insurance policy. He assigns it to a Bank B for securing a loan. A dies. B is entitled to receive the amount of the policy. B can sue without the consent of A's executors. The following are actionable claims : i) Share in a Company ii) Mortgage debt iii) Claim to copyright iv) Claim to mesne profits v) Mere right to sue. Exchange: (T.P. Ac t Sn.111) When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things money only, the transaction is called an 'Exchange'. Any such transfer can be made in the same manner as is done in respect of sale. A partition of H.U.F. is not an Exchange. The parties to Exchange are subject to the same rights & liabilities of the Vendor and the Vendee. Any defect in the title of the property exchanged, is to be set right by that party whose property had the defective title. A transfers his house to B and B transfers his wet land and pays cash of Rs.5,000/- to A as consideration. This is an Exchange. If B had given money only, then it is not an Exchange. Charge : Sn.100 Where immovable property of a {person is by act of parties, (or by operation of law) made a security |or the payment of money to another, the latter person is said to hav£ a charge on the property. Conditions: i) The transaction should not amount to a mortgage. ii) All matters relating to the rights and liabilities of the parties to the charge are governed by those applicable to a simple mortgage.(Sn.59 T.P.Act). iii) This will not apply to a trustee^ who makes a charge on the trust-property.

GIFT www.lawtool.net Requisites of a valid gift: Section 122 of T.P.Act defines a gift. 'It is the transfer of certain existing movable or immovable property made voluntarily and without consideration and accepted by or on behalf of the donee'. The person who makes the gift is the donor. The donee must accept the gift: a) during the life time of the donor and b) While the donor is still capable of giving the property gifted. But if the donee dies before acceptance the gift is void. Gift of movable property may be registered or may be effected by delivery. However gift of immovable property of any value requires registration under sections 17 (a) of the Registration Act. It must be signed by the donor and must be attested by two witnesses. Gift to God Almighty may be oral or may be in writing or may be registered. A makes a gift of his jewels to B. This may be done by delivery. A makes a gift of a piece of land worth Rs.50/-. This is to be registered. The property must be existing at the time of the gift. A gift of future property is void. When a gift is made to several persons and one or more donees does not accept, then it is void respect of those who do not accept. Revocation of gift: (i) Conditional gifts: The fundamental rule is that 'A resumable gift is not a gift at all.' A gift once given cannot be revoked at the mere will of the donor; such a gift if made, is void ab initio. But, a conditional gift is void.A conditional gift which attaches a condition subsequent is valid if the condition is not vague or illegal or immoral or opposed to public policy or impossible of performance. Hence conditional gifts may be made. Ex.: A gifts to B a plot of land, reserving to himself with the consent of B, to take back the plot if B or his descendants die before A. B dies without any descendants during A's life time. The condition is valid and A may take back the plot. b) A make a gift to C, a concubine, for her continued relation ship with the donor. The condition is immoral therefore gift is void. c) A gives Rs. 1 lakh to B reserving to himself with B's consent,the right to take Rs. 25,000 at his pleasure. Gift is valid upto Rs.75,000/ - only. It is void in respect of Rs.25,000/-. (ii) Gift made under coercion, fraud undue influence or misrepresentation may be revoked by the donor. Protection of Transferees: Transferees who take the property for consideration and without notice are protected against any prejudice that may result due to revocation by the donor. The leading case is: Allcard Vs. Skinner A, a sister executed a gift to S, the lady superior under undue influence. Later A sued to set aside the gift. A would have won but there was too much of delay is suing. Hence, her claim was dismissed. Onerous Gift : Section 127 of T.P.Act deals with onerous gift. It means a single transfer made to the donee but some of the properties gifted are burdened by obligations. The donee must take the entire gift. If he accepts only to take those which are without obligations, then the gift is void. But if the gift is in two or more separate and distinct transactions, the donee may select at his liberty and refuse those which are not beneficial to him. Eg. : A gifts in one transaction, 200 shares of X & Co. a prosperous company and also 100 shares of Y & Co. a company in difficulties. Heavy calls are expected from Y & Co. A may take the entire gift. He is a onerous donee. He cannot take the gift of the shares of X & Co. only. A minor may repudiate the onerous gift after attaining majority. Effect of Onerous gift: The donee is liable to the extent of the total gifted property in his hands. Universal Donee: Here a gift of the entire property of the donor is made to a donee. The donee is liable for all the debts, dues and liabilities of the donor at the time of the gift. This liability extends to the extent of the property in the hands of the donee. Such a person who takes the entire rights and liabilities is called a universal donee. Property means here movable and immovable. If A makes a gift of his immovables only and not movables to B, B is not a universal donee. The universal donee is liable only to the extent of the immovable and movable property comprised in the gift. The liability is with reference to the tune of gift by the donor, that is universal donee is not liable for debts & liabilities incurred by the donor after the universal gift is made.

Remedies for Environmental Protection: Civil, Criminal & Constitutional www.lawtool.net Topic :- Civil Procedure Code, 1908 Indian Penal Code, 1860 Criminal Procedure Code, 1973 Constitution Civil Procedure Code, 1908 Under the Civil Procedure Code of 1908, civil suits against the perpetrators of public nuisance were allowed. By the amendment of the Civil Procedure Code in 1976, the procedure was made easier for the general public to seek recourse in the civil courts. Section 91 of the Code now reads as follows: Public Nuisances and other wrongful acts affecting the public:- (1) In the case of a public nuisance or other wrongful act affecting, or likely to affect, the public, a suit for a declaration and injunction on for such other relief as may be appropriate in the circumstances of the case, may be instituted,- (a) By the Advocate-General, or (b) With the leave of the court, by two or more persons, even though no special damage has been caused to such persons by reason of such public nuisance or other wrongful act. (2) Nothing in this section shall be deemed to limit or otherwise affect any right of suit which may exist independently of its provision. Prior to the amendment in 1976 such suits were allowed only with the sanction of the Advocate General. Thus a modification was brought about to the standing requirement which had been an obstacle in civil actions against environmental degradation. This is an important instance of early relaxation of procedural rules in the wider context of developing Indian public interest litigation. Indian Penal Code, 1860 Introduction Environmental crime refers to the violation of laws intended to protect the environment and human health. These laws govern air and water quality and dictate the ways in which the disposal of waste and hazardous materials can legally take place. Individuals or corporations can be found guilty of environmental crimes. Public Nuisance under the Indian Penal Code focuses on the operation of the law of nuisance through specific statutory provisions in the Civil and Criminal Codes of India. The Indian penal Code of 1860 contains elaborate provisions defining the crime of public nuisance in its various aspects and instances and prescribes punishments. Chapter XIV of the Indian Penal Code deals with offences affecting public health, safety, convenience, decency and morals. While Section 268 defines Public Nuisance, there are two specific sections dealing with the fouling of water (Section 277) and making the atmosphere noxious to health (section 278) which could be used against perpetrators of water and air pollution. Section 425: whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to the public or to any person, causes the destruction of any property, or any such change in any property or in the situation thereof as destroys or demises its value or utility or affects injuriously, commits “mischief”. Criminal Procedure Code, 1973 The Indian Criminal Procedure Code of 1973 has a significant chapter on maintenance of public order and tranquility, which falls into four parts. Part A deals with unlawful assemblies (Section 129-132), Part B with public nuisance (Sections 133-143), Part C with urgent cases of nuisance or apprehended danger (Section 144), and part D with disputes as to immovable property (Sections 145- 148). Most relevant in our present context is Section 133, which has been resorted to as an effective remedy to abate public nuisance in instances of environmental harm. This provision empowers a District Magistrate to pas conditional orders for the removal of nuisances. This section is supplemented with ancillary provisions, contained in Sections 134 to 143 of the Code, to constitute a comprehensive procedure tackling public nuisance. Section 144 of the Code has to be seen as a significant provision conferring wide powers upon the Magistrate to deal with urgent cases of nuisance or apprehended danger and tranquillity. This magisterial power has been exercised only for the purpose of preventing public disorder arising out of public unrest or riot situations. The potential of this provision is vast, but it does not appear to have been utilised effectively in cases of environmental harm. The provisions in the old Indian law, which have a bearing on the environment, have hardly been used in the past. The consciousness to protect the environment was not as strong then, as it is today. Unless there was awareness on the part of the people to approach the authorities neither the government nor the courts would have had the opportunity to make use of the statutory provisions. The important role played by the judicial activism of the eighties made its impact felt mire in the area of the environmental protection than in any other field. Municipal council, Ratlam v. Vardhichand18 is a signpost. The Supreme Court identified the responsibilities of local bodies towards the protection of environment and developed the law of public nuisance in the Code of Criminal procedure as a potent instrument for enforcement of their duties. Constitution Duty of the State (Part IV) Part IV of the Constitution of India contains the directive principles of State policy. These directives are the active obligations of the State; they are policy prescriptions for the guidance of the Government. Article 37 of Part IV of the Constitution limits the application of the directive principles by declaring that these principles shall not be enforceable by any Court. Therefore, if a directive is not followed by the State, its implementation cannot be secured through judicial proceedings. On the other hand, these principles are fundamental in the governance of the country and it is the duty of the state to apply these principles during the process of law-making. Part IV - Directive Principles of State Policy Article 48A. Protection and improvement of environment and safeguarding of forests and wild life The State shall endeavour to protect and improve the environment and to safeguard the forests and wild life of the country. The parliament had considerable debate over the wording of the draft Article 48- A. Several amendments were moved in both the houses of the Parliament. H.M. Seervai has correctly pointed out: Article 48-A reflects an increasing awareness of people all over the word of the need to preserve the environment from pollution, especially in urban areas. Smoke, industrial waste, deleterious exhaust fumes from motor cars and other combustion engines are injurious to the health and well-being of the people and foul the atmosphere. The preservation of forests and their renewal by afforestation has long been recognised in India as of great importance both with reference to rainfall and to prevent erosion of the soil by depriving it of forests which protect it. Part III - Fundamental Rights Article 21. Protection of life and personal liberty No person shall be deprived of his life or personal liberty except according to procedure established by law. Article 32. Remedies for enforcement of rights conferred by this Part (1) the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. It was the Maneka Gandhi case that heralded the new era of judicial thought. The court started recognising several unarticulated liberties that were implied by Article 21 and during this process the Supreme Court interpreted, after some hesitation the right to life and personal liberty to include the right to wholesome environment. The conflict between development needs and environmental protection has been the most controversial issue before the courts in decide in environmental matters. Incidentally the Dehradun Quarries case that paved the way for right to wholesome environment has also focused on this continuing conflict.

NATIONAL LEGAL SERVICES AUTHORITY ( Article 39A ) WWW.LAWTOOL.NET NATIONAL LEGAL SERVICES AUTHORITY Article 39A of the Constitution of India provides for free legal aid to the poor and weaker sections of the society and ensures justice for all. Articles 14 and 22(1) of theConstitution also make it obligatory for the State to ensure equality before law and alegal system which promotes justice on the basis of equal opportunity to all. In the year1987, the Legal Services Authorities Act was enacted by the Parliament which cameinto force on 9th November, 1995 to establish a nationwide uniform network for providingfree and competent legal services to the weaker sections of the society on the basis of equal opportunity. The National Legal Services Authority (NALSA) has been constituted under the Legal Services Authorities Act, 1987 to monitor and evaluate implementation of legal aid programmes and to lay down policies and principles for making legal services available under the Act. In every State, a State Legal Services Authority and in every High Court, a HighCourt Legal Services Committee have been constituted. District Legal Services Authorities, Taluk Legal Services Committees have been constituted in the Districts and most of the Taluks to give effect to the policies and directions of the NALSA and to provide free legal services to the people and conduct Lok Adalats in the State. Supreme Court Legal Services Committee has been constituted to administer and implement the legal services programme in so far as it relates to the Supreme Court of India. Functioning of NALSA NALSA lays down policies, principles, guidelines and frames effective andeconomical schemes for the State Legal Services Authorities to implement the Legal Services Programmes throughout the country. Primarily, the State Legal Services Authorities, District Legal Services Authorities, Taluk Legal Services Committees, etc. have been asked to discharge the following main functions on regular basis:- I. To Provide Free and Competent Legal Services to the eligible persons; II. To organize Lok Adalats for amicable settlement of disputes and III. To organize legal awareness camps in the rural areas. I. FREE LEGAL SERVICES The Free Legal Services include:- a) Payment of court fee, process fees and all other charges payable or incurred in connection with any legal proceedings; b) Providing service of lawyers in legal proceedings; c) Obtaining and supply of certified copies of orders and other documents in legal proceedings. d) Preparation of appeal, paper book including printing and translation of documents in legal proceedings. Persons eligible for getting free legal services include: i)Women and children; ii) Members of SC/ST iii) Industrial workmen iv) Victims of mass disaster, violence, flood, drought, earthquake, industrial disaster. v) Disabled persons. vi) Persons in custody vii) Persons whose annual income does not exceed Rs. 1 lakh (in theSupreme Court Legal Services Committee the limit is Rs. 5,00,000/-). viii) Victims of Trafficking in Human beings or begarFrom April, 2015 to December, 2018, total no. of 28.58 Lakh eligible personsincluding women, children, persons in custody, persons belonging to SC/ST andbackward categories have been benefitted through various free legal servicesauthorities, viz.SLSAs/DLSAsITLSc/Legal Aid ClinicsNillage Legal Care and SupportCentres. II. LOK ADALATS Lok Adalat is one of the Alternative Disputes Resolution Mechanisms. It is aforum where the disputes/cases pending in the court of law or at pre-litigation stage aresettled/compromised amicably. The Lok Adalat has been given statutory status underthe Legal Services Authorities Act, 1987. Under this Act, an award made by a LokAdalat is deemed to be a decree of a civil court and is final and binding on all partiesand no appeal lies against thereto before any court. - (a) Lok Adalats are being organized by the Legal Services Authorities/Committeesfor settlement of cases pending before courts u/s 19 of the Legal Services AuthoritiesAct, 1987 and also for matters at pre-Litigative stage, under the guidance of NALSA. (b) Chapter VI-A has been inserted in the Legal Services Authorities Act, 1987 in theyear 2002, with a view to provide compulsory pre-Litigative mechanism for conciliationand settlement of disputes relating to 'Public Utility Services'.During the period 01.04.2015 to 31.12.2018,1,79,97,259 and 3.96 Lakh cases hasbeen disposed of by Regular Lok Adalat and Permanent Lok Adalat respectively.Moreover, 4,42,88,595 cases has been disposed of by National Lok Adalat during 20152018. LEGAL AWARENESS PROGRAMMES As a part of the preventive and strategic legal aid, NALSA through the StateLegal Services Authorities, conduct legal literacy programmes. In some States, LegalLiteracy Programmes are conducted every year in schools and colleges and also forempowerment of women in a routine manner, besides the rural legal literacy camps.During the period 01.04.2015 to 31.12.2018, 5.35 Lakh Legal Awareness Campswere organized.

OFFENDERS www.lawtool.net Approver: Sn.306 Cr. P.C. An associate in a crime is called an accomplice. No doubt he is a guilty associate, but pardon is granted to him. He is called the 'Approver'. He is granted pardon: (i) To obtain evidence relating to the case and (ii) To use evidence against the other accused. To this end, he is given an assurance by the Magistrate, that no action will be taken against him. He is examined as a witness for the prosecution. Pardon may be granted in the following offences: (a) Cases triable by Sessions Court, (b) Offences punishable with 7 years imprisonment or more. Pardon Pardon may be granted by the District Magistrate, 1 Class Magistrate at any stage from investigation upto trial, but before judgement. Pardon may also be granted by Court of Sessions and High Court. The pardon is granted on condition that as a return for the pardon, the approver should make a full and true disclosure of the circumstances known to him. The Magistrate shall record his reasons for granting pardon. Pardon is given because there will be no other better evidence available in the absence of the approver's disclosure. Ex.:- In Belur Srinivas lyengar Murder Case, Bangalore, Channa became an approver and assisted the prosecution to arrest Krishna, Muniswamy and Govinda Reddy. Channa had made a complete disclosure of the conspiracy and the other circumstances of the case. Breach of promise If the approver does not disclose fully and truly, the circumstancesAnd the facts of the case, then, he has committed a breach of his promise. In such a case, the Magistrate may try him for so much ofthe offence as is disclosed by him to the court. Protection The approver gets full protection only when he has fully and truly disclosed all the relevant facts necessary for investigation. The evidence given by the approver is admissible, but theuniversal practice of the courts is not to convict the accused on the uncorroborated evidence of the Approver.The reason is that the Approver is 'Participes Criminis' (participate in the crime) He will have a motive to put the blame on the accused or to shift the guilt from himself. (Sn. 133 Evidence Act). First Offenders:- Sn. 360 Cr.P.C. Provisions are made in Cr.P.C. for those who commit offences for the first time. This is a benevolent legislation. It enables the court to release the accused instead of sending him to the prison. The release is on probation of good conduct. The object is to avoid the sending of first offender to the prison and of running the risk of turning him into a regular criminal. When a person above 21 is convicted for 7 years or with fine only or when a person below 21, or a woman is convicted for less than life imprisonment, and no previous conviction is there, the court having regard to the age, character or antecedents and circumstances, may release him on bond, instead of sentencing him. He must appeal within 3 years when called upon, and, in the meantime he must keep the peace and be of good behaviour. Scope: This section applies to the accused who is convicted of theft, dishonest misappropriation, cheating or any offence punishable with 2 years imprisonment or with fine only. There must be no previous conviction against the accused. The court will take into consideration the age, character, antecedents Or any extenuating circumstances and instead of sentencing him, releases him on admonition. The Sessions Court, or any Appellate Court or the High Court may pass an order under this provision. If the accused fails to observe the conditions imposed by the Court, he may be arrested and sentenced by the Court. The order issued under this section is in substitution of the punishment, Habitual Offender: Sn. 110 Cr.P.C. According to the Cr.P.C. special provisions are made in respect of habitual offenders and desperate characters. The object is to prevent the commission of an offence by such persons, and of securing future good behavior from them. Habitual offender means 1.Habitual robber, house breaker, thief or forgerer. 2.Habitual receiver of stolen property or harbourer of thieves, 3.Habitual Kidnapper, extortioner abductor or cheat or peace violator 4.Habitual violator committing offences under a.Drugs & Cosmetics Act. b.Foreign Exchange Regulations Act. c.Food Adulteration Act. d.(d) Custom Act etc. 5.Habitual offender of hoarding, profiteering and adulteration and 6.A person so dangerous and desperate to be a hazard to the community. The I Class Magistrate, who receives information about such a person, is within his jurisdiction, may require him to execute a bond (with sureties) for his good behaviour for a period not above 3 years. The Magistrate must give a show cause notice giving all details about the information, value of the bond etc. Juvenile Offenders: Sn.27 Cr.P.C. Certain benevolent provisions have been made in the Cr.P.C. to meet the Juvenile (Youthful) offenders. A person under the age of 16 ( as on the date he is produced before the Court), accused of an offence not punishable with death or imprisonment for life is a' juvenile' and he may be tried by the Chief Judicial Magistrate or by a Court empowered under the Children Act1960 or under any law, which provides for treatment, training and rehabilitation. The objective is to save juvenile offenders from the company of convicted criminals in the jail, and alsp to give them suitable training and to rehabilitate them. Proclaimed Offender: Sns.40(2), 82 and 83. He is any person proclaimed by the court as an offender who is. accused of an offence punishable under Sns.302 (murder) 304(Culpable Homicide), 392 (Robbery) etc. as stated in the Cr.P.C The court must have issued a warrant against him. He must have absconded or concealed himself. The proclamation in writing is to be published requiring him to appear within 30 days. Publication means reading publicity in some conspicuous place, affixing a copy to some conspicuous part of the house of the accused and the court. It may be published in newspapers. Attachment of property: After issuing the Pro claimation the Court may proceed to attach his property. If the pro claimecd offender appears within 30 days, the court may make an order releasing the property. If he does not appear, the property shall be at the disposal of the government. It may sell after six months. If the offender has not absconded and if he did not know the Proclamation he may appear before the Court within 2years.

