Law 503 PDF

Chanderprabhu Jain College of Higher Studies
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An ISO 9001:2008 Certified Quality Institute
(Recognized by Govt. of NCT of Delhi, Affiliated to GGS Indraprastha University, Delhi)
Class : 10th semester
Paper Code :503
Subject :drafting ,pleading, convincing
Unit 1 to 4 DRAFTING OF PLEADING AND CONVEYANCING
- General Principles of Drafting and Relevant Rules
CIVIL
- Plaint
- Written Statements
- Interlocutory Applications
- Original Petition
- Affidavit
- Execution Petition
- Memorandum of Appeal and Revision
- Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL
- Complaint
- Criminal Miscellaneous Petition
- Bail Application
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- Memorandum of Appeal and Revision
CONVEYANCING
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
- Will
- Agreements
DRAFTING OF PLEADINGS AND CONVINCING
GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES
The art of drafting the pleadings has not yet fully developed in spite of the increase
in the civil litigation. As a matter of fact, the art of pleading should be the
foundation course and great emphasis should be laid on this paper. Because of this
absence of rigorous training, the young lawyers often indulge in prolixity rather
than clarity and conciseness. Many dead-sure-win cases drag on for years in the
courts only because of faulty drafting. Irrelevant matters, unnecessary details are
often included and the facts placed before the lawyer by his client are not
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marshaled. The result is that the martial facts are often mixed up with inessential
matter.According to Lord Halsbury - "Where system of pleading may exist, the
sole object of it is that each side may be fully alive to the questions that are about
to be argued in order that they have an opportunity of bringing forward such
evidence as may be appropriate to the issue"Pleading is an art, of course, and art
which requires not only technical and linguistic skill but also an expertknowledge
of the law on the given point brought before a lawyer. Even experienced lawyers
and attorneys are not infallible and sometimes they also make mistakes. However,
in the matter of pleadings longer
experience and a great linguistic acumen are both essential ingredients. What
ultimately matters is howclearly and systematically have the facts been presented
before the court of law.
It is a matter of common knowledge that when a person comes to seek the