SEARCH & ARREST www.lawtool.net Search Warrant: How search is to be made: A search-warrant, is a warrant (order) issued by the Magistrate to the Police Officer to search a particular place or places and to seize the thing or things or to discover persons who are wrongfully confined (The II Schedule to Cr.P.C. Has given the proforma of the search warrants). A Search-Warrant may be issued for :- (i) The production of a document or thing. (ii) Search of a place suspected to contain any stolen property, forged documents etc. (iii) Seizure of any forfeited publications and (iv) To discover any person who has been wrongfully confined.The Search Warrant authorises Police Officer to enter and search the place to seize any article, thing, document which is required under the Warrant, to convey that to the Magistrate. It also authorises him to arrest and produce before the Magistrate any person found therein who is privy to the offence. In case of a confined person, after search and discovery, the person must be produced before the Magistrate Search how made: The Police Officer who is duly authorised to make the search may enter the place or places concerned, and the persons in charge of the place or house or closed place (godown etc), must allow free ingress and egress to him. The Police Officer produces the items seized and the Mahajar-report before the Magistrate. The person arrested (or discovered) is also produced before the Magistrate. He also submits his report, thereof, to the Magistrate. Arrest without Warrant:Sri. 41. 1.A Police Officer may arrest a person without a Warrant in the following circumstances: a.Person concerned with a cognisable offence. b.A proclaimed offender. c.A person concerned with an extraditable crime. d.Deserter of Army. e.Released convict. f.Person with house-breaking tool or with stolen property. g.Habitual Offender. 1.Any person who commits a non-cognisable offence before the Police Officer and who refuses to give his name, address etc. 2.Any person who is designing to commit a cognizable offence. Arrest by a Private Person: A Private person may arrest a person who is committing in his presence, a non-bailable and cognisable offence or a proclaimed offender. But, without delay, he must make him over to the PoliceOfficer. Arrest how made: Sn 46 The Police Officer is empowered to arrest in cognisable cases. But, he may arrest with a Warrant in non-cognisable cases. In so arresting he may touch or confine the accused unless he submits tothe arrest. He may use force if the accused forcibly resists or attempts to evade the arrest. He has no powers to kill except in extreme cases of escape and if accused of offences punishable with death or life imprisonment. He is entitled to free ingress or egress and hence may break open any closed door or window. But, he should not enter a zanana but should give due notice of his entry. Decency is expected of the officer in such cases. The accused after arrest should not be put to unnecessary restraint. The Police Officer should inform him the grounds of his arrest and to bail him in case of bailable offences. He should search the person and seize all articles, expect wearing apparel. The search of a woman must be made by a woman police or by another woman. Amendment 2005 Sub-section (4) has been added to prohibit arrest of a woman after sunset and before sunrise except in exceptional circumstances and where such circumstances exist the prior permission of the Judicial Magistrate of the first class is to be obtained Weapons if any are also seized. The arrested person and exhibits are to be produced before the Magistrate, with a report thereof.

INVESTIGATION www.lawtool.net Investigation, Inquiry and Trial: Sn.2(h): "Investigation "includes all the proceedings under the Cr.P.C. for the collection of evidence conducted by a police officer or person authorized by the Magistrate. Sn.2 (g): Inquiry means every inquiry, other than a trial, conducted By a Magistrate or Court under Cr.P.C. Investigation, inquiry and trial denote the three successive stages in the Criminal proceedings. (i) Investigation: is conducted by the Police Officer. The objective Is to collect evidence in respect of the case on hand. It starts with the F.I.R. It includes: Proceeding to the spot, getting the facts and circumstances, collecting all the evidence available, examining persons, arresting the accused, making the search, seizing materials etc. He submits a report to the Magistrate in the prescribe form. (ii) Inquiry : The end of investigation is the beginning of the inquiry. This is a proceeding of the Magistrate or Court prior to trial. The objective is to find the truth or falsity of the facts to proceed further, to take action. If there is any truth, there will be a trial otherwise the accused is discharged. Enquiry may be judicial, non-judicial, local or preliminary. Examples are: proceedings for maintenance of wife a children, enquiring for keeping the peace. Proceeding under Sn.145 Cr.P.C. is an inquiry. (iii) Trial: The essence of this is that the Proceeding ends in conviction or acquittal. An inquiry is not a trial. The sessions trial and the warrant case trial are examples. (In a summons case, there is no formal charge or inquiry). Powers and duties of a Police Officer on receipt of F.l.R.: Sns.154 to 175 Cr.P.C.Information: Information relating to cognizable offence, may be given by any person to the Police Officer. It may be oral or in writing. If it is oral it is reduced to writing, read over to the informant, signed by him. The substance of it is entered in the Police Diary. If the information is in writing it is signed by the informant and the substance is entered in the police diary. This information is F.l.R. A copy of this shall be given free of cost to the informant. If the information is in respect of a non-cognizable offence, the police officer cannot directly investigate. He refers the information to the Magistrate. If the Magistrate orders, then only the Sub-Inspector may investigate.  If the officer refuses to record in cognizable case, the informant may by post send the substance of information to the S.P. concerned,ivho may direct investigation in suitable cases. Spot Investigation: The Police Officer informs the Magistrate and proceeds to the pot for investigation and for collecting the facts and circumstances  of the case. He also takes steps to arrest the accused. On arriving he calls a few respectable persons of the locality and in their presence he conducts the Mahazar. These persons are panchanamas (witnesses).he will draws up a report. In case of murder, he examines the bruises, wounds etc. Weapons ,if any, are seized and sealed. Blood, stained clothes and other things found are sealed as 'Exhibits'. The dead body is then sent to postmortem. The Police Officer draws up the report and it is signed by the panchanamas. This is called the mahazar report The  Police Officer may  require the attendance of persons acquainted with the circumstances of the case. Male below 15, and a female of any age may not be called to the Police Station. He examines them orally. Statements made during investigation may be reduced to writing. They need not be signed. He should not use force .or induce them. Such a statement may not be used in a trial. He is empowered to 'Search' (Sn.165). The accused may be arrested without warrant in cognizable cases. He must be produced before the Magistrate within 24 hours of the arrest. He may be kept in custody under the order of the Magistrate. The maximum period is 15 days (Remand). But according to the new Act, this may be extended if the Magistrate is satisfied that there are adequate grounds. The maximum period of detention shall be 60 days. Thereafter, he shall be released on bail. Remand should be made, only after the accused is produced before the Magistrate. The Magistrate shall record the reasons for Remanding. Police Diary The Police Officer should maintain a diary and record. (i) The time of reception of F.I.R. (ii) The time of beginning and closing of investigation. (iii) Place visited, (iv) A statement of circumstances. The Criminal Courts may  call for the diary. The accused cannot call on it, except when it is used by the Police Officer to refresh his memory. The Police Officer submits a final report to the Magistrate setting forth: (i) The names of the parties. (ii) Nature of information. (iii) Names of persons concerned with the case. (iv) The accused- whether he is in custody or not. (v) Post Mortem Report, etc. With the final report the investigation comes to an end.

THE CODE OF CRIMINAL PROCEDURE, 1973 CONFESSION www.lawtool.net Confession: Sn.164 Cr.P.C. Confession means admission by the accused of his guilt. The Magistrate may record a statement of confession made: i) In the course of investigation OR ii) At any time before the commencement of the trial. No confession can be recorded by the Police Officer. If recorded it is not admissible. The Magistrate records the confession in the same manner as he records evidence. In the Evidence Act Sn.27 and 28 deal with confession. Accordingly, confession must be recorded by the Magistrate only. Accused 'A' makes a statement. 'I have thrown the dagger in a well. I have killed 'D' with it" Here, if in pursuance of the statement, the Police Officer discovers, the dagger, the fact that it was discovered is admissible in evidence. But the statement I have killed 'D' with it, is not allowed. Confession is not to be used as substantive evidence. Procedure: Before recording the confession, the Magistrate explains to the person making it that he is not bound to make it and that it may be used as evidence against him. The Magistrate records only if the statement is made by the person voluntarily. He must be fully convinced about the truth or the veracity of the statement. Even if there is an iota of suspicion about the truth, the Magistrate may refuse to record the confession. Recording: When recording, he makes a memorandum, explains to the accused that: The accused is not bound to make a Confession, that if. made, his statement may be used against him as evidence. He must certify that the statement was voluntary, that it was done in his presence and hearing, that it was read over to him and admitted by him to be correct and that it contained a full and true account of the statement made by him. At the foot of the memorandum, the Magistrate shall sign, seal and put the date. Contents of the Memorandum: The contents should be to the following effect: "I have explained to the accused Sri ........................... that he is not bound to make a confession; If he does so, same may be sued against him I further certify that the confession was voluntary, it was taken in his presence and hearing, that I read it over to him, that he admitted as correct that is was a full and true account of the confession made"  Signature of Magistrate with Seal and Date. Evidentiary Value: In Ram Kishan V. Harmit Kaur, the Supreme Court has held that the confession statement is not 'substantive evidence'. It can be used to corroborate the evidence of a witness or to contradict him. A Magistrate who has no jurisdiction is also empowered to record the confession but then the records are to be sent to the Magistrate who conducts the trial. (Brij Bhushan V.King).  In order to ensure that the confession is voluntary, it prohibits the detention of the accused in police custody, (when he is unwilling to make a confession before the Magistrate).

THE CODE OF CRIMINAL PROCEDURE, 1973 MAINTENANCE OF WIFE AND CHILDREN www.lawtool.net Maintenance of Wife, Children and Parents: Sn.125 Cr.P.C. deals with the provisions relating to maintenance of wife, children and parents. One essential duty of the husband is to maintain his wife and children if they are not in a position to maintain themselves. The Cr.P.C. provides for a speedy remedy. The details are provided for in Sn.125 Cr.P.C. Changes made in the Cr.P.C.1973: The Joint Committee appointed by the Parliament had made certain observations. On the basis of these, some changes have been introduced in Sn.125 Cr.P.C. (i) The Magistrate may make an order if the wife is unable to maintain herself. (ii) The benefit is available to the parents also. (iii) The benefit is available to a divorced wife so long as she does not remarry. This secures social justice to women. (iv) In respect of children, maintenance benefit is available up to 18 years. After that there is maintenance, only if the child is under a physical or mental abnormality or injury unable to maintain itself. A husband having sufficient means, may neglect to maintain his wife and children and parents. The Children may be legitimate or illegitimate. The wife and children and father and mother if they are unable to maintain themselves may move an application before the concerned Magistrate. If the Magistrate is satisfied about negligence or refusal of the husband to maintain his wife, children or parents he may make an order against the husband for payment of a monthly allowance. Such amount shall not exceed Rs.500/- per month. The Magistrate may order the payment to the applicant. The amount becomes payable from the date of the order or from the date of the application by the wife. This is decided by the Magistrate. Enforcement of the Order: The Magistrate, if he finds that the husband though he had sufficient means has failed to comply with the order, without any reason, may for every such breach, issue a warrant and may sentence the person to imprisonment for a month or until the amount is paid. The husband may offer to maintain his wife, if she is willing to live with him. But if the wife refuses on the ground that the husband has married another wife or has kept a mistress then it is a valid ground for her to refuse to live with him and to live separately. Limitations: i) The amount should be claimed by the wife within a year from the date of the order of the Magistrate. ii) The wife is not entitled to receive maintenance if she is living in adultery. iii) She cannot get maintenance if, without proper reason, she refuses to live with the husband. iv) She cannot get maintenance if she is living separately with mutual consent. If the above grounds are shown, the Magistrate may cancel the order of the maintenance. Recording of Evidence: The Magistrate shall record the evidence in the presence of the husband or his advocate. He shall follow the procedure of a summons case trial. He can also proceed Ex-parte (absence of the husband) if the husband willfully neglects to attend the court. The ex-parte order can be cancelled within three months if there is a strong reason. Scope of the Order: The monthly allowance may be increased if there are sufficient reasons. However the maximum is Rs.500/- per month. The Magistrate shall give a copy of the order to the wife and such an order may be enforced by any Magistrate in any place in India where the husband may live. Such Magistrate has the same powers to enforce the order, as the Magistrate who made the order for maintenance.

THE CODE OF CRIMINAL PROCEDURE, 1973 First Information Report www.lawtool.net First Information Report (FIR) is a written document prepared by the police when they receive information about the commission of a cognizable offence. It is a report of information that reaches the police first in point of time and that is why it is called the First Information Report. It is generally a complaint lodged with the police by the victim of a cognizable offence or by someone on his/her behalf. Anyone can report the commission of a cognizable offence either orally or in writing to the police. Even a telephonic message can be treated as an FIR. (i) Communication of information of a cognizable or a noncognisable offence to the Police Officer in writing is called F.I.R. Infect, it is the information first in point of time which sets the Criminal Law in motion. Subsequent information received is not F.I.R. (a) In non- cognizable offences, when the information is given to the Police Officer (Sub-Inspector), he should enter the substance of information in the "Police Diary" and refer the informant to the Magistrate. (b)  He should not start the investigation without the orders of the concerned Magistrate. But, on receiving such an order, he may exercise the same powers in investigating as in cognizable cases. However,   he should  not arrest or search without warrant. If the Police Officer makes an investigation without orders then his report itself will be construed as a complaint and the Police Officer is deemed to be the "Complainant". (c) In Cognizable Offences, according to Sn.154 Cr.P.C, the F.I.R. is recorded by the Police Officer. If it is oral, it is reduced to writing, read over to the informant and is signed by the informant. Information is in writing it is signed by the informant. The substance of the F.I.R. is recorded in the prescribed book (Police Diary). A copy of the F.I.R. should be given to the informant. A telephone message received by the Sub-Inspector and recorded by him in his Diary is a F.I.R. (ii) If the Police officer refuses to record the F'.I.R. the informant may send the substance of such information to the S.P. by post, who may take the necessary action; He may provide for investigation.F.I.R. should be lodged at the earliest point of time. The object of F.I.R. is to receive information and to record the circumstancesbefore the person forgets to establish the information. (iii) Probative Value:- According to the Supreme Court F.I.R.is, not a piece of substantive evidence. It is used to contradict or to corroborate the informant Bailable and Non-Bailable Offences: Sn.2(a) Cr.P.C The Cr.P.C. classifies offences into Bailable and non-Bailable. Schedule I to Cr.P.C. specifies in detail.Eg.: Counterfeit of coin, Robbery, Murder etc., are non-Bailable But Mischief, House trespass etc. are Bailable. In Bailable offences bail is a matter of course. Police Officers, Courts, Magistrates, Sessions Judge, High Court may release a person on bail. In non-Bailable cases, bail is not allowed, but a person may be released on bail (Sn.437). In offences punishable with death or imprisonment for life there is no bail. In Murder, counterfeit, Sedition etc. no bail is granted. The bail amount should not be excessive and should be fixed taking into consideration the circumstances of each case. The accused should execute a bond, with or without sureties as the case may be, thereupon he is released. Exemption: In non-Bailable offences, a person under 16, or any woman under any case or any sick or infirm person may be released on bail even if punishable with death or imprisonment for life. Cognizable and Non-cognizable Offences : Sn.2(c) Cr.P.C. Offences may be classified into Cognizable and Non-Cognizable. A Non-Cognizable offence Is one in which a police officer may not arrest without warrant. In cognizable offences, he may arrest without warrant. The Cr.P.C. has mentioned these offences in the schedule. The Police Officers are guided by the above classification, and the I Schedule. Sn.41 Cr.P.C. enumerates various categories under which the Police Officer may arrest without warrant, that is: (a) Cognizable Offences. (b) Proclaimed Offender. (c) Extraditable Offence. (d) Deserter of Army. (e) Released Convict. (f) Person with House-breaking tool or stolen property etc. Complaint: Sn.2(d) Cr.P.C. A complaint is an allegation made by a person called the com- plain ant, orally or in writing, to a Magistrate, with view to his taking action under Cr.P.C., that some person (known or unknown) has committed an offence. In Cognizable offences, the police officer proceeds to directly investigate. But, in non-cognizable offences, he can investigate on the orders of the Magistrate. The New Cr.P.C. provides a remedy, where the police officer has made an investigation in non cognizable cases, without the orders of the magistrate. According to it, a police report made by a police officer, in a case which discloses, (after investigation) the commission of a non-cognizable offence,shall be deemed to be a complaint. Further, the police officer who repaired such a report is deemed to be the complainant. A complaint is made to the Magistrate only. What is given to the Police is only a report. It is not necessary that the name of the alleged offender must have been mentioned. It may not clearly specify or even wrongly specify the nature of the offence. On the basis of the complaint the Magistrate takes cognizance of the case and proceeds with the examination of the complainant. Complaint by an idiot or lunatic: In this case the complaint may be made by any other person called 'next friend', with the permission of the court. Hence though the lunatic cannot make a complaint, the next friend can make on his behalf. Compoundable offences : Sn.320 Cr.P.C. Offences are grouped into compoundable and non-compoundable. Compounding Means 'making a compromise'. Compromise may be made (i) with the permission of the court or (ii) without the permission of the court.  Compounding is allowed because the complainant and the accused may make some compromise within themselves, i.e., they agree to settle their differences mutually. Compromise once made cannot be withdrawn. It can be made at any time before the sentence is pronounced by the court.  The Cr.P.C. has provided the table mentioning the offences which are to be compounded with the permission of the court. Ex.: (i) Theft (value below Rs.250/-) (ii) Cheating. (iii) Cheating by personation. (iv) Bigamy. (v) Insulting the modesty of a woman etc. The composition is as good as the acquittal of the accused.  Compounding without the permission of Court:  In cases of hurt, assault, Cr. trespass, defamation etc., mentioned in the Cr.P.C. the offences are compoundable without the permission of the Court. The new Cr.P.C. has added a few more offences to the above list. Police Station, Police Report, Police Diary: Police Station: Means any place (or post) declared generally or specifically by the State Government to be a Police Station and includes any local area specified by the State Govt. in this behalf.  Police Report: This is report forwarded by a Police Officer to a Magistrate under Sn. 173(2).  Under Sn.173, investigation is to be completed without any delay. On completion he prepares a report containing: (i) Name of the parties. (ii) Nature of information. (iii) Names of Prosecution Witnesses(PWs.) (iv) Whether any offence is committed and if so by whom. (v) Whether the accused is arrested etc. He also forwards: (i) All documents and all exhibits. (ii) Statements of witnesses etc. With the submission of completion report, the duty of the Police Officer ends, and, the duty of the Magistrate begins.  Police Diary: Every investigation Police Officer should maintain A Diary (Station House Diary or Police Diary). He should enter his day to day proceedings in it. He shall mention the time of receipt of information, when investigation started and when closed, places visited etc. and a statement of circumstances.  The diary may be called for, by the Criminal Courts. This is not used as evidence.  The accused has no right to get into the diary. The Police Officer may use it as aid to memory (Aide memories), in such a case,  the accused has a right to get into the diary.

Kuljeet Singh @ Ranga vs Union Of India & Anr on 21 April, 1981Equivalent citations: 1981 AIR 1572, PETITIONER: KULJEET SINGH @ RANGA Vs. RESPONDENT: UNION OF INDIA & ANR. DATE OF JUDGMENT21/04/1981 BENCH: CHANDRACHUD, Y.V. ((CJ) BENCH: CHANDRACHUD, Y.V. ((CJ) SEN, A.P. (J) ISLAM, BAHARUL (J) Equivalent citations: 1981 AIR 1572, CITATION: 1981 AIR 1572 1981 SCR (3) 512 1981 SCC (3) 324 1981 SCALE (1)676 CITATOR INFO : R 1982 SC 774 (1) ACT: Constitution of India, Article 32-No material furnished for justifying the reduction of the death sentence- Dismissed. HEADNOTE: The petitioner, alongwith another accused was convicted by the Additional Session Judge for the murder of two young children and sentenced to death. Their conviction and sentence were confirmed by the High Court. The Special Leave Petitions filed by them against their conviction and sentence were dismissed by this Court. By this Writ Petition the petitioner asked for re-appraisal of his case and reconsideration of the death sentence imposed upon him. Dismissing the Writ Petition and upholding the death sentence imposed upon the petitioner once again, HELD: 1. The answers given by the petitioner furnished no material a all for justifying the reduction of the death sentence to imprisonment for life. [515 E-F] 2. The Sessions Court and the High Court were right in coming to the conclusion that the two accused were guilty of the offence of which they were charged. There is voluminous evidence of unimpeachable character which establishes his complicity in the murder. The evidence regarding the theft of the Fiat Car, the blood group of the accused, the manner of the arrest and the recovery of incriminating weapons at their instance leave not even the slightest doubt that it was they who committed the murders. [514 D, 515 D-E] 3. It is true that the murder of the two particular children was not pre-planned. But that was because the accused did not know that they would hit upon those particular children that evening. What is important is that the accused had made all the preparations for committing the murder. The plan was that they would offer a lift to some young children, try to extort ransom from their parents by kidnapping them and do the children to death in the event of any impediment arising in the execution of their plan. The impediments here were the uncommon courage of the brave little children who did not make an abject surrender to their destiny and the fact which emerged during their molestation that their father was a mere government servant whose salary was too small to permit the payment of a handsome ransom. [515 G-H, 516 A-C] 4. The accused trapped the children like helpless mice. The children got into the car but could not get out of it. In the boot of the car were kept formidable weapons which were ultimately used for committing the murder. In addition, the accused carried sharp weapons with them. The author of the injury on the boy was clearly the petitioner since his hands were more free than those of his co-accused who was at the wheel. The strategy to which theyadhered to the last without contrition of any kink was so deep laid. Their inhumanity defies all belief and description. [516E-F] 5. The case of the petitioner can not be separated from that of his co-accused. The petitioner was an active participator in the whole episode and but for his willing cooperation, his co-accused could never have succeeded in his design. Many atrocities were committed, many falsehood uttered, many escapades achieved and many an evidence concealed or destroyed by them. The petitioner’s part in carrying out the nefarious plan is no less significant than that of his co-accused and he is no less guilty than him. There is no room for treating the one differently from the other. [517 A-C] 6. The survival of an orderly society demands the extinction of persons like the accused who are a menace tosocial order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society. [516 G-H] JUDGMENT: ORIGINAL JURISDICTION : Writ Petition No. 539 of 1981. (Under Article 32 of the Constitution of India)R.K. Garg, D.K. Garg and R.C. Kaushik for thePetitioner. M.K. Banarjee, Addl.. Sol. Genl. and A. Subhashini forRespondent No. 1.N.C. Talukdar and R.N. Poddar for Respondent No. 2. The Judgment of the Court was delivered by CHANDRACHUD, C. J. Kuljeet Singh alias Ranga Khus, the petitioner herein, was convicted along with one Jasbir Singh alias Billa, by the learned Additional Sessions Judge, Delhi for various offences in connection with the murder of two young children, Geeta Chopra and her brother Sanjay. The two accused were sentenced to death for the offence under section 302 read with section 34 of the Penal Code and to varying terms of imprisonment under sections 363, 365,366 and 376 read with section 34 of the Code. The order of conviction and sentence, including the sentence of death,was confirmed by the Delhi High Court by its judgment dated November 16, 1979 where- upon the two accused filed Special Leave Petitions 562 and 1739 of 1980 in this Court, challenging their conviction and sentence. Those Special Leave Petitions were dismissed on December 8, 1980 by a Bench of this Court consisting of Justice O. Chinappa Reddy, Justice Baharul Islam and one of us the Chief Justice. By this writ Petition, the petitioner virtually asks for the re-appraisal of his case and a reconsideration of the dismissal of his Special Leave Petition. The thrust of the petition is against the sentence of death imposed on the petitioner. By an order dated February 24, 1981 the learned Chamber Judge, Justice A.C. Gupta, had stayed the execution of the death sentence pending disposal of the Writ Petition. By an order dated March 23, 1981 we had directed that the petitioner should be produced on March 30 in the Chief Justice’s Chamber and that the execution of the death sentence should be stayed until further orders. The petitioner was accordingly produced before us in the presence of his counsel, Shri R.K. Garg. Counsel for the Union of India and the Delhi Administration were also present. We questioned the petitioner on matters bearing, as we thought, on the question of sentence. We will refer to the result of that somewhat unusual exercise a little later. First, regarding the conviction itself. There is voluminous evidence of unimpeachable character which establishes conclusively the complicity of the petitioner in the murder of Geeta and Sanjay. Dr. M.S. Nanda (PW 56) gave a lift to Geeta and Sanjay from Dhaula Kuan to Gol DakKhana. Bhagwan Das (PW 6), who was going along on a scooter, rang up the Police Control Room at 6.44 p.m. saying that a woman was shouting "Bachao, Bachao" in a Fiat Car and that he saw a scuffle going on between the woman and the driver on onehand and between the boy and the person sitting next to the driver on the other. The man sitting next to the driver was the petitioner himself. The information given by Bhagwan Das was reduced into writing by the police officer, the reportbeing ex. PW 61A. Bhagwan Das had mentioned over the telephone that the number of the car was HRK 8930 but it was wrongly taken down as MRK 8930. Inderjeet Singh (PW 9), another public-spirited citizen like Bhagwan Das, who works in the Delhi Development Authority as a Junior Engineer, chased the Fiat Car on his scooter, since he heard the shrieks of a girl coming from the Fiat Car and saw the boy and the girl coming with the two men who were sitting on the front seat. As he was chasing the car, the boy was showing to him his bleeding shoulder through the back wind screen of the car. Inderjeet Singh chased the car over some distance, but whereas he was bound by the traffic rules and had to stop at the red traffic signal, the Fiat car had the liberty to jump the signal and speed away. After the light turned green, Inderjeet Singh resumed his chase but could not find the car. He therefore went straight to the Rajinder Nagar Police Station and lodged his report, Ex. PW-9A. He told the police that he saw a scuffle between the boy and the girl who were seated on the back seat on one hand and the two men who were seated on the front seat in a Fiat car, HRK 8930. The police felt obsessed by their notorious difficulty that the offence was non-cognizable and that the incident had taken place in an area which was not within the "territorial jurisdiction" of the Police Station. Inderjeet Singh had to persuade the Police do the needful by impressing upon them that he had come to lodge the report purely on humanitarian grounds. Inderjeet Singh lodged his report at 6.45 P.M and strangely, the Rajinder Nagar Police Station slept over the report for more than an hour. At 10.15 P.M. the petitioner and his companion Billa visited the Willingdon Hospital because Billa had a cut injury on his head. The features of the skiagrams taken by Sadhu Ram (PW 21) of Billa’s skull are indentical with those of the skiagrams taken by Satish Aggarwal (PW 19) of his skull after his arrest. The fingerprints on the X-ray slip, which were taken on the night of the incident when the accused went to the Willingdon Hospital, are also proved to be of Billa’s. In addition to these tell-tale pieces of evidence for collecting which due credit must be given to the police, the evidence, regarding the theft of the Fiat car, the blood-group of the accused, the manner of their arrest and the recovery of incriminating weapons at their instance leave not the slightest doubt that it is they who committed the murder of Sanjay and Geeta. The Sessions Court and the High Court were therefore right in coming to the conclusion that the two accused are guilty of the offences of which they are charged. On the question of sentence, the answers given by the petitioner when we questioned him on the 30th March, furnish no material at all for justifying the reduction of the death sentence to imprisonment for life. The petitioner is an unmarried man and appears to have no dependents. His father is gainfully employed and his mother, according to him, used to work as a nurse in a hospital. The petitioner has submitted to us a written application saying that he bears an unblemished past and is not a professional criminal. We have given our anxious consideration to the question as to whether the imposition of the death sentence should be reviewed, but we are unable to find any reason for doing so. It is true that the murder of the two particular children was not pre-planned. But that was because the accused did not know that they would hit 516 upon those particular children that evening. What is important is that the accused had made all the preparations for committing the murder of a person or persons whom they would apparently oblige by offering a lift. The plan which they had hatched was that they would offer a lift to some children, try to extort reason from their parents by kidnapping them and do the children to death in the event of any impediments arising in the execution of their plan. The impediments here were the uncommon courage of the brave little children who did not make an abject surrender to their Destiny and the stark fact which emerged during their molestation that their father was a mere government servant whose salary was too small to permit the payment of a handsome ransom. We have not the slightest doubt that the death of the Chopra children was caused by the petitioner and his companion Billa after a savage planning which bears a professional stamp. The murder was most certainly not committed on the spur of the moment as a result of some irresistible impulse which can be said to have overtaken the accused at the crucial moment. In other words, there was a planned motivation behind the crime though the accused had no personal motive to commit the murder of these two children. Any two children would have been good enough for them. The accused had loosened the handles of the doors of the car so that they should fall down when the children, after getting into the car, close the doors behind them. By this process it was ensured that the children would get into a trap like helpless mice. They got into the car but could not get out of it. In the boot of the car were kept formidable weapons which were ultimately used for committing the murder of the children. In addition, the accused carried sharp weapons with them which explains the injury caused to Sanjay in the car itself. The author of that injury was clearly the petitioner since his hands were more free than those of Billa who was on the wheel. The injured children were taken to a park in order apparently to lull them into a false sense of security. The true purpose of doing so was to let the dusk fall so that the most dastardly act could be committed under the cover of darkness. So deep-laid was the strategy to which they adhered to the last without contrition of any kind. Their inhumanity defies all belief and description. The survival of an orderly society demands the extinction of the life of persons like Ranga and Billa who are a menace to social order and security. They are professional murderers and deserve no sympathy even in terms of the evolving standards of decency of a maturing society. The case of the petitioner cannot be separated from that of Billa. The two sail in the same boat and must stand or fall together. The petitioner was an active participator in the whole expisode and but for his willing cooperation, Billa could never have succeeded in his design. In fact, the petitioner was in the company of Billa right from the moment that the children entered their car until they themselves, Ranga and Billa, entered the military compartment and were arrested. In between many atrocities were committed, many falsehoods uttered, many escapades achieved and many an evidence concealed or destroyed. The petitioner’s part in carrying out the nefarious plan is no less significant than that of Billa and he is no less guilty than him. There is no room for treating the one differently from the other. They were hand in glove with each other. We, therefore, vacate the stay orders in regard to the execution of the death sentence imposed on the petitioner and once again uphold the death sentence imposed upon him. We hope that the President will dispose of the mercy petition stated to have been filed by the petitioner as expeditiously as he finds his convenience. The writ is accordingly dismissed. N.K.A. Petition dismissed.

CHARACTER www.lawtool.net Character(Sns.52 to 55): The general rule is that the character of a person is irrelevant. The reason is one of public policy and Fairness. The raking up of the whole of the career of the party may surprise and prejudice him. Further, The business of the court is to try the case, not the man. A very bad man may have a righteous cause. (Norton: Evidence Act) "Character" includes both regulation and disposition. Evidence may be given only on general reputation & disposition. (Bhagwat Swarup V. State of Maharashtra 1965 (SC) Character in Criminal Cases: The English leading case is R.V.Rowton. Rowton was charged with 'Assault. He put a witness to speak to his good moral character. The Prosecution put its own PW who ‘stated that Rowton was a man of grossest indecency. The trial court Held that Rowton was guilty. This was reversed by the Court of Appeal. The reason was that the evidence Of character had been given in the wrong form. The PW's should have been asked Row ton’s reputation for Morality. Hence, the conviction was set aside. There cannot be a conviction on the 'opinion' of character of a person. The guilt is to be proved by reference to alleged facts, but not by proof of his character. According to the Evidence Act Sn 53 in Criminal cases, the fact that the accused is of good character is relevant. This is based on the presumption that a person who has uniformly followed an honest and' upright course of conduct, would not depart from it, to commit an offence. No doubt, character evidence is a weak evidence, it cannot outweigh the positive evidence of facts in regard to the guilt of the person. Further, according to the Evidence Act, the fact, that the accused is of a good character is relevant. However, if evidence of good character is tendered, then the evidence of bad character of the accused is itself a fact in issue.The prosecution may rely upon the previous convictions, if any, for enhancement of punishment. The Court may take-into consideration the character and antecedents of the accused, or his state of mind. Character in Civil cases: Sn 52 The rule is that in Civil cases, evidence of character of any party to prove the probability or Otherwise of any conduct imputed to him, is not relevant. There is one exception Sn 55. Evidence of character, affecting the amount of damages or Compensation is relevant. Eg. In case of breach of promise of marriage the plaintiff's general-character for immorality is Relevant. In case of seduction, the character of the person seduced is relevant. Character of witness: 1.In cross-examination of a witness questions can be asked: 2.To test his veracity. 3.To discover his status in life. 4.To shake his client-worthiness by impeaching his character. The court is empowered to decide whether or not the witness should be compelled to answer, it may Even tell the witness that he is not obliged to answer the questions. The charge was .that a raped Won 1-1-1985. W was a prosecution witness. In cross-examination the questions whether she had connections with an earlier, or whether she was a prostitute was held as relevant.