assistance of the court of law inany matter, he has to prepare a statement of his
claims, and the facts on which such claims are founded.Such statements fully
drawn up, setting out all contentions, are called "pleadings". Thus pleadings are the
foundation of all sorts of litigation; no judicial system in the world can do justice in
any matter unless anduntil the court of justice is fully aware as to the claims and
contentions of the plaintiff and of the counterclaims and defences of the
defendant.In the ancient times when the king was the fountainhead of all justice, a
petitioner used to appear before theking in person and place all facts pertaining to
his case before his majesty. After such oral hearing, the king used to summon the
other party and thereafter listen to the defence statements put forward by the
person so summoned. There used to be same sort of cross examination or cross
questioning of the parties by the
king himself. Thereafter, the decision was announced. There was hardly any
system of written statements;all the same "pleadings" did exist, although they were
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oral. The king and his courtiers kept on what may be called a mental record of the
proceedings. Perhaps only r. few serious and otherwise significant cases, the
decisions were recorded .With the passage of time, judicial system underwent a
change. The administration at justice was separatedfrom the executive and
assigned to the court of law. Complexity of resulted in enormous litigation, and
oralhearing of the ancient times became almost impossible. Scribes used to keep
records of all theproceedings Gradually this procedure was also abandoned and the
litigants were allowed to bring theirclaims and contetions duly drawn up to fie
them before the Honb6e courts. When this change exactlyhappened, it is difficult
to say. Experience was a better teacher; and the changes in court procedure took
place not only in the light of the past experience but also in the face of expediency.
Written proceedings 2made the task of the courts of law easier and less
complicated than the earlier oral proceedings. By the turn
of 19th century the procedure of pleadings has become fairly elaborate and
systematized.When the civil codes came to be drafted, the principles of pleadings
were also given statutory form. Vide order VI Rule 1 "pleading". Shall mean plaint
or written statement. Mogha has elaborated this definition
when he remarked that "pleadings are statements, written, drawn up and filed by
each party to a case,stating what his contentions will be at the trial and giving all
such details as his opponent needs to know in
order to prepare his case in answer".The document stating the cause of action and
other necessary details and particulars in support of the claim of the plaintiff is
called the "plaint". The defence statement containing all material facts and other
details filed by the defendant is called the "written statement". The written
statement is filed by the defendant as an answer to the contentions of the plaintiff
and it contains all materials and other objections which the defendant might place
before the court to admit or deny the claim of the plaintiff. Pleadings are, therefore,
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the foundation of any litigation, and must be very carefully drafted. Any material
omission in the pleading can entail serious cones quinces, because at the evidence
and argument stages, parties are not permitted to depart from the points and issues
raised in the pleadings, nor can a party be allowed to raise subsequently, except by
way of amendment, any new ground of claim or any allegation of fact inconsistent
with the previous pleadings of the party pleading the same. In some cases the court
may allow amendment of the plaint or the written statement on the application of a
party. This can be done under order VI Rule 17 of Civil Procedure Code. Another
case of departure is where a party pleads for set-off .Pleadings contain material
facts, contentions and claim of the plaintiff, and the material facts, contentions
,denials or admissions of claims by the defendants. There may also be counter
claims by the defendant which may of two categories - (i) a claim to set-off against
the plaintiff's demand is covered by order 8 Rule
6, and (ii) and independent counter claims which is not exactly set off but falls
under some other statute.
While the former is permitted to be pleaded by the courts, the latter is not, but
when the .defendant files such counter claims, the written statements is treated as a
plaint.
Object of Pleadings
The whole object of pleading is to give a fair notice to each party of what the
opponent's case is. Pleadingsbring forth the real matters in dispute between the
parties. It is necessary for the parties to know each other's stand, what facts are
admitted and what denied, so that at the trial they are prepared to meet
them.Pleadings also eliminate the element of surprise during the trial, besides
eradicating irrelevant matters which are admitted to be true. The facts admitted by
any parties need not be pursued or proved. Thus the pleadings save the parties
much bother, expense and trouble of adducing evidence in support of matters
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already admitted by a party, and they can concentrate their evidence to the issue
framed by the Court in the light of the facts alleged by one party and denied by the
other.There is another advantage of the pleadings. The parties come to know
before hand what points theopposite party will raise at the trial, and thus they are a
prepared to meet them and are not taken by surprise,which would certainly be the
case if there were no obligatory rules of pleadings whereby the parties
arecompelled to lay bare there cases before the opposite party prior to the
commencement of the actual trial.On the basis of above discussion we deduce the
following fundamental rules of pleading, which also havebeen incorporated in
order VI of the Civil Procedure Code 1908.
3Fundamental Rules of Pleadings
1) That a pleading shall contain, only a statement of facts, and not Law;
2) That a pleading shall contain all material facts and material facts only.
3) That a pleading shall state only the facts on which the party pleading relies and
not the evidence by
which they are to be proved,
4) That a pleading shall state such material facts concisely, but with precision and
certainty.
1. Facts and Not Law: One of the fundamental rules of pleadings embodied in
order VI rule 2 is that apleading shall contain and contain only a statement of facts
and not law. And it is for the judge to
draw such inferences from those facts as are permissible under the law of which he
is bound to takejudicial notice. A judge is bound to apply the correct law and draw
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correct legal inferences and facts,even if the party has been foolish to make a
written statement about the law applicable of those facts. If a plaintiff asserts a
right in himself without showing on what facts his claim of right is funded or
asserts that defendant is indebted to him or owes him a duty without alleging the
facts out ofwhich indebtedness or duty arises, his pleading is bad.The parties
should not take legal pleas but state the facts on the basis of which such
legalconclusions may logically follow and which the court would take a judicial
notice of. Thus where aparty pleads that the act of the defendant was unlawful, or
that the defendant is guilty of negligence,or that the defendant was legally bound to
perform specific contract, such a pleading would be bad.In such cases, the plaintiff
must state facts which establish the guilt or negligence of the defendant,or how the
particular act of the defendant was unlawful, of the fact leading to the contract
which thusbound the defendant.Thus in a declaratory suit, it is not enough-to plead
that the plaintiff is the legal heir of the deceasedfor this is an inference of law. The
plaintiff must show how he was related to the deceased, and also show the
relationship of other claimants, and other material facts to show that he was nearer
inrelation to the deceased than the other claimants.Similarly on money suit it is not
enough that the plaintiff is entitled to get money from the defendant.He must state
the facts showing his title to the money. For example, he should state that
thedefendant took loan from the plaintiff on such and such date and promised to
return the moneyalong with specified interest on a particular date, and that he
requested the defendant to return thesaid amount after the date but that he refused
to return the money. If some witnesses were presentwhen the money was lent or
when the demand was made or when the refusal by the defendant wasmade, the
fact should be stated specifically, for at the time of the trial the court may order the
plaintiffto adduce evidence in support of his statement, and then he can rely on the
evidence of thewitnesses in whose presence he had lent money or in whose
presence he had made a demand forthe return of the money.In a matrimonial
petition, it is not enough to state that the respondent is guilty of cruelty towards the
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petitioner-wife and that she is entitled to divorce. The petitioner must state all
those facts which
establish cruelty on the part of the respondent. She may state that her husband is a
drunkard and
used to come home fully drunk and in a state of intoxication he inflicted physical
injuries on her, she
should specify dates on which such incidents took place; or that the husband used
to abuse her or
beat her in the presence of her friends and relations or that after her marriage she
was not allowed to
visit her parents or that he was forcing her to part with her dowry, giving threats of
physical beating;
or that immediately after her marriage till date the respondent did not even talk to
her nor he
cohabited with her. It is such facts which can establish physical or mental cruelty.
In another example plaintiff files a suit for negligence and damages. It is not
enough for him to state
negligence. First of all the plaintiff must state those facts which establish the
defendant's duty
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towards the plaintiff. Thereafter, he must state how and in what manner was the
defendant guilty of
negligence. Thus he must state all the facts on which his plaint is based. The
inference of law to the
breach of duty should be left to the court because the correct legal principles will
be applied by the
court and the plaintiff cannot even add any prayer that a particular legal conclusion
which follows
must be applied. The only prayer that he may add is that the relief may kindly be
granted to him.
Omission to state all the fact renders the pleading defective whatever inferences of
law might
otherwise have been pleaded. Such a plaint may be rejected on the ground that it
discloses no
cause of action. The plaintiff or the defendant as the case may be, and his counsel
must be on their
guard not to omit any facts and straight-a-way jump to pleading legal interference
without stating
such facts.
For example, in a suit for recovery of money for the goods sold, the defendant
should not just take
the plea that he is not liable. Such a statement is a plea of law, and can hardly stand
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his good defence his case will fail. In such a case the defendant must clearly state
that he did not
purchase any goods from the plaintiff nor was there an agreement to do so. He may
also state that
though the goods were sent to him, but he did not take the delivery as he had
placed no order
therefore or that the goods were sold to him on credit and the money was to be paid
to the plaintiff
after the sale of such goods and the goods were still lying with him unsold, and that
he was willing to
return the goods to the plaintiff in accordance with the written or oral
understanding that in case of
the goods remaining unsold the same shall be taken back by the plaintiff. Such
facts would be valid
pleas.
In another example of a suit for defamation and damages, it is not sufficient for the
plaintiff to state
that the defendant defamed him and therefore he was entitled to damages or special
damages. The
plaintiff must state all the facts of the defendant act or acts such as his public
utterances in which he
named the plaintiff and made remarks about his character or profession or the
publications in which
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he was painted in a manner as would in the opinion of a common man lower him in
the eyes or
estimation of society. Wherever possible the plaintiff must give the exact words
spoken or used in
the entire sentence or statement and also give the general, grammatical or implied
meaning of such
words spoken or used. Wherever there is any ambiguity, he may take the plea of
"inuendo" and
state how such a remark was commonly understood by persons known to him.
Thus the plaintiff
should build his case on facts from which the conclusion would naturally and
logically follow.
Examples of Bad Pleading:
A few instances of bad pleading for the benefit of the law students who whish to
join the Bar: A lawyer
should be careful while drafting a plaint or a written statement. Sometimes, there is