ONUS OF PROOF www.lawtool.net Burden of Proof: e subject of burden of proof has been dealt with in Sns.101 to 114 of the Evidence Act. One of the cardinal principles of the Evidence Act is that the Onus probed is on him who desires The Court to find a fact in his favour. This is called the burden of proof. This has two distinct meanings, As a matter of law and pleading, Burden of establishing a case. In the trial the first is fixed and remains unchanged, but the second will be shifting from one party to the other as soon as evidence is adduced by one to establish a fact. The Evidence Act has made provisions to state on whom the burden of proof-lies. A person who wants the court to give a judgment as to his legal right or liability on certain facts Must prove the existence of those facts; that is, the burden of proof lies on him who substantially 'asserts The affirmative of the issue'. The proving of negative is beset with many difficulties due to lack of direct proof. Hence the affirmative is to be proved. Eg. A desires the court to convict B of theft under Sn. 380, I.P.C. A must prove that B has Committed the crime. The onus lies on that person who would fail if no evidence at all, was given on either side. 'A' sues B for Rs.3, 000-00 on a promissory note. The execution of the promissory note is admitted But B says that there was fraud. A denies this. The burden to prove fraud is on B. . If no evidence is given on either side, A would succeed as the fraud is not proved. The onus on any particular fact lies on him who wishes the court to believe in its existence (Any Law may suitably provide on whom the burden shall lie). Eg. A prosecutes B for robbery. A wishes the court to believe that B admitted robbery to C. A must Prove the admission.This is called the great rule of the court; the person who makes a bargain must prove his good faith, E.g. Trustees, Attorneys etc. The risk of abuse by such person is always there. Hence, the rule is that he must prove 'good faith' in his dealings. A, a client sues his advocate B to set aside a sale. B must show that he has acted in good When it is necessary to prove any fact, in order to make evidence of any other fact admissible, the Onus of proving it, is on the person who wants to give such evidence. The burden of proving the circumstances to come within the general exceptions in the I.P.C. is on The accused. A is accused of murder. He alleges that he was of unsound mind. The burden is on A. Special Knowledge: When any fact is especially within the knowledge of any person, the burden Of proving is on him. A is charged with traveling on a railway without a ticket. The burden of proving that he had a ticket Is on him. Life and Death of a person: If a person is. Known to be alive within 30 years, the onus of proving that he is dead is on the Person who affirms it. Is a person is not heard of for seven years, there is a presumption of law that he is dead. However, if a person asserts that he is alive, he must prove it. Relationships: When there is existence of a relationship such as partnership, agency, tenancy, the burden of proving that there is no such relationship is on him who so asserts. A, B & C are partners of a firm. D, a distributor asserts that there is no firm. D must prove that. Active confidence: If one party to a transaction 'A' stands in a position of active confidence to B The burden of proving good faith is on A. Sn. 112: Irrebuttable Presumption: The fact that any person was burn during the continuance of a valid marriage between his mothers And any man, or within 280 days after divorce (the mother remaining unmarried) shall be conclusive proof that the son is legitimate. The burden is on the husband to show that he had no access to his wife at all and very strong proof is required by courts to establish this. Eg. Husband living abroad for over one year. Here, H had no access to his wife, when the child Would have been begotten.Sn. 113: Cession of territory by Govt.: The official gazette notification is conclusive proof. ‘May’ or ‘shall.' Presume: Court makes a presumption of any fact according to the common Course of natural events, human conduct etc. The burden is shifted on to the other party.

EXAMINATION www.lawtool.net Examination in Chief and Cross examination: 1.The Evidence Act defines evidence to include oral and documentary evidence to prove or Disprove any matter of fact. In respect of oral testimony of witnesses, the rule is that the adverse party shall have the right of cross-examination. According to sun. 137, the examination of a witness by the party who calls him is called the Examination-in-chief. The examination .of a witness by the adverse party is called the 'cross examination'. It is called re-examination when, after the cross-examination, the witness is examined by the party who called him. The order of examination is: Examination in chief. Cross examination, if the adverse party so desires. Re-examination, if it is so desired by the party calling him. 1. Examination in Chief:- The examination is a viva voce. It is in the form of questions and answers. The deposition of the witnesses is recorded in narrative form, It is read out to the witness and Signed by the Judge or Magistrate. In Examination in Chief, no leading questions .should be put. It is the duty of the advocate to bring out clearly every relevant fact in a chronological order. However, the statements made in examination-in-chief will not carry any value unless they are subject to the crucial acid test of cross-examination. 2. Cross-Examination”: Cross examination is a very powerful weapon in the hands of an experienced advocate, and it is double-edged weapon. Its object is to bring out the truth and expose falsehood. In cross examination, questions may be asked i) To test his veracity ii) It discover his status etc. iii) To shake his credit by injuring his character (criminating also). However, all questions, which are indecent and scandalous (unless they refer to a fact in issue) are to be avoided. The range of cross examination is almost unlimited, but subject only to relevancy. iv) Leading questions can be asked. If a witness turns hostile, then the party who called him may cross examine him. Cross examination is a branch of forensic practice and to get mastery, one should have tact, deep understanding of human nature, logical outlook and analysis and of course great practice. The trend of cross examination depends generally on the narration even in examination in chief. The major purposes of such an examination is to bring out the falsehood of the story narrated by the witness, and. also, to build a line of Defence by getting some facts from the witness himself. 3. Re-examination: Its objective is to provide an opportunity, to the party who called the witness, to fill in any lacuna or to Explain any in consistencies discovered during cross examination. However, if any new matter is Introduced, then the adverse party will have a right to cross-examine the witness.

PRIVILEGED COMMUNICATIONS www.lawtool.net Privileged Communication: Sns. 121 to 132 of the Indian Evidence Act provide for privileged communications. The general rule Of evidence is that a witness should tell the whole truth and produce all the documents in his custody Relevant to the matter in issue before the court. However, this is subject to certain exceptions. They are Called privileged communications. Privileged communications are based on public policy, Judge or Magistrate: Sn 121 No Judge or Magistrate shall be compelled to answer any questions as to his conduct in his court. This is his privilege. Anything which came to the knowledge of the Judge or the Magistrate in the trial is Also privileged. The exception is when the Superior Court makes a special order he should answer. In the Session Court, A is charge-sheeted for 'giving false evidence' (Sn. 192 I.P.C.) in Magistrate B's court. B cannot be asked what A said, except on the special orders of the Superior court. Communications during marriage are privileged: Sn 122 . A spouse should not be compelled to disclose any communication made by the other spouse during the Marriage, i.e., during coverture. However, with the consent of the other spouse, or in suits between spouses or in criminal proceedings where one is accused of an offence against the other, the communications may be disclosed. This privilege is to protect the peace and solace of the families. The protection is during marriage, after marriage & even after dissolved by divorce or death of a spouse Official communications: Sn 123 A Public Officer should not be compelled to disclose official communications made to him in confidence. The public interest would suffer by such disclosure, and hence, this privilege. However, with the permission of the Depth head, he may disclose. A Magistrate or Public Officer or a Revenue Officer should not be compelled to disclose the source of information relating to the Commission of an offense. The section has reference to unpublished documents of State,  Professional communications: Sn 125  A legal practitioner shall not at any time, be permitted to disclose: Any communication made by his client to him. Any advice tendered by him to the client during the course and for the purpose of his employment. Similarly, he shall not be permitted to state the contents or conditions of any document he has Become acquainted with. However, he may disclose any communication made in furtherance of any illegal the purpose or any fact observed by him in the course of his employment. Eg.:  i)  Accused  'A'  discloses  his  forgery  to  this  advocate  and  asks to defend.  This is Privileged. I wish to obtain possession of the property by forging a deed and I request you to act on it. This not privileged under this section. The legal adviser is prohibited from disclosing except with the permission of the accused. Similarly, interpreters, clerks, and servants of the legal practitioners are prohibited from disclosing. Sn 127 The principle is that this rule is made in the interest of justice, i.e., if such communications were not protected, then no man would resort to getting professional advice with a view to his Defence, or to enforce his right, and, no man could safely come into the court either to obtain redress or to defend himself. No client should be compelled to disclose any confidential communications between him and his Legal adviser. However, if the client is himself a witness before the court, then he maybe compelled to Answer questions which the court finds necessary to get an explanation but not any other question. Sn 129 Affairs of State: No person shall be compelled to give evidence derived from unpublished official records to any Affairs of state except with the permission of the head of the department. This is based on public policy. This should not be used as cloak to shield the truth from the court.

HEARSAY & DYING DECLARATION www.lawtool.net Persons who are not called witnesses: Sn.32 (Exceptions to Hearsay Evidence Rule) The general rule of Evidence Act is that any oral evidence must be direct i.e., Hearsay evidence is notAdmissible.  It must be given on oath and must be subject to cross-examination by the opposite party. Otherwise, the evidence is not admissible.There is, however one exception to this rule. Under Sns. 32 & 33, there are four types of persons Who are neither called before the court as witnesses, nor, are they subject to cross-examination. They are: i) Those who are dead ii) Those who cannot be found iii) Those who have become incapable of giving evidence iv) Those whose presence cannot be procured except after reasonable delay or expense. The reason for allowing such evidence is one of necessity and it may be impossible, to apply the Test of cross-examination to them. But the circumstances show that their statements are true and trustworthy. i) Dying Declaration: Statements made by a person as to the cause of his death or circumstances Leading to his death, are relevant. ii) Business or Professional duty: The statements made by the above four classes of persons, in The course of business or professional duty are admissible. Eg. Entries in books kept by them or in Documents used by them, are relevant and admissible. Entries made by a Surgeon in her dairy, regularly kept, stating the birth of A on a particular day is Relevant fact. iii) Pecuniary or other interests: Statements made by any of against the pecuniary interest or title, Exposing a person to criminal prosecution or damages in torts, are relevant and admissible. The question is about the payment of rent to A. Letter by A's deceased agent that the rents were received and were kept under A's order are relevant the question is about the legality of the wedding between A and B. The statements made by the clergy man (or officiating person) that the circumstances of that wedding were such that, it would be a crime, are relevant. iv) Custom or matters of general interest: Opinion of such persons as to the existence of a public right of way, or a custom or a matter of general interest are relevant. But such an opinion must have been made before the controversy arose. The question is whether there was a public right of way over a road. The opinion of the deceased village Headman that it was a public road is relevant. v) Relationship, Pedigree etc Statements made by such persons as to the relationship by blood, marriage or adoption, are relevant if they had some-special knowledge and if the statement was made before the controversy arose. Similarly, when such statements of relationship are made in any will, or family pedigree or tombstone etc., they are relevant, if they had been made before the controversy arose.The question is whether S is the adopted son of F. A statement by F, in his will that S is his adopted Son is relevant. vi) Evidence tendered in earlier proceedings: Evidence  given by any such person in a  judicial  proceedings  is  relevant  and admissible-in  a  subsequent proceeding if. i) The proceedings were between the same parties, or their legal representatives. ii) There was cross-examination iii) The questions were substantially the same as in the second proceeding. Conclusions: In all the above circumstances, the statements by the four class’s persons are relevant and admissible. Though the rule is that Hearsay evidence is not admissible, in the above circumstances, the statements are Admissible and hence, are exceptions to that rule. Dying Declaration: The general rule of evidence is that Hearsay evidence is not admissible.  In other words, in the Interest of justice, it is desirable that the person himself should give evidence (direct evidence) in a court, Under an oath. Under Sn.32, Dying declaration is an exception to this rule. This is based on necessity and also on the fact that there is no better evidence available. Statement made by the deceased is relevant when it is in respect of i) Cause of death and ii) circumstances which resulted in his death. Such a person must be under expectations of death at The .time of making it. The statement is admissible in Civil and Criminal proceedings, if the person dies Thereafter. Eg. a) The question is whether A was murdered by B. A dies of injuries received in a transaction in Which she was ravished Statements by A as to her cause of death are relevant.  The tongue of W, the wife was cut off by her husband, H, He threw the tongue from the window and escaped from the hinder-door Of his house. W yelled. Police arrived within seconds. The Sub Inspector put a certain question to W. W made gestures and then died. Held: the gestures recorded were admissible. Statements by deceased D, about the rape committed by A the accused on her, are relevant. Patient in hospital made certain statements which were recorded. She was discharged from hospital. After a few days she died. Held, declaration not admissible. Hence, declaration becomes admissible, when the person making it dies soon after making the statement. Corroboration is not necessary. The Supreme Court in KhushalRao vs. State of Bombay, held that dying declaration was not a weak evidence.

EVIDENCE - DEFINITIONS www.lawtool.net Evidence Evidence means and includes: i) All statements which the court permits or requires to be made before it by witness in relation to a Matter of fact under inquiry such statements are called oral evidence. ii) All documents produced for the inspection of the court Evidence may be oral or documentary. Evidence is defined as any matter of fact the effect or Tendency of which is to produce in the mind a persuasion of the existence (or otherwise) of some other Matter or fact, The textual definition refers only to oral and documentary evidence and hence incomplete. The Judge may rest his judgment on various other media of proof as well. Inspection report, facts which the Court may take judicial notice etc. are not covered by the definition.An affidavit is not ‘evidence’ under this section. Similarly confessions of Co-accused, Mahajar Report, finding of the tracker dogs or tape recordings etc.; are not evidence. These are to be proved andThen the court may decide their admissibility and evidentiary value.Three major principles of evidence are i) it must be confined to facts in issue and relevant facts ii)Hearsay evidence is not admissible iii) Best evidence must be produced before the court. Fact and Fact in Issue; 'Fact' means anything or state of thing which is capable of being perceived by the senses. It also Includes any mental condition of which a person is conscious. Eg. i) if a man hears something then that he heard something is a fact. ii) That a person has said certain words is a fact.  Facts are of two kinds: ·Physical ·Psychological (item which exists in mind) Facts in issue means any fact from which either by itself or in connection with other facts there Necessarily follows the nature of the right asserted or denied in any civil or criminal proceedings. 'A' is accused of murder. The following are the facts in issue: 1) A caused B's death ii) A intended to Cause the death of B iii) A had received a grave and sudden provocation from B. Matters which are in Dispute or which form the subject of investigation are to be determined by the court. When the Court Investigates the facts there may be allegation and denials by the parties to the dispute. From these the court settles the facts in issue. These are called issues under Civil Procedure Code. Relevant Facts: Facts mean: Anything capable of being perceived by the senses and any mental condition of which any person is conscious. Facts in issue are matters which are in dispute or subjects for determinate relevant facts are defined in Sns. 3 & 5. Evidence may be given of i) facts in issue and ii) of such other facts declared to be relevant by the  Evidence Act, and of no others.-Generally speaking, evidence should to be confined to the facts in issue. But there are collateral facts which are intermixed with the facts in issue and according to the Evidence Act these are relevant and admissible.  Relevancy is the test of admissibility. i) A fact not relevant may become relevant because of a presumption. ii)  The terms of a contact may be relevant but no oral evidence is allowed except the document itself. iii) In examination in chief though there may be facts leading questions concerning them are not Admissible. But in cross examination leading question may be freely asked. The objective of the evidence Act to save public time and to prevent fanciful inferences which may prejudice and mislead the court. Hence only collateral facts which are relevant according to the Evidence Act are admissible. All others are inadmissible. The discretion of the court is guided by the provisions of ‘the Act. Res Gestae (Sn.6): These are facts surrounding or accompanying a transaction. This has a reference to the circumstances Which are the automatic and the unsigned incidents. The incidents may consist of the sayings and doings Of persons. Res Gestae according to Cross's Law of Evidence, is a blanket phrase covering, a variety of items of evidence for variety of purposes.   Eg.  A sues  B for  a  libel.  The libel was in a letter.  The correspondence between the parties relating to the subject of libel are relevant facts. A is accused of the murder of B by beating. All things said or done by A & B, or by the bystanders, at the Time of beatings or just before it are relevant facts (Res Gestae).  Of course, Hearsay evidence is not Admissible. Hence. Res Gestae refers to statements relating to and contemporaneous with a relevant fact. The Essence of it is that there must be continuity of action and purpose. (i) R.V. Thompson (committing abortion of a woman), all acts done and statements made before or After abortion were allowed as Res gestae. (ii)  In R.V.  Lillyman, the accused had ravished a woman W.  The particulars given by her in her complaint,  were allowed as they were  consistent  with her  conduct  and for  not  giving her  consent  for Ravishment. 30 Years Old Document (Ancient Document) (Sn. 90): There is a presumption in respect of a document which is 30 years old that the signature and other  Parts of the document which purport to be in the handwriting of a particular person, is in that persons Handwriting. In respect of its execution or attestation, the court may presume that it has been duly done.Such a document must be in the proper custody of a person, who would naturally be in possession Of it. The legitimate origin can be proved. Eg. A produces title deeds relating to his land. The custody is proper. This rule is based on necessity and convenience. Further, after the lapse of such a longtime, i.e., 30 years or more it may be difficult formally to prove the handwriting, attestation, etc. These documents are also called ancient documents. 30 years is calculated of an ancient document. It does not apply to other aspects. In Chiranjilal vs. Kallo the court held that when a 30 years old document was produced there was no presumption as to its genuineness. Judgment in Rem (Sn.41): (i) A judgment in rem, is conclusive not only against the parties, but also against all the world (Norton).  The judgment must been given upon the status of some particular subject matter and it must be by a Competent court. Any person who is affected by the decision may appear and assert his own rights by Becoming an actual party to the proceedings. The leading case in Kanhya vs. Radha, where Peacock J. laid down this rule. A judgment in rem of a Competent Court which is exercising its jurisdiction in probate, Matrimonial,  Admiralty or Insolvency is binding on all persons, whether parties or privies or strangers. It is a conclusive proof of the legal character. (ii) The legal character is the one that the judgment in rem confers, takes away or declares, in it's Judgment. It may declare the property rights of any person. It is conclusive in regard to the martial status Of parties, insolvency, probate and admiralty.  Eg.  Decree of divorce, of granting probate of status in Insolvency etc. Testator T dies leaving a will, with E as his executor. A, B, C & D dispute the will. The probate court Decides that the will is genuine, it grants probate to E. This is binding on A, B, C, & D, and, also on all Persons in the world. It is conclusive. (iii) It may be impeached by proving: ·That the court, had no jurisdiction. ·That the judgment was obtained by fraud. ·That it was not given on merits. ·That it was not final, iv) Judgment in Personam: This is the judgment of the court binding on the parties to the case only or their legal representatives, On the matters decided by the court. Judgments in Contracts, Torts, etc., fall to this category. Such judgments are not a bar between strangers or between a party to the judgment and a stranger. There is one exception. When the judgment relates to a matter of Public nature, it may be relevant. A sues B for trespass on his land. B alleges that there was a public right of way. A denies. In a Previous suit between A and C there was a decree in favor of C for public right of way on the same land. Such a decree, is relevant but not conclusive. Alibi Evidence (Sn. ll): Alibi means elsewhere. It is a complete Defence in Criminal Cases. (i) The Charge is that A has committed theft at Bombay on 25-12-92. The fact that on that day A  Was in Calcutta is a relevant fact. The fact that A was far away from the place of crime makes it highly Improbable (though not impossible) that A has committed theft. (ii) The charge is that A has committed an offence. The circumstances are such that A, B, C, or D must Have committed the offence. The fact that it was not committed by B, C, or D is relevant. The leading case in R.V.Richardson. In this R committed murder of a peasant girl in a cottage but Claimed alibi. The circumstances showed that the plea was bad. He was found guilty. The principle of alibi is: Facts (not otherwise relevant) are relevant (i) If they are inconsistent with any fact in issue or relevant fact. (ii) If the facts in connection with other facts make the existence of the fact in issue or relevant Fact, impossible. Thus, in the illustration, if A is elsewhere at the time of the crime, it   is inconsistent with the fact in issue. This also makes it improbable that A who is at Calcutta could commit theft, at that time at Bombay. Child Witness: A child of tender age is competent to be a witness before a court but it must have intellectually and Sufficiently developed to understand what it has seen and also to tell the court about the same. Whether a Child is sufficiently developed or not may be tested in examination-in-chief. The child must be capable of Giving rational answers.lt is left to the discretion of the court to decide the competency of the child. In criminal cases, it has been held, that, the conviction of the accused cannot be based solely on the solitary evidence of a child, because children are the most untrusty-worthy class of witnesses. They may Mistake dreams for realities and are greatly influenced by fear of punishment, by hope of reward and by a Desire of notoriety. In Abbas Ali Shah vs. Emperor, the Privy Council said that it is not sound rule to act on the uncorroborated evidence of a child. This is only a rule of prudence and not law. Proved, disproved and not proved: Proved: A fact is said to be proved when the court after considering the matters before it, believes Its existence or believes it to be so probable that a prudent man would conclude it to exist under the Circumstances of the case. This definition indicates, the degree of certainty which must be reached. Proof means anything which helps to convince the mind, of the truth or falsehood of a fact. Absolute Certainty may not be had in the affairs of life.  Practical good sense and prudence consist in judging Matters with a degree of probability or certainty. Suspicion will not give probative force to testimony and An accused cannot be convicted on grounds of suspicion. Disproved: A fact is said to be disproved when the court after considering the matters before it, Believes that it does not exist or considers its non-existence so probable that a prudent man would Conclude it, not to exist under the circumstances of the case. Not proved: A fact is said to be not proved when it is neither proved nor disproved. (i) A is tried for murder of B. On the basis of evidence the court is satisfied that A has murdered. Here, the charge is proved. (ii) A is tried for theft. The prosecution could not convince the court with evidence available. The  Accused, showed evidence that he has not committed theft. The judge is convinced. The charge Is disproved. (iii) A is charged with receiving of stolen property. The evidence could not establish beyond Doubt that A is guilty. The court may declare the charge as not proved. Proof may be direct or circumstantial. The court decides whether a fact is proved or disproved. A fact is proved when the court believes it to be certain and most probable. It is disproved whenIt is uncertain or improbable or not possible. A stage between these two is 'not proved. That is, the court will not be able to say precisely, how the matter stands. Opinions as to customs, rights, etc. When the court is to form an opinion as to the existence of a general custom or right the opinions of Persons who are likely to have knowledge of it, are relevant.Eg. Customary right of way, necessary easements, etc. iii) Opinions as to usages, tenets: Opinions of persons having special knowledge. Of words or terms used in charitable or Religious Institutions, or Government or family or classes of persons, are relevant. This helps the court to form its Own opinions, about the usage.Eg. Rate of interest on loans; agricultural year, IV) Opinions on relationships . When the court is to form its opinion, in respect of relationship between one person and another, the Opinion of a member of a family who has special knowledge on the subject, is relevant. Exceptions: Such an opinion is not admissible to prove a marriage; or to prosecute for Bigamy under I.P.C. "