slight difference
between a statement of fact and a statement of law and a lawyer fails to notice it.
The mental
computer must constantly be at work marshalling the facts and separating such
facts from legal
inferences.
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5 I. The respondent has deserted the petitioner for a statutory period of one year
and above,and hence the petitioner is entitled to divorce. Here the legal inferences
have been pleaded.
II. The defendant has not so far paid back the money and hence the plaintiff is
entitled to
foreclose. Here only the legal plea has been taken. The plaintiff should have stated
all the facts
of mortgage and the details of the conditions pertaining to the mortgage.
III. The alienation of property by the father of the plaintiff was not made for legal
necessity or it
was made for immoral purposes and such alienation is not binding on the plaintiff.
Almost the
entire statement is a plea of law and does not state the facts. He should state the
nature of
alienation, the purpose for which, and the circumstances under which, the
alienation was made,
and whether it was made in the interest of the family. That at the time of the
alienation, no
particular benefit would have arisen to the family nor was the honour of the family
at stake
should be stated.
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IV. That the plaintiff has lost all his interest in the family property by virtue of his
adoption by
another family and therefore he is not entitled to any relief. The suit is
misconceived. The entire
statement contains a proposition of law. The defendant must state all facts relating
to the
adoption of the plaintiff whether there was actual giving and taking of the plaintiff
and by whom
and in whose presence.
V. That the defendant is liable to render account of income and expenditure in

respect of the
mortgaged property. The liability pleaded is a statutory liability which the court
will take notice of.
The plaintiff should however state all the facts and conditions of mortgage,
whether it was a
simple mortgage or a usufruct mortgage, and the terms and conditions of the
mortgage on the
basis of which such a liability on the basis of which such a liability is fixed.
VI. That the defendant has infringed his copyright and therefore he is entitled to
damages, in
addition to the account of the sales of all books sold so far and to the return of the
unsold ones, or
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that the plaintiff is entitled to an injunction against the defendant directing him not
to publish, sell
or otherwise pass on the said book. The plaintiff should state the details of the
infringement of
his copyright, and also give the passage I chapters I materials in fringed by the
defendant has
stolen the ideas or the material as such. If he states that infringement of ideas, then
he should
specify how his ideas, have been utilized with similarities in plan and sequences,
scenes,
settings etc.
VII. That the mortgaged property belonged to a joint Hindu family of which the
plaintiff is also a
member and that the second defendant could not have legally transferred the same
to the first
defendant without his consent. A proposition of law has been stated.
Sometimes the strict rule of pleading that legal inferences must not be pleaded and
only facts should be
stated is followed in a somewhat diluted form and the courts do not normally insist,
in such cases, on the
strict observance of the above rule. Occasionally, a plea of law is taken more for
the sake of clarity and to
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show inter-connection between various facts which otherwise may appear to be

disjoined. Such pleadings,
if they do not embarrass the other party, are generally tolerated by the Courts. In a
suit for recovery of
money, if the guardian of the minor defendant pleads that at the time of the alleged
loan the defendant was a
minor and hence incompetent to contract, such a plea would be tolerated though
strictly speaking the
6 inference of law stated is unnecessary. It should be remembered that where such

inferences of law are
tolerated, they should not be pleaded without pleading the facts. Thus when facts
are so correlated as to
justify the legal inferences which necessarily follow, the pleadings can be
tolerated. But when legal
inferences are pleaded without setting out the facts the pleading would be bad.
The rule stated above applies to cases which fall within the purview of the law
which the courts are bound to
take judicial notice of. For ex., Indian Courts are bound to apply the Indian law to
the cases in India. But the
Indian court is not bound to take judicial notice of the foreign law. Thus where the
pleadings make any
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reference to foreign law, or custom such foreign law or must be stated clearly with
proper reference to the
statute. Similarly custom may govern the parties to a suit and the Court may not
take notice of such custom
unless such custom is stated. In matrimonial matters custom has been recognised in
certain matters such
as marriage between the persons who are spind as or who area within the degrees
of prohibited
relationship. If a party proves that a custom prevailed in the community which

permitted such a marriage,
the pleading would be correct and not bad. Similarly in trade and commerce there
are many customs which
govern the business relations between the parties. Such customs ought to be
pleaded along with the facts.
At the same time, a custom which has been repeatedly brought to the notice of the
courts so that it has
acquired the force of law need not be pleaded, as the courts would take judicial
notice of such a custom.
The rule also permits the legal pleas denying the legal right of the other party. For
example, the defendant
can take a plea res-judicata as a valid defence against the plaintiff, or limitation can
be pleaded in defence.
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Where a landlord files a suit against a tenant as a trespasser, the defendant can take
the legal plea of
estopple under s.116 of the Evidence Act. Such pleas can be taken, and in fact,
must be taken at the first
instance by either if the parties, because if such pleas are not taken into the first
instances the defaulting
party will not be allowed to adduce evidence to prove it. Such a defect may not
even be removed by an
amendment of the pleading as the courts would not permit such an amendment as it
takes away a right
which has accrued to the party.
(2) Material Facts: when a litigant comes to a legal practitioner, he brings all facts
and circumstances
pertaining to a case. In fact, he tries to narrate each and every event which may
possibly have a remote
bearing upon the case. Not all such facts are important. If every thing were to be
included in the plaint, then
the plaint is likely to become so voluminous that the learned judge is likely miss
the essential track and be
guided by the inessentials.
What is necessary therefore are the facts which are material; facts which have a
direct and immediate
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bearing on the case, facts which are secondary or incidental may easily be omitted.
Of course, the lawyer
must weigh each fact and test its significance and relevance in relation to the given
case. Marshalling of
facts is what a good lawyer would always do before he sets them down in form of a
plain.
The second fundamental rule of pleading is therefore, that every pleading shall
contain and contain only, a
statement of the material fact as on which the party pleading relies for his claim or
defence. This rule is
embodied in order VI Rule 2 and it requires that -
I. the party pleading must plead all material facts on which he intends to rely for
his claim or defence
as the case may be; and
II. He must plead material facts only, and that no fact which is not material should
be pleaded, nor
should the party plead evidence.
7 The rule is indeed a strict one. The question would naturally arise: what are the
material facts? Indeed every
fact on which the cause of action or the defence is founded is material fact. The
purpose entertained by the
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rule is that every unnecessary and irrelevant fact need not be brought on record,
and the rule acts as a
damper to the litigants, habit of stating all details that strike their mind, whether
such details are relevant or
not, it necessitates the process of elimination on the part of the litigant. All facts
which will be required to be
proved at the trial in order to establish the existence of a cause of action or defence
are material facts. Then
there are other facts which do not directly establish the cause of action or defence
but which nonetheless
ate material facts in that the party pleading them has an inherent right to prove
them at the trial.
Whether a particular fact is material or not will depend upon the circumstances of
the case. A fact may not
appear to be material at the initial stage but it may turn out to be material at the
time of the trial. Thus if a
party is not able to decide whether a fact is material or not, or it he entertains a

reasonable double as to the
materiality of a particular fact, it would be better to include than to exclude, be

better to include than to
exclude, because if a party omits to state or plead any material fact, he will not be
permitted to adduce
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evidence to prove such a fact at the trial unless the pleading is amended under
order VI rule 17. The general
rule is that a party cannot prove a fact which he has pleaded.
The task of a lawyer is therefore rather difficult. He must observe the rule that only
material facts are to be
pleaded, and, at the same time, he must not exclude any fact which may seem
apparently unnecessary but
which may turn out to be material as the trial progresses. Thus he must visualize all
the possible directions
or dimensions which the pleadings are likely to assume. An experienced lawyer

would marshal all the facts
placed before him by his client and by correlating them, and after carefully
examining the interplay between
such facts, decide what facts are material to establish the cause of action or
defence. There after he would
prepare or rough or a mental outline of the pleading and submit all such facts to a
close analysis in order to
make sure whether if he is able to prove all such material facts he would succeed.
Bya process of
elimination he must also see whether by excluding certain seemingly immaterial

facts from the outline he
has prepared, he would still succeed. If he can return an affirmative answer, he