Executor and Administrator : (1) Who is Executor or Administrator ? Provisions are made in the Indian Succession Act relating to the protection of the property of the testator on his death. If the testator has named a person he is called a executor. If not so appointed, the court may appoint a person called an Administrator who gets the powers from the date of appointment by the court. Such an Executor or Administrator is the legal representative of deceased testator and all the property of the deceased vests in him. Rights: (i) The executor gets the right to act as an executor, when the competent court, grants a probate of the will mentioning the rights of the executor. (ii) In case of administrator the court grants letters of Administration empowering the Administrator to exercise his powers, Representative title: The executor gets power to sue in a court under the probate (in respect of Administrator, he gets under the letter of administration). Nothing prevents the Executor from suing the debtors of the testatpr, before taking out the probate. But the court will not pass a decree against a debtor for payment of money to the Executor unless the probate has been taken out by the Executor, (In the case of administrator he must have taken letters of administration). Petition: For Probate The executor should file a petition to the competent court, with the will, praying for grant of a probate (i.e., authority). A probate shall be granted only to an executor appointed by the will (the appointment may be express or implied). It is not granted to any person who is a minor or who is of unsound mind. Several persons may be appointed as executors. Probate may be given to them simultaneously or at different times. The probate is granted, in the prescribed proforma, with the seal of the court. It is valid retrospectively dating back to the date of death of the testator and all acts, done by the executor become valid. An executor may renounce his job orally in the presence of the judge or by writing,duly signed. If he fails to take charge within a reasonable time, an administrator may be appointed. Administrat or Appointment ; The procedure to the issue of probate is applicable for the issue of "Setters of administration" to an Administrator i.e., petition should be filed to the District court. He may be appointed in case of a testate or intestate succession. Qualifications are in case of intestate succession a person connected with the testator by marriage or by consanguinity (blood relationship) is entitled to be appointed. If the testator has not appointed an executor or if appointed he renounces or dies or refuses to act, or if there is no executor and no residuary legatee at all, a person who is entitled under intestate succession may be appointed. In his absence, a legatee or in his absence a creditor may be appointed as administrator. The person must have attained majority and must be of sound mind. Letter of administration is granted with a copy of the will. The court shall take a bond (with or without securities) from the administrator. No letters of administration are to be issued within fourteen days of the death of the testator. Powers and Duties of Exacutor or Administrator : An executor is a person appointed by the testator under the will. He accepts to act, and takes out probate from the court, The probate gives him the Representative title to act as executor. An administrator is a person duly appointed by the .court and to whom 'letters of administration' have been granted. The letter gives him the Representative title to exercise his powers as Administrator, The Indian Succession Act has provided for the various powers, duties and functions of the Executor and Administrator. (i.) Legal Actions: The executor or administrator has the power to sue in all causes of action that have survived -the testator. He may take all measures to recover the debts in the same manner as the testator. All demands and all rights to prosecute or to defend come to the executor or administrator. However such causes of action as defamation, assault, etc,, do not survive as they die with the testator. E.g.: A sues to divorce his wife W, A dies. This does not survive to executor of A, He has the power to dispose of the property of the testator vested in him in a manner which he thinks fit and proper. If.the testator was a Hindu or Mohammadan, the permission of court must be taken to martgage, to sell, to* charge, to gift away or to lease out --any immovable property. Otherwise it becomes voidable. (iii) General Powers'. He is entitled to incur expenditure for the care of the property and for its proper management. He may also incur expenditure for religious, charitable and other objects as may be reasonable and proper. But, he must take the sanction of the court. (iv) Commission: He is not entitled to any commission or agency charges higher than what is prescribed by. law. If he buys any property of the deceased, the transaction is voidable. .(v) Duties: Executor is bound to carry .out the directions given under the will. He should not try to act much wiser and better, than the pious, old fashioned and ignorant testator. He can vary the directions as perCypres Doctrine (i.e., for similar use or to approximate.to testator's intentions). The Administrator should act as per the directions of the court. (vi) Funeral Expenses : It is the duty of the executor to provide funds for the performance of the various funeral ceremonies, befitting the status and dignity of the person and subject to the property left by testator. (vii) Inventory: Executor or administrator shall within six months from the date of the probate or letters of administration produce to the court an Inventory containing a full and true account of all the property and also all the credits and the debts of the testator. Further within one year he must produce an account of the latest position thereof. The High Court has prescribed the method of doing the inventory. If he does not make the Inventory he is guilty and punishable under I.P.C. Sn. 176. He should not prepare a false inventory. If made he becomes punishable under I.P.C. Sn. 193. (viii) Collections : He shall collect and put together with reasonable diligence all the property and also all the amounts due from the debtors. (xi) Payments: He shall pay, first, reasonable funeral expenses, and death-bed expenses including medical expenses and boarding and lodging if any. Next he shall pay towards the cost incurred, in obtaining probate or letters of administration and judicial expenses if any. He shall pay wages in respect of services rendered to the deceased i.e., expenses to any labourer, artisan or domestic servant. Next he shall pay the creditors. Hence no creditor has a right of priority. Hence the principle of reteabie distribution i.e., distributing the assets pari psssu (that extent possible to pay) applies. Only after paying the debts, the legacies may be first paid up. If the assets are not sufficient to pay all the general legacies there may be an abatement of such legacies or reduced ratably. (x) Liabilities : Devastavit: In regard to liabilities the law of Devastavit applies. Executor or administrator is liable to make good the loss or damage caused to the assets due to his misapplication. Similarly, he is liable for his negligent act towards the assets. 1. A an executor compromises with a debtor for 5000 Rupees in respect of a pronote of Rs. 10,000 when the debtor is in a sound position to. pay. This is Devastavit. 2. An administrator leases out a building for Rs. 2000 when it can really fetch Rs. 4500 per month. 3. Deliberately executor does not keep huge monies in Fixed Deposits. These are examples Executor is liable for loss. Citation Means "a reference to prior title." Letters of administration should be granted to the residuary legatee in the absence of executor or persons related by marriage or blood to the testator. Hence if a prior title is cited and proved, the letters of administration cannot be issued to the Residuary legatee. This is called Citation. The principle is that if a prior party has a title to the grant of probate or letters, that person must be cited, before the letters of administration are granted to the next person. The order mentioned in the Indian Succession Act is : (i) Executor (ii) Persons related by marriage or blood (iii) Residuary legatee (iv) Specific legatee (v) Legatee (vi) Creditor Absence of Citation: Citation is essential before the letters of Administration are granted to the petitioner. If there is no citation and letters are issued to some other person, then the letters may be set aside as the proceedings are defective. Citations must be issued and published as required by the Indian Succession Act.

LEGACIES www.lawtool.net Legacy: A gift under a will is a legacy. A legacy may be generator specific. Specific Legacy : (1) If testator bequeaths to any person a specified part of his property as distinguished from all other properties, the legacy is specific (Sn. 142) E.g.: (i) A bequeaths properties to 8 mentioning : (a) My diamond ring given to me by C (b) The golden chain I am wearing (c) Rs. 5,000 which I have kept in my safe No. 1 (d) My furniture kept in my house at Calcutta (address mentioned) (e) My shares in Canara Bank, branch address specified. All these are specific legacies. ,They are easily identifiable. E.g. (ii) A bequeaths properties to B mentioning : (a) Golden ring (b) Horse (c) So much money as is necessary to buy 50, Government . bonds. These are not specific legacies. The legacy will not become specific merely because certain stocks, funds or securities are described in terms of money to be given as legacy. A bequeaths to B Rs. 10,000 of his property. This is not specific. If a bequest is made in general terms of a certain sum of money equal to any kind of stock, it is not a specific legacy because the testator had much of the stocks in the companies. A bequeaths to B 5% Government securities. A has various Govt. securities for Rs. 5,000. The legacy is not specific, as no reference is made to the particular Government Bond. if the will contains a bequest of the residue of the testator's property along with some mentioned items, the articles so mentioned are not specifically bequeathed. Specific legacy can be made to two or more persons in succession though the value of the property may be decreasing. 7 Demonstrative Legacies Where a testator bequeaths a certain sum of money or a certain quantity in any other commodity and refers to a .particular fund or stock so as to constitute the same, the primary fund or stock, of which payment is to be made, the legacy is demonstrative. In specific legacy a specified named property is given to the legatee, !n demonstrative legacy it is directed to be paid out of a specified fund or property. (i) A bequeaths to B Rs. 1000 due from W to A. He also bequeaths to Rs, 5000 to be paid from the various amounts due from '0'. Legacy to B is specific whereas to C it is demonstrative. (ii) A bequeaths to C Rs. 25,000 out of estate at Ramanagaram. This is demonstrative, (iii) A bequeaths to B 'Rs. 10,000 from my 5% bonds; 1000 chests of tel from my tea esta These are demonstrative. Regarding ademption a demonstrative legacy is to be paid from the general assets of the testator. Hence, it is not adeemed. But, a specific legacy is adeemed if it does not exist on testator's death. Residuary Legatee : A Residuary Legatee may be constituted with any words that show an intention of thetestator that the person so named takes the surplus or residue of his property. No particular mode is prescribed by law but it is necessary that the intention should be clear to constitute a legatee who gets the residue after all the other bequests are attended to. E.g.: A makes a will mentioning 'I think there will be something left after all the funeral expenses etc., and legacies are met. That shall be given to B who is studying in the college to equip him to any study he chooses.' B here is a residuary legatee. The residuary legatee is entitled to ail the property of the testator at the time of his death. That is, the property which has not been given to any person under the will.' "Any other property not mentioned above is to be given to S my youngest son." S is a residuary legatee.

DOMICILE www.lawtool.net Domicile Domicile means 'permanent home.' It is a place where a person has voluntarily fixed the habitation of himself and of his family with the present intention-of making it his permanent home. (Cheshire: Private International Law), . Domicile is of two kinds: Domicile of origin and domicile of choice. Domicile of origin is communicated at birth by operation of law. But, domicile of choice could be acquired by any person (who is not a minor), by changing his place to a new place with the animus (intention) to acquire the domicile of that place. Long residence alone will not suffice. He must have the intention to acquire new domicile. The leading cases are : (i) Winans Vs. A.G. (ii) Ramsay Vs. Live,t Pool Royal Infirmary. .(iii) Jopp Vs. Wood, (iv) Bell Vs. Kennedy, (v) White Vs. Tennant. (vi) Udny Vs. Udny. ( i) Winans Vs. A. G. : Winans was born in the United States. For sometime he did his father's business then for 9 years he served in Russia, then for some years he was visiting Engiaud Scotland and Russia. He then lived in a rented house in London, and then he died. Held, though he had stayed for 37 years in England, he had no intention to have it as his permanent home. Hence, it was held that Winans had his U.S. domicile. (ii) In Ramsay's case: one Bowie had left a will. The will was valid if the testators domicile was Scottish, and invalid if the domicile was English. B was born in Glasgow and therefore had domicile of origin as Scottish. Has went to England when he was 27, and stayed there for 36 years and died. Held, B had died with Scottish domicile, as there was no animus to acquire English domicile. (iii) In Whit e Vs. Tennant, 'A' abandoned his place 'X' and moved to State'Y'with his family with intention to live there permanently. A returned to his place 'X' for a day's stay but died. Question was about the domicile of A, Held, A died with the domicil© at 'YV There was animus and change of permanent home to place Y, Domicile of Choice and of Origin Distinguished.- Domicile of Origin is acquired at birth by operation of law. It is tenacious and cannot easily shaken off (Add Winan's case, Ramsay's case). When a person after attaining majority acquires domicile of choice, the Domicile of origin will be in abeyance; as soon as the person abandons his domicile ©f choice, the domicile of origin revives and fastens the person (Udny Vs. Udny). Domicile of choice is acquired voluntarily by a person who has attained majority, If he abandons this, he immediately gets his domicile of origin. He may acquire some other domicile of choice, if he so desires. Domicile determines the 'Status' of an individual. Validity of marriage, divorce, legitimacy, testate (under a will) and intestate (without a will) succession are determined according to domicile. No person can have two domiciles simultaneously. Application of domicile: (i) In India, succession to immovable property of a deceased person is governed by the law of India: (Lex situs). (ii) Succession to movable property is governed by the person's domicile at the time of his death. E.g. A an Englishman domiciled in France, dies in India leaving movables and immovable in India. His movables are governed by French Law, but his immovable are governed by the Law of India (Indian Succession Act). Major Exceptions : The rules relating to domicile contained in the indian Succession Act are not applicable to Hindus, Muslims, Buddhists Jains and Sikhs.