should exclude such
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irrelevant facts, but if the answer be in the negative, then he must include them
Another way of testing the
materiality of the facts would be to ask whether by proving a particular fact, he

would certainly establish the
cause of action or the defence.
The idea is that the pleading should not include any fact which would not assist the
party even if such a facts
is proved. And why at all waste energy, time and money is establishing the
correctness or otherwise of a fact
which does not advance the party's case? One of the reasons why the litigation
drags on for years is that the
litigants do not come to the point, there being much about nothing. In India the
courts are filled with all sorts
of litigation. The lawyers are taking briefs of all sorts and they are extremely busy.
They have hardly any
time to examine the materiality of the facts narrated to them by their clients. The
pleadings, therefore,
become un widely and voluminous, so much so that at the time of framing the
issues, the matter becomes
really a hard nut to crack. The litigation drags on withstanding the wishes of the
parties to the contrary. It is
the duty of the lawyers to ensure that the pleadings. conform to the rules laid down
in the code of civil
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procedure. They should be guided more by their own sense of proportion rather
than succumb to every
whim or eccentricity of their clients.
Instances of Material Facts: In a petition for judicial divorce on the ground of

desertion, the fact that the
respondent left the petitioner without his consent and without any justifiable
excuse is material. Any other
fact directly bearing upon her animus desrendi, such as her declaration before the
neighbors or other
relations that she is leaving the petitioner and that she would not like to go back to
him, is also material.
8 In a suit for ejectment of a trespasser from the land and for injunction it is
material to allege that defendant
"threatens and intends to repeat the illegal act" similarly if a party seeks a stay
order against any authority's
act of demolition his premises, shop or building he must allege that he is owner of
the property and the plans
or the map thereof was duly sanctioned by the appropriate authority. Or if a

government land, he must
allege that he has been in undisturbed possession thereof for over twelve years.
Such facts are material,
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because if proved, they will establish the cause of action.
In a suit for defamation, it is material to allege that the words were intended to
defame the plaintiff or at least
they were so understood by men at large, if the words are ambiguous, then
"innuendo" must be pleaded
that they were ironically used or were intended so to be understood.
Where a party claims the benefit of a special rule or custom then he must allege all
facts which bring the
case within the ambit of that special rule or custom. For example where a marriage
between two spindas or
between two persons within the degrees of prohibited relationship is challenged in

some property matter,
the party is challenging the validity of the marriage must allege that there was no
custom governing the
parties which permitted or sanctioned such a marriage between spindas. It is

material to allege the
existence of a long established family or caste custom governing the parties to the
marriage which
permitted or sanctioned such a marriage.
In a money suit, it is material to allege part-payment of the loan and also any other
fact which gives a new
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lease of three years' time to the loan in order to save the suit ITom the bar of
limitation.
When a plaintiff bases his claim on some document, it is material to state the effect
of such a document. For
example, where the case is based on a sale-deed, it is material to state that a

particular person has sold
property to him by a sale-deed dated so and so which was duly registered.
In a suit for specific performance of a contract it is material to allege that the

plaintiff has always been willing
and is willing to perform his part of the contract.
Examples of Facts not Material
In a suit on a promissory note, it is not material to state that the plaintiff requested
the defendant to make the
payment and he refused, because no demand is necessary when the promissory

note becomes due and it
is payable immediately.
Similarly in a suit for recovery of money for the goods sold, it is not material to
state that the goods belonged
to the plaintiff or that the goods were sold to the defendant on the belief that he
would honestly make the
payment.
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In the case of damages general damages are presumed to be the natural or probable
consequence of the
defendant's act. Such damages need not be proved. But special damages will not be
presumed by law to be
the consequence of the defendant's act but will depend on the special
circumstances of the case.
Therefore, it will have to be proved at the trial that the plaintiff suffered the loss
and also that the conduct of
the defendant resulted in the loss so suffered by the plaintiff. In such cases the
proof of special damages is
essential to sustain an action. A person has no right of action in respect of a public

nuisance unless he can
show some special injury to himself which is over and above what is common to
others.
Thus it is clear that whereas general damages may not be pleaded the special
damages must be alleged,
9 and all facts on which such special damages are based are material to the
pleading. They are material
because they will have to be proved. All such facts must, therefore, be mentioned
or state. With necessary
particulars to show what special damage the plaintiff suffered. For example in a
suit for defamation it will
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have to mentioned that services of the plaintiff were terminated as a result of a

particular article which
damaged the professional repetition of the plaintiff so much salary which he might
have continued to get but
for the publication of the defamatory article
Exception to the General Rules: The general rule as stated above is that only the
material facts should be
stated. The rule is, however, subject to the following exceptions:
i. The performance of occurrence of any condition precedent need not be pleaded

as its averments
shall be implied in the pleading. But where a party chooses to contest the
performance or
occurrence of such condition, he is bound to set-up the plea distinctly in his