DEFINITIONS - Donat io Mart is Causa' www.lawtool.net Executor De Son Tort: (Executor of his own wrong) Sn 303 He is neither an executor nor an administrator but is a self appointed executor who inter-meddles with the estate of the deceased. He may do any other act which a legal executor could have done. Such a person is an executor of his own wrong. There are some exceptions: (i) If a person intermeddles with the goods of the deceased to preserve them. or to provide for funeral expenses or for other immediate legal necessities, he is not an Executor de son tort. (ii) If a person deals with the goods of the testator in the ordinary business, he is not an Executor de son tort. E.g.: A sells the goods of the deceased testator to satisfy his own debts. He is an executor de son tort. In English Law the principle is very strict. In case of milking the cows or taking a dog to satisfy his own debt, the person becomes liable as executor de son tort. An executor de son tort is answerable to the rightful executor or administrator or to any legatee or creditor. He is liable to the extent of the assets which may have come to his hands. Leading Cases: (a) Padg'et Vs. Priest (b) Robson Vs. Administrator General. Donat io Mart is Causa' (Sn. 181). This is the gift made in 'contemplation of death'. It provides that a person may dispose of any movable property by gift when he is in contemplation of death. The person Is in contemplation of death if he is ill and excepts to die shortly of his illness. Such a person may deliver possession of any movable property as a gift. The gift will not take effect if the donor recovers from illness during which it was made. It will also not take effect if he donee .dies prior to the donor. E.g.: (a) A being seriously ill, and on expectation of death delivers to B. (1) A wrist watch (2) A promissory note, (3) Government bonds, and (4) Cash Rs. 2,000. The gift is valid. (b) A makes a Donatio Mortis Causa and delivers B, the key of a trunk to give him the properties therein. A dies of illness. The gift is valid. Leading Cases are (!) Gardner Vs. Parker, (2) Ward Vs. Turner. Only movables must be given, and not immovables. Delivery must be made. Then only the gift is valid. A gift made In contemplation of suicide is not 'Donation Mortis Causa.' Onerous Bequest: Sn. 122 I.S.A, deals with Onerous.(burdensome) bequest. Under a will, the legatee B must- take both the bequests, one onerous and the other, not onerous otherwise he gets nothing. However, if the will contains two separate and independent bequests, the legatee is at liberty to accept the one and reject the other. Here, one may be beneficial and the other onerous. But because the transactions are different he is entitled to the option. Leading Cases ars: (I) Syer Vs. Gladstone (ii) Warren Vs. Rudall Illustration (i) A is having shares in X and Co. a prosperous company and also in Y and Co. which is in difficulties. A bequests all his shares in both companies, to B. if B refuses to accept the shares of Y and Co., he forfeits X and Co. shares. (ii) If a testator bequeaths two separate and independent bequests to the same person, the legatee is at liberty to accept one and refuse the other. A is living in a rented house for which he is paying heavy rent than usual. A bequeaths to B this lease and also Rs. 10,000. B may refuse the lease but opt for cash.

WILLS - The Indian Succession Act 1925 www.lawtool.net Will: The Indian Succession Act defines in Sn, 2 (h) a will. It means a legal declaration of the, intention of a testator with respect to his property which he desires to be carried into effect after his death. Essentials of a Will : (Unprivileged Will) (i) It must be in writing. Stamp paper not required, (ii) It must contain a legal declaration of his intention (Animus testandi). (iii) It must be with regard to -his property. Movables and Immovables. (iv) It must take effect after the death of the testator, (v) Person with legal incapacit y cannot make a will. A minor cannot make a will. The deaf, dumb or the blind can make a will if he is able to know what he does by a will. Dur ing lucid intervals, an insane may make a will, (vi) If a wilt is made under fraud undue influence or coercion it is void. (vii) A will may be revoked at any time by the testator, (viii) Amendments or changes may be made by writing a codicil. Registration : A will may be registered. But, registration is only optional according to the Registration Act. It may be sealed and deposited with the SubRegistrar to ensure security and secrecy. Attestation : The will shall be attested by two or more witnesses. Each witness must have seen the testator sign or affix his mark. It is not necessary that both the witnesses should be present at one and the same time. The attesting witness need not know the contents of the will. Kinds of Wills : There are two kinds of wills : (a) Privileged wills and (b) Unprivileged wills. (a) Privileged Will: Soldier will: A soldier engaged in actual fighting, may not be in a position to follow all the formalities to execute a valid will. The legislature has made some provisions dispensing with the formalities. The privileged will may be executed by any soldier employed in an expedition or engaged in actual warfare. It applies to land, Navy and Air Personnel. A Medical Officer attached to the regiment is a 'soldier' for this purpose and hence can execute a privileged will. Features: The will may be oral or in writing ; if written it may not be signed or attested. It may be partly written by the testator and trje balance may be written by any other person with his direction. It need not be attested. If a soldier leaves instructions for the preparation of his will but before it is prepared he dies such instructions will constitute his will. By declaring his intention, before two witnesses the soldier may make a will. The will is void of the testator Jives for more than 30 days after making th« will. This is so because he can make an un-privileged will. Unprivileged Will: Means an instrument made in relation to a. will and explaining, altering or adding to its dispositions. It shall be deemed to be part of the will. It is necessary that the Codicil should be in writing. The person shall have attained majority and must be of sound mind. An insane person can make a Codicil but only during lucid intervals. The Codicil must be executed by the testator himself by putting the signature. There must be attestation, as in a will. The attestation shall be by two or more witnesses who must have seen the testator putting his signature. The other formalities of the will apply to the Codicil also,

INTRODUCTION The Indian Succession Act 1925 is a bogey attached to this paper. This deals with the testate and intestate succession. But in respect of its application there is a difference. This Act is a consolidating Act and has combined Indian Succession Act 1865, Parsees Intestate Succession Act, the Hindus Wills Act 1870 and Probate and Administration Act 1881. Containing a formidable 391 sections, the students may feel this subject to be 'too heavy' to be digested, . Hence, attempt is made to select the most relevant and important topics and to explain each topic with illustrations and case law. In conclusion, Succession Act is here, made easy; Hence your way is made easier than ever before! Go ahead. Textual and Reference Books 1. PARUK : The Indian Succession Act 2. MITRA B.B. : Indian Succession. Act - 3. SANJEEVARAO : The Indian Succession Act 4. SEN : Succession Certificate

Income Tax Act, 1961 is an act to levy, administrate, collect & recover Income-tax in India. It came into force from 1st April 1962. ... A person also has to keep track of his TDS deducted while calculating his final tax liability at the end of the year. TAXATION SHORT IMPORTANT QUESTIONS PERQUISITE TOTAL INCOME INCOME ANNUAL VALUE OF HOUSE PROPERTY VAT NET WEALTH DEBT OWED AUTHORIZED UNDER M-FAT ACT 2002 AGRICULTURE INCOME SALARY ASSESSMENT YEAR INCOME RESIDENTIAL AND NON-RESIDENTIAL STATUS ASSET EXAMPLE THE NON RESIDENTIAL STATUS DEFINE THE TERM BUDGET PREVIOUS YEAR, FINANCIAL YEAR AND ASSESSMENT YEAR EXAMPLE THE CONCEPT OF TAXATION DIRECT SOURCE TDS ADVANCE TAX VALUATION DATE OF WEALTH TAX ASSESSE HEIRLOOM JEWELRY COMPUTATION OF INCOME DEEMED ASSETS UNDER WEALTH TAX ACT ADVANCE PAYMENT OF TAX BEST JUDGEMENT ASSESSMENT CONCEPT OF TAX EVASION AND ORDNANCE PERMANENT ACCOUNT NUMBER METHOD OF VALUATION OF GRATUITY ACCOUNTING YEAR OR FINANCIAL YEAR INTER STATE SALE OF A GOOD PERSON AND ASSESSE REVENUE RECEIPT AND CAPITAL RECEIPT LONG TERM CAPITAL GAIN OR SHORT TERM CAPITAL GAIN SET OFF OF LOSSES AND CARRY FORWARD OF LOSSES DOUBLE TAXATION RELIEF TAX RECOVERY OFFICER TAX IDENTIFICATION NUMBER WEALTH TAX AUTHORITY TAXATION LONG IMPORTANT QUESTIONS Historical development of taxation system in india Clubbing of income under income tax act 1961 Assessment for kind of assessment Function of income tax authorities Any 8 income which do not form part of total income as a prescribed under the section 10 of income tax act Section 5 under wealth tax act 1957 Power and function under the Maharashtra value added tax act 2002 Constitutional power of taxation Various head of income tax income tax act 1957 Deduction allowable in computing the income from house property Total income computed under the head of salary with deduction allowed their form Deemed asset under section 4 of wealth tax act 1957 Best judgement assessment under section 144 of IT act 10 type of income under the section 10 of the IT act Define salary and allowances any four taxable prerequisite Permissible deduction under section 24 Annual letting value under section 23

Short Important Question APPROPRIATE GOVERNMENT MUTATION MAHALWARI SYSTEM COMPENSATION UNDER LAND ACQUISITION ACT WAJI-UL-ARZ VARIOUS STAGES INVOLVED IN PROCESS OF ACQUISITION OF LAND UNDER LAND ACQUISITION ACT DIFFERENCE BETWEEN RIGHT OF PROTECTED TENANT AND ORDINARY TENANT POWER REGIONAL PLANNING BOARD ZAMINDARI SYSTEM REYTWARI SYSTEM SUMMARY EVICTION PUBLIC PURPOSE UNDER LAND ACQUISITION ACT 1894 PREPARATION OF INTERIM DEVELOPMENT PLAN MAHARASHTRA MRTP ACT 1966 EXTENSION OF RIGHT OF PUBLIC ON PUBLIC ROAD PATHWAY ETC PROCEDURE FOR CONVERSION OF USE OF LAW LAND FROM ONE PURPOSE TO ANOTHER FARMING BUILDING SPECIAL TOWNSHIP PROJECT CLASSIFICATION OF LAND NISTAR PATRAK VARIOUS CLASSES OF REVENUE OFFICER JURISDICTION OF MLR TRIBUNAL REVISION OF DEVELOPMENT PLAN TEMPORARY ACQUISITION OF WEAST OR LAND POWER OF REGIONAL PLANNING BOARD ABOLISHMENT OF ZAMIDAR MATTER WHICH DETERMINE COMPENSATION HERITAGE BULDING AND HERITAGE PRECINET AMINITY MEANS CERTIFIED COPY AND CERTIFIED EXTRACT PERSON INTERESTED LAND REVENUE REVENUE OFFICER DEVLOPMENT DOCTRINE OF EMINENT DOMAIN POWER AND DUTIES OF DIVISIONAL COMMISSIONER CLASSES OF PERSON HOLDING LAND DEFINE WAJIB –UL ARZ LONG IMPORTANT QUESTION Discuss The Restriction Imposed On The Transfer Of Occupancy By Tribes Write About Convert Of Agricultural Land To Nonagricultural Prescribe Under Land Revenue Code How Are Boundaries Fixed And Demarcated .How Bound Arise Dispute Are Deemed How Are The Person Of Class 1 What Are The Classes Of The Person Holding Land what is the procedure prescribed for preparing and sanction of development plan discuss about the duty and the power of arbitrator state how land is required for purpose under the act discuss the various changes introduced in new land acquisition act examples the various step mention under the Maharashtra land revenue code 1966 for recovery of arrears of land revenue . example in the provision of appeal and revision under MLRC ,1966 what is the procedure for the preparation and sanction of development plane explain the role of court under the land acquisition act explain the consequence of encroaching government lands explain the procedure for acquisition of land for companies what is the record of right explain the procedure for reporting and recording acquisition of land in land under Maharashtra land revenue code 1966 write note on government title to mine and Minerals – construction of water course in land belonging to others. title of state in all summary eviction

ADOPTION www.lawtool.net Meaning and Object: Son meaning 'Putra' is one who saves the father from the hell called 'Puth'. Hence, in order to perform the obsequies of the parents, a son was essential. (Aputrasya Gatirnasti). In the absence of this aurasa (natural born) son, an adopted son was taken to perpetuate the lineage and to perform the obsequies. It was felt that such a person must be Saunaka (reflection of a son). Two forms of adoption became recognised 'dattaka form' .and 'kritrjma' form. The ancient commentaries available are Nanda pandita's Dattaka Mimamsa (Bengal) and Kuberas Dattaka Chandrika (South India). Adoption is an invention of the Hindus. The legend has instances of "Sunashepa" adopted by Harischandra ; Vedic story tells how Rishi Atri gave his only son in adoption to Aurasa. ii) Object : It is both religious and secular. This is clear from Amarendra Mansingh V. Sanatan Singh where the Privy Council held that adoption was more religious and that the secular aspect was secondary. The other cases are: Balagangadhar Tilak's case,Hem Singh V. Harnam Singh (Supreme Court). Changes in Adoption Law : Many changes were introduced by the Hindu Adoptions and Maintenance Act 1956. Briefly they may be stated as follows : i) The religious or spiritual aspect of adoption is relegated to the background. Adoption is more secular according to the Act. ii) A Hindu Male may adopt a boy or girl. A Hindu Female may adopt a boy or girl. Further a Hindu Female may adopt in her own rights. As regards the adoption of daughters, the Act has followed Nandapandita's commentary in Dattaka Mimamsa, thatputra includes daughter, giving independent capacity for a female to adopt. iii) The Act has deviated from Vasista's text that a wife may adopt only with the consent of the deceased husband. iv) Sn. 12 provides that the adopted child is the child of its adoptive mother and also of father. (Subhas Misir Vs. Thyagi Misir), from the date of adoption. v) Further it is provided that the adopted child shall not divest any person of any estate which is vested in him or her prior to adoption. This clearly abrogates the rule of the divestitute of estate which was the cause of ruinous litigation for about a century. In this regard the leading cases are : i) Ramachan,dra Vs. Balaji ii) Anam Vs. Shankar iii) Srir-fvas. Vs. Narayan Bhuvaneswari Vs. Neel Kamal. V&) As regards the ceremonies to be performed in adoption, the Act/learly states that Datta homa is not essential. It is optional. The secular character is introduced into the system of adoption. Essentials of a valid adoption . The Act specifies four requisites for a valid adoption : i) The person adopting must have the capacity to adopt and jnust have the right to take in adoption. ii) The person giving in adoption must have the capacity to give in adoption. iii) The adoptee Dattaka must be capable of being adopted. iv) The adoption must comply with the other conditions specified in the Act. Explanation of each condition: i) A Hindu male only could take a boy in adoption according to old law, A female could not adopt. A widow could adopt only with the consent of the deceased husband. According to the new Act, a Hindu male or female has the capacity to adopt. A female may adopt for herself in her own right. The consent of the husband is not required. The adoptive father or mother must be a Hindu. The Hindu male must be (1) of sound mind, (2) not a minor and (3) wife's consent is necessary. But, if the wife has renounced the world or has became a convert to some other religion or is of unsound mind as declared by the court, then consent is not necessary. In case of more than one wife> the consent of all is necessary. A Hindu female may take a child in adoption. At the time of adoption, she must be of sound mind and not a minor. She must be unmarried or a widow or a divorcee. However, a wife may take-in adoption if her husband has renounced the world, has been declared by the court as of unsound mind or has become convert to other religion. ii) Person giving in adoption : Father, Mother or Guardian may give in adoption. A father may give in adoption with the consent of his wife. However, if the wife has renounced the world, or converted to some other religions, or has been declared to be of unsound mind by the court, consent is not necessary. A Mother may not give when the child's father is alive. However, if he has renounced the world or has become a convert or a lunatic, his consent is not necessary. The Guardian may give in adoption with the permission of the District Court. The Guardian gets the right when both father and mother of the child are dead, or of unsoundmind or when they have renounced the world. If the child has no father, mother or guardian, then it could not be taken in adoption according to the Act. However, in 1962, an amendment was made. According to this, whether the child is legitimate or illegitimate or an orphan it could be taken in adoption provided it is a Hindu according to the Act. The permission of the court is necessary. Adoptee : According to old law only a boy answering certain qualifications could be taken in adoption. A daughter, an orpan or an illegitimate son, or a person born blind, dumb, deaf could not be taken in adoption. (There was also another restriction. The adoptive father must have been in a position to marry the mother of the boy, in her maiden state). There were also restriction relating to age. According to the new Act, the adoptee may be a boy or a girl, the person must be a Hindu, must not be married, must be within 15 years of age arid must not have ,been already taken in adoption. iv) The other restrictions :- a) The adoptive father or mother must not have a living son, son's son or Son's Son's son (adopted or Aurasa). b) If the daughter is to be taken in adoption, the adoptive father or mother must not have a daughter or son's daughter living. c) If a male wants to take a girl in adoption, he must be elder to her at least by 21 years. If a female is to take a boy in adoption, she must be elder to him at least by 21 years. This is a rule of prudence. d) The same child cannot be taken in adoption by 2 or 3 per sons. e) There must be actual giving and taking, with an intention to transfer the child. Suffice it, if the parties know that they are transfer ring the child from its natural family to the adoptive family. Registration of adoption is not necessary, but only optional. However, Dana and Sweekara-Giving and taking are essential. The mere execution of an adoption deed is not adoptio™ Their" must be the physical act of giving and taking. S. Ghosh Vs. Krishna Sundari (Calcutta). Adopted boy sued after attaining majority. There was no actual Dana and Swekara, therefore the adoption was invalid. Formalities: Dattahomam (i.e. offering clarified butter to fire by way of religious oblation) is optional. Hence, performance of datta homam is not essential.. Legal effects of adoption : Art. 12 sets out the legal effects of a valid adoption. i) The adopted child is deemed to the child of the adoptive father and adoptive mother for all purposes, and effects. This is effective from the date of adoption and from such date all the ties of the child in the natural born family are severed and replaced by the new family. Hence, the adopted child cannot renounce and return to his family. Further, adoption once made cannot be cancelled. This has secured the position of the adopted child.However certain exceptions have been provided. i) The adopted child cannot marry any person whom it could not have married if it were continued in the natural-born family. ii) Any property vested in the adopted child before adoption in his natural-born family continues to vest in him. Hence, he is entitled to his property in his natural-born family including his undivided coparcenery interest. Any obligations like maintenance attached to that property continues and hence, his such property is liable. But there is no personal obligation. iii) The adopted child shall not divest any person of any estate which is vested in or her, before the adoption, i.e., no divestiture in the adoptive family. iv) Doctrine of 'relation back': If a widow took a boy in adoption, it related back to the death of the adoptive father for purposes of continuing the line and of divesting of the property. The leading case is Amarendra Vs. Santan Singh : In this case one Raja Brijendra died unmarried. His collateral succeeded, to the estate. As the family custom prevented females from succeeding to the Raja; Indumati the mother of the Raja, adopted Amarendra to her husband Brijendra. Question was whether this adoption dated back to the death of the Raja, and divested Benamali of the estate. The Privy Council held that she could be divested. Hence, Amarendra succeeded. This was explained by the Supreme Court in Srinivas Vs.Narayan. It stated that adoption dated back to the date of death of Brijendra. This doctrine has no application now. Other leading cases: i) Subash Misir Vs. Thagir Misir : The Supreme Court held that a child adopted by the widow was the child of both the adoptive widow and her deceased husband. Hence, they are adoptive parents. The leading case is : Sawan Ram V. Kalavanti (1967), the Supreme Court held that an adopted son was a preferential heir. A died leaving a widow B. B alienated a part of the property of A. Sawan Ram a collateral, challenged and claimed as reversioner. B adopted D (Deep Chand). Then B died. D brought a suit. It finally went to the Supreme Court which held that Deep Chand became a member of the adoptive family of A, and, that the adoption was not only to herself but also to her deceased husband. (The property was vested in the widow B, as per Sn. 14d. of the Hindu Succession Act, and hence, the adopted son succeeded to it). Dwayamshana adoption : It means son of two fathers. It is only a variety of dattaka form. It is of two kinds : Anitya i.e., incomplete and Nitya i.e., Absolute. Anitya is initiated by the natural father. The 'boy' is considered as son of two fathers but incompletely. This is not in vogue. Nitya is recognised by law. There is a condition 'This is the son of both of us' natural and adoptive fathers. This is an agreement. There may be an implied condition. The formalities are the same as dattaka-giving and taking. But, the stipulation is an addition. As the adopted boy is the son of two fathers, he is equally the son of two mothers. The son inherits to both the families. This type of adoption was held valid in malakappa v. mallappa(1976). Kritrima adoption : This is obsolete except in some areas in the West Coast of India. Some features : i) The boy may give himself in adoption. His consent is essential. Consent of both parties essential. ii) A male may adopt; a female may adopt. A wife may adopt to herself even during the lifetime of her husband. iii) The person must be of the same caste; He must be of age to give consent. iv) Ceremonies not necessary, v) The boy inherits to both the families. Illatom adoption : This is a customary form. Illatom is the affiliation of a son-in law in consideration of the management of the family property. In vogue in parts of A P. Tamilnadu and among Reddies and kawars.