pleading. However,
there are conditions which the law requires that they must be satisfied. For
example sec. 80 of civil
procedure code, requires a notice to the government where a plaintiff wishes to file
a suit against a
government official or state. He must clearly allege that such a notice has been
given. Similarly that
the notice has been given under S.111 of Transfer of Property Act, must be clearly
stated, as the law
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requires such a notice to be given.
ii. Neither party to a suit need allege any matter which the law presumes in his
favour or as to the
burden of proof of which lies on the other party, for ex. in a suit on a promissory
note the plaintiff need
not allege consideration as sec.118 of Negotiable instruments Act raises a

presumption in his
favour. It is also not necessary to state that the defendant executed the bond 'of his
own free will,
and without any force or fraud because the burden of proving any fact invalidating
the bond lies
upon the defendant. But the case is different when the defendant is a pardah nashin
lady. In that
case, the plaintiff must state that the bond was read out and explained to her and
that she executed
it of her own free will after having independent advice because in this case the
burden of proving
these facts lies on the plaintiff himself.
Regarding legal presumptions the exception applies to only such facts as the court
"shall presume" and
not to those facts which the court may presume", and therefore the facts falling
under the latter class
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must be pleaded.
iii. Another exception to the general rule are facts which are merely introductory.
Such facts only state
the names of the parties, their relationships, their professions and such
circumstances as are
necessary to inform the court as to how the dispute has arisen. Such facts are
hardly necessary or
material to the pleading, but they are generally tolerated and are set in the
pleadings by both the
parties in order to facilitate the court to take a stock of the situation of the parties.
It is better if such
perfactory remarks are cut down to the minimum.
(3) Facts not Evidence: While drafting a plaint, a lawyer must distinguish
between facts which are
asserted and which have to be established through evidence whether documentary

or oral, and facts which
are, by themselves, in the nature of evidence. At the initial stage only the former
facts have to be narrated,
and when the state of evidence comes, then the other facts will be represented as a
part of evidence in
order to establish the first set of facts. Thus much before the stage of evidence
comes, the opposite party
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can Marshall himself and be ready to meet all the allegation set forth in the plaint.
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The third fundamental rule of pleadings is that only facts must be stated and not the
evidence there of there
is a tendency among the litigants to mix up the bare facts with the facts which are
in realty the evidence. At
the stage of pleading, the court and the opposite party should be supplied with the
facts and such
contentions on which the claim is founded; the plaintiff must keep the facts in
evidence for a later stage of
evidence.
Now facts are classified under the following two categories:
(a) Facta probanda, the facts which are to be proved. These are the facts on which
a party relies.
(b) Facta probantia, these are the facts which are not to be stated because by their
means facta
probanda are proved. Thus these facts are the evidence as to the existence of
certain facts on
which the party relies for his cause of action or defiance as the case may be.
Facta probanda are not facts in issue, but they are relevant in that at the trial their
proof will establish the
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existence of facts in issue. No doubt in certain cases both the facts in issue and
there facts in evidence are
mixed up and are almost indistinguishable. For ex., A was married to B in

accordance with a particular
custom governing marriage between A and B. in this case the "custom" is a both
fact in issue and a fact in
evidence, because once the custom is proved, then the marriage also, stands
proved. In the pleading it is
sufficient to allege that the marriage was celebrated in accordance with a particular
custom. At the evidence
stage, it will be sufficient to refer to the manual of customary law which records
customs,
The following rules have been enacted under the code of civil procedure and
hereunder we
elaborate them with the help of suitable illustrations:
(1) Malice, Knowledge etc : Order VI Rule 10 clearly says that wherever it is
material to allege malice,
fraudulent intention, knowledge or other condition of the mind of any person, it

shall be sufficient to allege
the same as a fact without setting out the circumstances from which the same is to
be inferred. Thus it is
sufficient to allege that the defendant has cheated the plaintiff to the extent of Rs.
10,000/-. It is not
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necessary, nor would it be in order, to plead how the defendant has cheated the
plaintiff. The "how" part
would be evidentiary and should not be pleaded. In a suit for malicious prosecution
the plaintiff should only
allege that the defendant was actuated by malice in prosecuting him. t.'4e should
not stated the details of
any previous hostility of the defendant's previous conduct to wards the plaintiff.
Notice: Order VI Rule 11 deals with notice. It says that wherever it is material to
allege notice to any person
of any fact, matter or thing, it shall be sufficient to allege such notice as a fact
unless the form or the precise
terms of such notice or the circumstances from which such notice is to be inferred,
are material. In many
cases notice has to be alleged as a material fact. For ex., in a suit to recover trust
property from a person to
whom a trustee has given it in breach of the trust or in a suit where priority for
subsequent transfer is
claimed. In such cases, it is sufficient to allege notice as a fact. It is not necessary

to state the entire from or
precise words of the note, nor any other circumstances from which such a notice
could be inferred
sometimes, however, the form or the precise words of the notice are material under
must be alleged. For
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·ex., where the plaintiff claims to have determined the monthly tenancy by 15 days
notice to quit the
pleading should state "On 14th Jan. dated, the plaintiff served upon the defendant a
written notice calling
upon him to vacate the house and deliver up possession to him on the expiry of
January the 31st In such
cases the precise form and words of the notice are material and must therefore be
clearly stated in the
pleading.
(2) Implied Contract: Order VI Rule 12 states that wherever any contract or any
rotation between any
persons is to be implied from a series of letter or circumstances, it shall be