HINDU LAW - INTRODUCTION www.lawtool.net Hindu Dharma-is one of the oldest jurisprudences of the legal world. The written Smritis are: Manusmriti, Yajnavalkya Smriti and Naradasmriti. These are as old as 13th Century B.C. The term Dharmasastra applies to these Smritis generally. The Sanskrit treatises on these Smritis, appeared as comrnentaries and Digests.The most important of them are 1) Mitakshara written by Vijnaneswara(1100 A.D.) (2) Dayabhaga written by Jimutavahana (1300 A.D.). These two are called the School of Hindu Law. Mitakshara is being followed in all parts'of India except Bengal & Assam where Dayabhaga has its sway. Apart from there commentaries there are pthers held by jurists with great esteem:- 'Smriti Chandrika' by Deva Nanda Bhatt,' Vivada Rat nakara' by Chandeswara, 'Parasara madhaviya' by Madhavacharya, 'Vivada Chinthamani', by Vachaspati, 'Saraswati Vilasa' by Pratapa Ruradeva, 'Vyavahara Nirnaya' by Varadaraja, 'Nirnaya sindhu' by Kamalakara, 'Daitaka Mimamsa' by Nanda Pandita, 'Dattaka Chandriks' by Kubera etc. This list shows the formidable resources. A gleaning into these can be had by reading the 'History of Dharmasastra's by Dr.Maha mahopadyaya Kane. For a Thorough Knowledge on Hindu Law one must sit with these great masters. To the students and beginners this is a list for their future reading & specialisation. We have now the codified Hindu Law in the form of Acts and also the uncodified Hindu Law, and also the decisions of our Supreme Court and various High courts; Hindu Law Uncodified Law Sources of Hindu Law, Mithakshara & Dayabhaga Schools. (i) Stridhana (ii) Widow Yestate (iii) Reversioners. (i) Mithakshara Copairenary-Characteristics-Kartha-Alienatir Partition-re-union. (ii) Dayabhaga Law. (iii) Property: Self acquired, Ancestral,Joint Venture Acquitions. Gains of Learning Act. Debts: Liabilities-Nature, Meaning, Scope. (b) Antecedent Debts. (c) Pious obligation-Doctrine-Scope-(Vyavaharika Avyavaharika Debts.) Gifts. Wills. Benami Transactions. Religious & Charitable Endowments. Law of Damdupat. Conversion. Codified Hindu Law 1. Hindu Marriage Act 1955 & Amendments 1976-valid, void and voidable Marriages Restitution of conjagal rights-Nul Divorce, 2. Hindu Adoption & Maintenance Act 1956. i) Adoption:- Doctrine & its scope-changes made in the N,, Act-invalid adoptions-KritrimaIllatoni' ii) Maintenance: Nature-extent-persons entitied-amounts-Right to Maintenance how protected against alienations etc.. 3. Hindu Minority & Guardianship Act 1956-Types of Guardian ship powers-Functipns Defacto Guardian-Minor's interest. 4. Hindu Succession Act 1956: i) Intestate Succession-General ii) General Provisions relating to Succession, iii)Testamentory Succession, iv)Sn. 14: Abolition of Widow's estate-Reference to old Law. compari son thereof. Disqualification & exclusion from inheritance. Marumakkathayam, Aliyasantana & Nambcodri Law.

MARRIAGE AND DIVORCE www.lawtool.net Hindu Marriage : a) Introduction : Marriage, according to Ancient Hindu Law , is a samskara or a sacrament and also an indissoluble union. The writings of the Smritikaras and the commentators, had settled Hindu Law of Marriage until the Britishers interfered by making certain changes. " by legislation. b) Legislation : The first Act, which introduced some changes,was the Hindu Women's Remarriage Act 1856. This was followed by the Special Marriage Act 1872. The Hindu Marriage Disabilities Removal Act 1946 validated sagotra and sapravara marriages. Many Regional Acts have also been made. After independence, under the 'Hindu Code Bill', a number of changes were contemplated. Four major Acts were made. Concerning marriage, the Hindu Marriage Act 1955 was made. This was "amended by the Marriage Law Amendment Act 1976. Conditions of a Valid Marriage : S.5 of the Hindu Marriage Act enumerates the various conditions of a valid Hindu Marriage. They are as follows : i) Parties must be Hindus : The marriage may be solemnised between two Hindus. The word 'Hindu' is defined broadly by Sn. 2. Accordingly, Hindus by religion. Virashaivas, Lingayaths, Brahmo Arya or PrarthanaSamagists; Sikhs, Buddhists and Jains are within the definition. However, the Act does not apply to : Muslims, Christians, Jews and Parsis, by religion. Hence, if one of the parties is not a Hindu, this Act will not apply. Special Marriage Act applies. Thus, the Act has provided for inter-caste and sub-caste marriages.Further, persons who are deemed Hindus as per the 'Act' may also marry. Under Hindu Marriage Disabilities Removal Act, Hindus having the same gotra or pravara may also marry. Widows may also marry (Act of 1856). These are enabling acts. ii) No spouse living : Neither party should have a spouse living at the time of the marriage. Hence only monogamous marriages are recognised and Bigamy under Sn. 494 I.P.C. is punishable. Thus polygamy is abolished.A divorcee may marry after one year of the date of the finaldecree of divorce. If this condition is violated, the marriage becomes void, iii) Unsoundness of mind: If a party to the marriage is incapable of giving consent (at the time of the marriage) due to i) unsoundness of mind ii) mental disorder to such an extent as to be unfit for marriage and procreation of children iii) recurring attacks of insanity or epilepsy, the marriage is voidable. The 1955 Act had provided Idiocy and lunacy as grounds. But 1976 amendment has provided for above tests in respect of the mental incapacity and of its nature at the time of the marriage. If this condition is violated the marriage is voidable. iv) Age of Marriage : The Act lays down that the age of the bridegroom should be 21 years and that of the bride 18 years. Earlier the 1955 Act had fixed the limits at 18 and 15. If this condition is violated, the parties are liable for punishment(Imprisonment or fine), but the marriage is not void or voidable. v) Prohibited degrees of relationship : The parties to the marriage should not be related within the prohibited degrees of relationship. However, if a custom or usage governing both the parties allows, nen the marriage is valid. The custom or usage, of course, must he against public policy, e.g. marriage with a niece was held void Raman Gowda V. Shivaji). Persons who come with in the prohibited degrees are mentioned in Sn.3 (g). a) If one is a lineal ascendant of the other b) If one was the wife or husband of a lineal ascendant or decedent of the other. c) If the two are related as brother and sister, uncle and niece, children of two brothers, or of two sisters etc. If this condition is violated the marriage becomes void ab initio and the parties become punishable. vi) Sapinda Relationship: The parties to the marriage must not be sapindas of each other. The Act provides a custom or usage, as an exception, if it permits each of theparties, but, this should not be against public policy.Sapinda relationship as understood by Mithakshara andDayabhaga schools is retained by the Act. Sapinda is 3 degrees on mother's side and 5 degrees on the father's side. If this condition is violated, the marriage become void ab initio vii) Consent by Guardian: This is repealed. The reason is that the age limit of the bride and the bridegroom is raised to 18 and 21 respectively. viii) Ceremonies: Sn. 7 provides that the Hindu Marriage is to be solemnised according to the customary rites and ceremonies of either party to the marriage.Where 'saptapadi' is part of the ceremony, the marriage becomes complete and binding when the 7th step is taken by the bride and the bridegroom before the sacred fire. Hence, saptapadi is optional but must be performed if it is par; of the customary rites andceremonies of the parties. In Ram Singh V. Sushila Rai the Supreme Court, declared the marriage as void, as this customary ceremony common to both parties, had not been performed ix) Registration (optional): Provisions are made to get the Hindu marriage, duly performed as per the rites and ceremonies of parties, registered at the office of the sub-registrar of marriages. Application in prescribed form should lxfiled duly signed by all parties concerned. A certificate of Registrationwill be issued by the Registar if all formalities have been complied with.This is only an enabling provision, to register, after the Hindu marriage is duly performed (Sn. 8). Void, Voidable marriages : The Hindu Marriage Act has classified marriages into Valid. Void and Voidable marriages (Conditions of valid marriage are stated above conditions (i) to (viii). Void and Voidable Marriages Void : i) If an essential requisite of the marriage is violated, the marriage is void ab-initio. ii) The spouses are not recognised as husband and wife. They do not get the Marital status.Children are considered legitimate, and are entitled to maintenance only. They get no status on coparcener with rights there of. (sn.16). iii) Either of the spouses may put an application for the annulment of the marriage. iv) Circumstances : Sn. 11 a) Marriage within the prohibited degrees of relationship, is void ab initio. (b) Marriage within the sapinda relationship is void ab initio. e) Marrying a second time when the first wife is living (Bigamous marriage). d) Non-observance of saptapadi where according to custom it must be observed as part of the customary rites and ceremonies (Ram Singh and Sushila Bai). Voidable : If there is violation under special circumstances affecting the interests of a spouse. The spouses, have status as husband and wife until the marriage is declared void, by the court, at the option of the affected party. Hence, the marital status changes, when the court declares the marriage as void.Children are legitimate and have the right to maintenance sn . 16. Only the affected spouse may prefer an application to set aside the marriage. Circumstances : Sn. 12 Consent obtained by force or fraud. Application should be filed within one year of the force or fraud and the petitioner should not have lived with the other spouse, after the force or discovery of fraud. If the wife is pregnant at the time of the marriage by a person other than the husband the marriage is voidable at the instance of husband. At the time of the marriage, he must be ignorant of the fact, and he must file an application within a year of knowing the facts. Leading cases: (Supreme Court) M.M. Nanavati V. Sushila; Shivaguru V. Saroja. The facts were proved in both these cases. Divorce wasgranted. c) Husband impotent and marriage not consummated. (Lead ing case Yuvaraja Singh V. Yuvarani Kumari). d) Spouse incapable of giving consent, due to unsoundness of mind and mental disorder. Restitution of Conjugal Rights (Sn. 9) : Where a spouse withdraws from the society of the other withoutreasonable cause, the aggrieved party may apply to the District court for a decree of restitution of conjugal rights. The court looks to the truth of the statement made, the validity of the reasons tendered and also to whether there are any other grounds to reject the application. If it finds satisfactory answers to the above, it gives a decree. (Gangamma Vs. Hanumanthappa). If a spouse is suffering from incurable or infectious diseases, the court will not issue a decree for restitution. Scope of the decree : The decree given by the court is merely ;i directive to the parties to realise their duties or responsibilities and to live together. The court can only lead a horse to water, but cannot make it drink! Restitution is based on the theory that both husband and wife are entitled to the society of each other. There was no remedy in case a spouse did not oblige undar this. This was introduced in England through the Court to enforce by a decree and force the spouse to return to the other. Since the decision of Jadunath Bose V. Shamsonisa Begam, the Courts have taken jurisdiction in India. This section gives this Jurisdiction to the District Court. With amendment of 1976,the burden of showing the reason is on the spouse who has withdrawn from the company of the other. Judicial Separation : Sn. 10 of the Hindu Marriage Act provides for Judicial separation. The Amendment of 1976 has made drastic changes in as much15 as the grounds for judicial separation are the same as for divorce. Earlier, there were different grounds. Petition : The petition should he presented to the District Judge praying for a decree for judicial separation. The grounds must be set out. Here also there are two additional grounds for the wife as in the case of petition for divorce. When the decree is passed, it shall no longer be obligatory for the petitioner to cohabit with the other spouse. Such a decree may he rescinded if the court is satisfied with the truth of the statements madeby a party or by both. This is an extraordinary power of the Court. A petition may be made for marriage solemnised before or after the Act. This remedy is opposed to restitution of Conjugal rights. In restitution, the party seeks a direction from the court to force the other spouse to resume cohabitation but in judicial separation the party seeks permission to secure freedom from the other. The marriage tie is not broken in either case. Grounds for Judicial Separation : Briefly the Grounds are : 1. Adultery. 2. Cruelty. 3. Desertion for 2 years. 4. Conversion. 5. Unsoundness of mind or mental disorder. 6. Virulent leprosy. 7. Venereal diseases in a communicable form. 8. Renunciation (sanyasa). 9 Disappearance for 7 years. Additional Grounds to the wife (Bigamy) to get judicial separation : i) Husband marrying again. ii) Husband guilty of rape, sodomy or bestiality. iii) Decree of maintenance by Court to wife and non cohabitation for one year. iv) Wife marrying before 15 years of age but repudiating the marriage before attaining 18. (For details and explanation with cases refer grounds for divorce). Grounds for divorce. Sn. 13. The last desperate resort of the couple is divorce according to the Hindu Marriage Act 1956 and the Amendment Act of 1976. The aggrieved party may file an applicatiqn to the District Court. The party must establish any one of the grounds stated in this Act to obtain a decree of divorce. There are eleven grounds. In addition, the wife has four special grounds for divorce. Thej court may conduct in camera proceedings. Only on clear proof of aqy one of the statutory grounds, the court may grant a decree for divorce. Grounds: Adultery: The Amendment has omittejd the reason 'living in adultery'. Hence if the wife or husband had, after solemnisation of marriage, sexual intercourse with any other person than the spouse, it will suffice. Adultery is a secret act and hence proof is difficult. Circumstantial evidence may be established to lead to a fair inference. High standard of proofis required. It must go bevond suspicion. Mere opportunity available to the spouse is not enough.! Mere letters by paramour will not suffice. (Supreme Court: Chandra Mohini V. Avinash Prasad) The leading case is Russel V. Rusell: Evidence of non-access to the wife, during a period prior to the birth of a child, was no allowed by the House of Lords. The other leading cases are Laxman Vs. Meena.and Pushpadevi v. Radheshyam (1972). Cruelty : One of the spouses treating the other with cruelty, is a ground for divorce. Cruelty is of two kinds (i) Physical and (ii) Mental: Violence to life, limb or danger to health is physical (Birch V. Birch). In Russel V. Rusell, the House of Lords held that legal cruelty is any conduct which would make marital life physically impossible. Mental Cruelty : Intention of one spouse to inflict cruelty is necessary, though not essential; ill-treatment, attributing unchastity., etc. In fact cruelty may be of infinite variety. In Dastane V. Dastane (1975) the Supreme Court laid down the standard of proof and held the court is satisfied when there is a preponderance of probabilities test. Physical injury or mental injury is judged by the court. Poster v. Poster; Gipsy; v. Gipsy ; Poring for prostitution (colemam v.oleman) ill-treating pregnant wife: King v. king, etc Desertion : For two years, before presenting the applicaon. The leading cases are : i) Bipinchandra V. Prabhavati ii) Tickler V Tickler iii) Lakshman V. Meena wife wilfully deserting husband iv) Brewer V. Brewer. For desertion two essentials are to be proved. 1) The factum of separation 2) Animus deserendi i.e., intention to bring cohabitation perma nently to an end without the consent of the other party. Desertion is a matter of inference to be drawn from the various facts and circumstances. Desertion commences when the fact of separation and .animus deserendi co-exist. But it is not necessary that they should commence at the same time. The De facto separation may have commenced without the necessary animus or it may be that the separation and the animus deserendi coincide in point of time. Desertion means the desertion of the petitioner by the other spouse to the marriage without reasonable cause and without the consent or against the wish of that party. This also includes the wilful neglect of the petitioner by the other spouse. In its essence desertion means the intentional personal forsaking and abandonment of one spouse by the other (Bipinchandra Vs. Prabhavati). It is the total repudiation of the obligation of the marriage. Devi singh v. Susheela and Jyotichandra v. Meera Guha. Conversion : If the other spouse has ceased to be a Hindu by conversion to another religion, the affected party may file a petition for divorce. Conversion to Christian, Muslim or Jewish religion is a ground for divorce. Of course, a party cannot take advantage of his own conversion to claim divorce. Unsoundness of mind : Incurable unsoundness of mind or continuous mental disorder of such dimension that the other spouse cannot reasonably live together. Mental disorder means mental illness, undeveloped mind, Psychopathicdisorder or Schizophenia. The disorder shows abnormal aggressive or seriously irresponsible conduct of the person. Unsoundness : As per 1976 Amendment unsoundness should be incurable or permanent in nature, Banidevi v. banerji: wife had incurable unsoundness.If husband did not submit for medical examination, inference can be drawn against him Shanta Devi v. Ramesh Chamda. Leprosy : It must be virulent and incurable. Under the amendment Act of 1976, no period is fixed. But, the other spouse must be suffering from this disease upto the date of the decision (Padma Rao V. Swaraj Laxmi). Venereal disease: The other spouse must be suffering from venereal disease in a communicable form. The Amendment has omitted the period of time. The petitioner should not take advantage of this ground by himself communicating this disease to the other spouse. Renunciation : There must be a genuine renunciation to enter the religious order, Sanyasa. This is civil death when there is complete and final withdrawal from all wordly affairs, hence, the other spouse may get the marriage dissolved. Disappearance : If the other spouse is not heard of for 7 years and above there is a presumption of death and hence, this is a ground for divorce. The burden is on the party asserting that the other spouse has disappeared (Evidence Act). Non cohabitation : If there has been no resumption or cohabitation for one year and above after the decree for judicial separation, then, this can be a ground for divorce. No restitution : If for one year or above, there is no restitution of conjugal rights it is a ground for divorce. Special grounds for the wife : In addition to the above grounds, the wife has the following grounds for divorce. a) Remarriage by husband. b) Rape, Sodomy or bestiality of the husband. c) If the wife has obtained a decree for maintenance (S. 125 Cr. P. C.) etc. provided since the date of the decree there is no cohabi tation for one year. d) If the wife is married before 15 years of age, and if she repu diates before attaining 18 years, she may file a petition for divorce. Divorce by Mutual consent: Sn. 13 (b) provides that any spouse may file a petition for divorce in the District court on the ground. a) That they are living separately for one year or above. b) That they have not been able to live together. c) That they have mutually agreed that the marriage should be dissolved. Procedure: (i) After 6 months of filing the application, but before 18 months, (if the parties have not withdrawn the case), the court if satisfied about the statements made, may pass a decree for divorce : ii) No petition can be filed within one year of the marriage. Exception : Exceptional hardship of the petitioner is a special circumstance to entertain a petition within one year. The court will issue suitable orders regarding children, if any. The court examines whether there forced is consent fraud or undue influence. No specific reasons, as in case of divorce, under sn 3, need be proved. The court endeavours to reconcile' if not possible, a decree of divorce may be passed. Leading cases Sumatidevi v. Premnath. Ravi shakar v. Sharada. It was held that nothing more than what 13(B) says need be proved before the court. No petition within one year of marriage in entertained except in exceptional circumstances Meghanath Nayar v. Susheela : Here the court has given examples of exceptional hardship: Amendment to Sn 13 by adding 13 C D and E to make divorce easier Not yet passed by Parliament.May 2012