sufficient to allege such contract
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or relation as a fact, and to refer generally to such letters conversations or

circumstances without setting
them out in detail. And if in such case the person pleading desires to rely in the
alternative upon more
contracts or relations than one as to be implied form such circumstances he may

state the same in the
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alternative. The reason for this rule is that what is really material is the effect of the
letter or conversation etc.
which are only a part of evidence. Take the case of carrier's contract. The moment
the goods are accepted
to be carried to a particular destination and the receipt is issued, there is an implied

contract, and the receipt
for the goods is an evidence of the contract. In this case, it would be sufficient to
plead the implied contract
by making a reference to the receipt issued. The evidence of the receipt and other
matters will come up
later. If any contract is to be inferred from letters, the dates of the letters must be
given.
(3) Presumptions of Law: Order VI Rule 13 states that neither party need in any
pleading allege any
matter of fact which the law presumes in this favour or as to which the burden of
proof lies up on the other
side unless the same has first been specially denied.
(4) Form of Pleading: And now we come the last fundamental rule of pleading.
This rule is that the material
rule is that the material facts should be stated in the pleading in a concise form but
with precision and
certainty the pleading shall be divided into paragraphs, numbered consecutively.

Dates, sums and
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numbers shall be expressed in figure (order VI Rule 2). What this rules means is
that the pleading should be
brief and to the point. At the same time, there should be precision and clarity.
There should be no obscurity
or vagueness or ambiguity of any sort otherwise the very perpose of pleading will
be defeated. Another
point to remember is that no doubt brevity and conciseness are the rule, but brevity
should not be at the cost
of precision or clarity. Thus where brevity and precision cannot be achieved

without clarity, prolixity in
pleading would be justified. If the facts stated in the pleading are all material, then
they all must be alleged
not with standing the prolixity that might cause.
In order to bring precision, conciseness and clarity, a lawyer should have a good
command over the
language and grammatical structure, and should know the exact meaning of the
words. Longer and
complex sentence which is likely to become ambiguous should be avoided.
The following points should be kept in mind while drafting a pleading: -
a) The names of persons and places should be accurately given and correctly spelt;
spellings adopted
at one place should be followed throughout the pleading;

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b) Pronouns like "he" "she" or "that" shout be avoided if possible. Anyway such
pronouns when used
should clearly denote the person or the thing to whom such pronouns refer.
c) The plaintiff and the defendant should be referred not only by their names. It is
better to use the word
"plaintiff' or "defendant".
d) Things should be mentioned by their correct names and the description of such
things should be
adhered to throughout. For ex., if a piece of land has been referred to as a "garden
with trees" it
should not be described later as "a land with trees".
e) Where an action is founded on some statute, the exact language of the statute
should be used. For
ex., where a policy provides that "it shall become void, if the assured died by his
own hand", then in
the pleading it should be stated that "the assured died by his own hand", and not
such language as
"the assured committed suicide" or that "he killed or shot himself'.
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f) In any pleading, the use of "if', "but" and "that" should be, as far as possible,
avoided. Such words
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tend to take away the "certainty" and can cause ambiguity.
g) Necessary particulars of all facts should be given in the pleading. If such

particulars are quite
lengthy, then they can be given in the attached schedule, and a clear reference
made in the
pleading. For example, in an action for special damages, it may be stated in the
body of the pleading
that the details of special damages are given in the attached schedule.
h) Pleading should be divided into paragraphs and such paragraphs should be

numbered
consecutively. The division of the pleading into paragraphs should be so done as to

endure that
each paragraph deals with one fact. At the same time, the entire pleading should
appears a running
and willknit matter, must not look like isolated fact placed together. Inter-relations
ships of
paragraphs must seem to exist.
i) Very often, pleadings are full of repetitions. Such a tendency makes the
pleadings not only lengthy,
but also results in confusion.
Pleading Must be Signed: Order VI Rule 14 makes it obligatory that the pleading
shall be signed by the
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party and his pleader (if any). Provided that where a party pleading is by reason of
absence or for ad cause,
unable to sign the pleading, it may be signed by any person duly athorized by him
to same or to sue or
defend on his behalf.
The main purpose of this rule is to prevent any possible denial by any party that he
did not authorize the
proceedings. Thus even if pleader produces the vakalat-nama duty authorizing him
to fie t or defend the
suit, the signature of the pleader alone would not do. The pleading must bear the
signature or thumb
impression or any other identification mark of the party concerned. The only
exception the party is unable to
sign by reason of absence or any other good cause. Mere absence would sufficient;
"absence" in this
context means such as would not enable the party to be present. Where the party is
unable to sing the
pleading as aforesaid, then a person duly authorised by such a 1st append his
signature to the pleading.
Such authority to sue or defend must be produced before the court
Verification of Pleading: Order VI Rule 15, states every pleading shall be verified
at the foot by the by any
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of the parties pleading or by some other person proved to the satisfaction of the
court to ainted with the facts
of the case. The person verifying shall specify, by reference to the numbered
paragraphs of the pleading
what he verifies of his own knowledge and what he verified upon on received and
believed to be true. The
verification shall be signed by the person making it and te the date on which and
the place at which it was
signed. The aim of verification is only to fix :msibility of the statements made in
the pleading upon same one
before the cant proceeds to adjudicate upon them.
A person making a false verification is liable to be punished under the Indian Penal
Code, as making a false
statement is by itself an offence. Therefore the responsibility of verifications is