Definition :Company The Companies Act 1956, defines 'company' as a Company formed and registered under the Companies act. A company is a legal or juristic person, apart from its members, capable of rights and duties of its own, and endowed with the potential or perpetual succession and a common seal. It is not a novelty, but an institution of very ancient date, it can sue or be sued. It can own and dispose of properties. Registration & Incorporation (ii) Procedure: An application in the prescribed form is to be filed with the "Registrar of Companies" along with 1. Memorandum of Association 2. Articles of Association 3. Declaration that all the statutory requirements of Companies Act have been complied with. This must be signed by an Advo cate or Chartered Accountant, and one of the directors, or Secretary. The necessary fee should be paid. If the Registrar is satisfied that all the requirements are complied with he registers and places the name of the company on the Register of companies and issues a certificate of incorporation as a Limited Company. The Company is born on the issue of the certificate. The validity of it cannot be challenged in any court (The remedy is to claim for winding up). Private Company: It may start business, soon after incorporation. But a Public company must take out a certificate of commencement of business from the Registrar by filing an application, signed by the Director or the secretary and fulfilling certain statutory conditions. Advantages of Registration: Corporate Personality: The outstanding feature of a company is its status as an independent corporate person. By incorporation, the company becomes vested with the legal personality. The leading case is Solomon Vs. Solomon & Co. Ltd. Solomon was a boot and shoe manufacturer. His business was sound, he incorporated a Company called Solomon & Co. Ltd., for running the business. The seven subscribers to the Memorandum were Solomon, his wife and a daughter and four sons. Solomon and twosons formed the Board of Directors. The business of manufacturing was transferred by Solomon to the company at a cost £ 40,000. In the company, Solomon had 20,000 shares of one pound each (The company had a debenture of £ 10,000/- to be given to Solomon). Within a year the company went into liquidation. The creditors who had advanced to the Company, sued and claimed that Solomon & Co. was not a 'Company'. Held, Solomon & Co. was a Company as it fulfilled all the legal requirements of an incorporated Company; it was a juristic person different from its subscribers. Its liability is therefore limited. Limited Liability: This is a privilege and an advantage, in-as-much as the liability is limited to the extent of the shares held by the shareholders and no liability arises beyond this. The members are not the owners of the company and are not liable to its debts. The company is independent and meets its obligations. Succession: There is perpetual succession and the company never dies. The membership may be changing from time to time, but this will not affect the company or its continuity. The death or insolvency of a member will not affect it. Members may come and go but the company goes on forever. Vested ownership of company: The company as a legal person, may acquire, hold and dispose of property. It is the owner of all its assets and capital. Hence, the shareholders are not the owners. Shares are transferable : The shares (and other interests) of any member are a movable property and are transferable, as per the Companies Act. Once the Company is incorporated, a shareholder may sell his shares in the open market and get back his investment. Capacity to sue and be sued: As a body corporate, in its own name, a company may sue or be sued. This is one of the essentials of the legal personality of the company. Illegal Associations : Large partnerships trading without registration create confusion and uncertainty and many evils flow from them. Hence, to arrest this activity sn. 11 (2) of the Companies Act provides that if a company, Association or Partnership is formed with 20 or more persons (10 in case of Banking business) to do any business, and acquire gains or profits then it should be registered as a Company under the Companies Act. If not so registered it becomes an "illegal Association". Consequences of illegality: i) As it has not juristic status, it cannot enter into contract. Each member becomes personally liable and also liable to a fine upto Rs.1000/ii) No suit or action can be brought in the name of the Company. iii) Winding up provisions are not applicable and hence cannot be wound up under the Act. iv) Claims between members are also not tenable. Leading case Badari Prasad V. NagarmalThe Supreme Court refused to grant any relief as the Association was illegal. In Dayal Singh V. Des Raj (Punjab) 20 persons engaged in manufacture of "Trunks" formed an "Association', applied to the controller for Steel Quota, got the quota and distributed among themselves. It was not a regd. association, The Court held that it was an illegal association and no suit would lie for dissolution and accounts.

A- SHORT - QUESTION Elaborate powers of Vice President. Centre State Relations- What is special leave petition U/A 136 ? Writ jurisdiction of SC ? Discuss the procedure for passage of Money Bills. Discuss Money Bill and Finance Bill. Role of Governor Salient features of the Indian Constitution. Single citizenship Financial Emergency. Abolition of Untouchability. Citizenship under Indian Constitution Cultural and Educational Rights of Minority.**** Definition of Law. Doctrine of Eclipse**** Doctrine of Severability. Double Jeopardy. Emergency and Fundamental Rights. Equal Protection of Law Explain Freedom of Press. Explain the concept of equality before the law with the help of cases. Free Legal Aid Freedom of Assembly Freedom of Speech and Expression. Fundamental Duties Fundamental duties towards women Parliamentary Privileges. Protection against arrest and Preventive detention. Right of Minorities. Right to Clean Environment Right to Education. Right to Equality Right to free legal aid Right to work. Rule of Harmonious construction. Uniform Civil Code What are parliamentary privileges to members? What is concept of Protection against Double Jeopardy? What is meant by Citizens by domicile? Writ of Certiorari Writ of Mandamus. Writ of Quo-Warranto Write a brief note on Fundamental Duties. B - LONG - QUESTIONS Write a note on preamble to the Constitution. ‘‘Art 368 does not enable Parliament to alter basic structure of framework of the Constitution’’. Explain with decided cases. ‘The decision of the Speaker while applying Anti defection law is open to judical review’’. Explain the statement with the help of decided cases. What do you understand by Federalism ? Explain distribution of legislative powers between centre Write a note to explain the role of Finance and Planning commission ? Describe different powers vested in the President of INDIA Discuss the significance of the Preamble of the Indian Discuss in brief the Administrative relations between the Centre and the State. Discuss Parliament’s power to amend the Constitution under Article 368 of the Constitution. Discuss procedure for passing of “Money Bill” in the Parliament. What is the difference between a financial bill and money bill ? Explain in detail position and powers of Governor. Explain Parliamentary privileges under Constitution of India. with the help of case-laws the evolution of the law relating to tortuous liability of the state. Write a descriptive note on ‘salient features of Indian Constitution’. Write a descriptive note on National Emergency. “Article 14 forbids the class legislation but permits classification.” Discuss the scope of Doctrine and Reasonable classification in light of the above statement. “Fundamental Rights and Directive Principles are complimentary and not contradictory to each other.” Comment. “Supreme Court has accorded widest possible interpretation to Right to life and liberty under Article 21.” Comment. Critically examine the Doctrine of Judicial Review with the help of leading cases. Define ‘State’ within the meaning of Article 12 of the Constitution of India referring to the relevant case laws. Define state. Explain the term ‘other authorities’ under Article 12 of the Constitution. 7.Define state. How important it is for modern states to Protect Fundamental Rights? Describe Right to equality under Art.14 of the constitution. Describe the relationship between Fundamental Rights and Directive Principles of State Policy. Discuss the growth and importance of Public Interest litigations in India. Discuss the impact of Proclamation of Emergency on Fundamental Rights. Discuss the nature and scope of Freedom of speech and expression. Is it subject to any restrictions? Discuss the scope of Article 21 of the Constitution through a comparative analysis between A.K. Gopalan’s case and Maneka Gandhi V/s. Union of India. Discuss the scope of the privilege against self-incrimination. Discuss the scope of the right to freedom of religion guaranteed by the Constitution of India. Discuss with the help of case-laws the interpretation of the term ‘Other authority’ in Art. 12. Enumerate the Fundamental duties. Are they enforceable in the court of law? Examine the Fundamental Rights available to the linguistic and cultural minorities under Constitution of India. Explain the concept of Public Interest Litigation with relevant case laws. Explain the Constitutional provisions as to citizenship in India. Explain the nature and scope of Directive Principles. Explain the nature and scope of Judicial Review. Explain the need and status of Fundamental Duties in Constitutional Setup. Explain the scope of freedom of speech and expression under Indian Constitution. Mention the restrictions on such freedoms. Explain the term ‘State’ with the help of case laws. Explain with the help of case-laws, how the interpretation of Art. 21 underwent a sweeping change over a period of time. Explain, principles of Ex-Post facto law and Double Jeopardy. How Fundamental Rights and Human Rights are related to each other?Is judiciary a part of State under Art. 12? Discuss with the help of case-laws. Right to life is source of several Fundamental Rights. Explain. State how Fundamental Rights are enforced? State the six freedoms guaranteed by the Constitution under Art. 19. Discuss any two in detail with case laws. Throw light on the inter-relationship between Directive principles and Fundamental Rights. Cite case-laws wherever necessary. What are the underlying objects behind the Directive Principles of State Policy? What is the scope and extent of the freedom of speech and expression guaranteed by the Constitution along with reasonable restrictions? What is the scope and extent of the freedom of speech and expression guaranteed by the Constitution along with reasonable restrictions? Write a detailed note on ‘Reservations’ and theory of reasonable classification. Write a detailed note on Freedom of religion under Constitution of India.

Code of civil procedure 1908 Important questions 2006 to 2019 (SHORT QUESTIONS ) Who is a legal representative? What is Review? What is Joinder and non-Joinder of Parties? What are the Objects of Limitation Act? Territorial Jurisdiction Suits by or against Government. Set off and counter claim. Revision and Review Res-Judicata Mesne profit Interpleader Suit General principles of Limitation. Explain the concept of sufficient cause Essentials of valid acknowledgment Continuous running of time. Condonation of delay and grounds thereof Caveat. Adjournments. What is place of suing? Sufficient cause for condonation of delay. Who is legal representative? Interpleader Suit Transfer and withdraw of cases Modes of execution What is foreign judgment? Mesne Profit Rejection of plaint What is compensatory cost? Frame of suit Hierarchy of courts Amendment of pleading Explain Discharge and Acquittal What is Charge Sheet? Who is a Probation Officer? What is Private Complaint? Bailable and Non-Bailable offence Public prosecutor Summary Trial Child Welfare Committee What is an Interpleader suit? Explain the principle of Res Judicata. What is Garnishee order? Explain the concept of continuous running of time. Set-off and Counter claim Suit by or against Government Appointment of Receiver General Principles of Limitation State effect of fraud and mistake on limitation. ‘Exclusion of time in legal proceedings.’ Explain. Explain condonation of delay. What is meaning and purpose of limitation? Temporary injunction Indigent person Review Issues.

Short - Questions 1. Alteration of Conditions of Service 2. Voluntary Arbitration. 3. Discuss History of Trade Union. 4. Board of conciliation 5. Amalgamation of trade union 6. Closure 7. Collective bargaining 8. Dissolution of trade union 9. Industry 10. Jurisdiction of Industrial Court 11. Laour Court 12. Lay-Off 13. Lock-Out 14. Principles of Natural Justice 15. Registration of Trade Union 16. Retrenchment 17. Unfair labour practices on the part of the workmen 18. Work committee. 19. Write Constitutional provisions for Labour Welfare. 20. Define Trade Union. Discuss the Right and Liabilities of Trade Union 21. Describe the Procedure for recovery of money due from employer. Long Questions Define ‘Industry’. Can hospitals be treated as Industry ? Discuss with the help of case laws. Define and explain, what is ‘misconduct’. Describe the procedure of a disciplinary proceeding. Define Retrenchment. Explain the procedure of Retrenchment of workmen under Chapter VB of the Industrial Disputes Act, 1947. Discuss rights and immunities of office bearers of a Registered trade union. Discuss the concept and nature of standing orders. Explain the process of certification of standing orders. Discuss the constitutional perspectives of Labour Welfare. Discuss the role of the conciliation officer in the resolution of Industrial Disputes. Elaborate ‘strike’. What are the general prohibitions with respect to strike ? Elaborate the powers and functions of Labour Court and Industrial Tribunals. Examine the term ‘Industry’ in the light of judicial pronouncements. Explain the concept of collective bargaining Explain the procedure for certification of standing orders. Explain the term 'Domestic Enquiry'. What are the steps involved in conducting domestic enquiry ? Explain, how disciplinary proceeding is conducted in an Industry. What are the authorities established under I.D. Act for settlement and adjudication of Industrial disputes ? What are the safeguards regarding alteration of conditions of service during pendency of litigation ?Discuss in detail. What is meant by Closure ? Explain the procedure for valid closure under Chapter VB of the Industrial Disputes Act, 1947. Write a detailed note on concept and nature of Standing Orders. Write a note on role of Voluntary Arbitration in resolution of industrial disputes with the help of judicial decisions.

Short Answer Questions 1. Easement 2. Transfer of property 3. What is a Notice ? 4. What may be transfered ? 5. Essentials of valid gift 6. Execution of will 7. Explain the concept of Lis Pendens. 8. Mortgage 9. Operation of transfer. 10. Charge 11. Conditional Transfer 12. Registration of Gift 13. Sale 14. What is Fraudulent transfer ? 15. Actionable claim 16. Doctrine of Election.** 17. Rule against perpetuity. 18. Vested interest and Contingent interest. 19. What is Conditional transfer ? 20. Explain the concept of ‘Exchange’. 21. What are ‘Fraudulent Transfers’ ? 22. Subrogation 23. Part performance 24. Redemption 25. Spes succession. Long Answer Questions 1. Explain in detail the Doctrine of part performance. 2. What do you mean by conditional transfer ? How is it different from Regular transfer ? 3. State the different modes of acquiring easement. 4. Define mortgage. Discuss various kinds of Mortgage. 5. Define Property. State its kinds and explain them. 6. Define lease. Explain various modes of determination of lease. 7. Define the term ‘exchange’ in detail. 8. Define ‘Licence’. State the difference between Lease and Licence. 9. Define sale. State difference between sale and exchange. 10. Who is capable of transferring property ? What can be transferred ? 11. Discuss various modes of acquisition of easementary rights. 12. Explain meaning of ‘Ostensible owner’. Whether transfer by him is valid under TP Act ? 13. What is a gift ? How is gift of immovable property effected ? When does a gift become. 14. Discuss in detail the rights and liabilities of seller and buyer. 15. What is testamentary succession and intestate succession ? revocable ? 16. Define transfer of property. Describe those properties which can not be transferred. 17. Define easement. What are types of easement ? 18. What do you mean by Licence ? State the essential features of Licence. 19. Explain the provisions relating to transfer for the benefit of unborn person. 20. Explain the rights and the liabilities of lessor and lessee. 21. Explain the meaning of Actionable Claim. Write about transfer of Actionable Claim. 22. What is meant by Mortgage ? State its kinds. Elaborate any two.