very great and its
significance and the consequences thereof must be realized.
After the signature to the pleading some space may be left out and them
verification should begin.
Verification:
I…….. (Name), son of Shri................... (Father's name) verify that the contents of
paragraphs alone to
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…………… Of the above plaint are true within my personal knowledge and that
the contents of paras
……….. (mention the paras by their number in the pleading) are believed to be
correct upon information
received and believed to be true.
Verified at ……….(Place) on this ………….. (Date) day of month/years.
Sd/- (Party)
Any defective verification is not fatal to the suit, nor can the court dismiss any suit
on that ground alone this
applies to both the plaint and the written statement. However, any defect in the
verification can be cured by
way of amendment, and when it is done, the plaint is deemed to have been
presented on the same date as
the original date of the initial pleading. This does not, and should not, minimize the
importance of
verification is defective, then not with standing the fact that the defect can be
removed at ant stage of defect
can cause considerable delay in the adjudication. Therefore it is incumbent upon

the parties to pay due care
to the verification part in the same manner as they would normally to pay the main
pleadings.
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In the code of civil procedure, it is laid down that particulars must be stated with
respect to fraud, breach
willful default or undue influence if pleaded. In other cases, when more particulars
than are exemplified in
the forms on Appendix A of CPC are necessary, they are to be stated, dates when
necessary should always
be given. Pleas should be definitely mentioned so that they can be properly

identified. Particulars of the
property about which a claim is made should be clearly given. In a suit for money,
particular of the account
by which the amount claimed has been arrived at should be given. Fraud should
pleaded with the greatest
possible care and party pleading it must fully realise his responsibility for doing so.
The proper way of
pleading fraud is to set out all the facts and representations alleged to be frivolous
in their full details and
then to state that whether the representations were in oral or in writing. If oral, the
substance of such
representations should be given alleging the data and place when and where they
were made and the and
the person by whom they were made it they were in writing, the document or
documents containing them
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should be clearly identified in the particulars. The changes of fraud must be

substantially proved as alleged
and when one kind of fraud is changed, another kind of fraud cannot, upon failure
of its proof be substituted
for it, nor it is proper for an appellate court to entertain a case of fraud other than
the one specifically alleged
in the pleading.
b) Pleading
CIVIL
PLAINT: Particulars to be contained in plaint provided under order VII, Rule 1.

According to this rule the
plaint shall contain the following particulars.
a) The name of the court in which the suit is brought; for ex.
"in the court of District Judge al N. Delhi" when the suit is to be filed before the
district judge,
The number, of the suit has to be noted in the following line titled "suit No- of
2009".
b) Next to the heading the name, description and place of residence of the plaintiff,
c) The name, description and place of residence of the defendant, so far as they can
be ascertained;
d) Where the plaintiff or the defendant is a minor or a person of unsound mind, a

statement to that
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effect,
e) The facts constituting the cause of action and when it arose,;
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f) The facts showing that the court has jurisdiction;
g) The relief which the plaintiff claims;
h) Where the plaintiff has allowed a set-off or relinquished a portion of his claim,
the amount 50 allowed
or relinquished, and
(i) A statement of the value of the subject matter of the suit for the purpose of
jurisdiction and of courtfees,
so far as the case admits.
Plaint Structure
Name of the court in which the suit is filed indicated at the top of the first page.
Just below the name of the court, a space should left for the number of the suit.
Therefore the names of the parties to the suit with all necessary particulars should
be given. For ex.:
AS s/o CD aged…………yrs.
Resident of.............................................. plaintiff
Versus
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MN, s/o OP aged ……….Yrs.
Resident of …………………. Defendant
If there are more plaintiff or defendant than the names of all plaintiffs/and
defendant should be given in
plaint as plaintiff No. 1/defendant NO.1 and so on.
After the names of the parties the title of the suit should be given for ex. "suit for
specific performance
and damages".
Or
"Suit for Recovery of money"
Or
"Suit for damages for malicious prosecution"
Or
"Petition for Judicial Separation 4/s 9 of the Hindu Marriage Act 1955"
Then follows the body of the suit/plaint all paragraphs should be numbered
consecutively. The body of the
plant consists of two parts (1) substantive part (2) formal part.
(1) Substantive parts of the plaint consist of the portion of the plaint in which a
statement of all facts
constituting the cause of action for the suit has to be stated. Those facts shall
consist of such particulars as
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are necessary to state to obtain "the relied in the suit. The plaintiff seeking relief
for district claims or causes
of action founded upon separate and district grounds shall state all of them
distinctly and separately as far
as possible.
(2) Formal part of the plaint shall state the following essential particulars:
(i) date when the cause of action arose,
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(ii) Statement showing that the court has jurisdiction;
(iii) Statement of the value of the suit for the purpose of jurisdiction and court fees
and it
should be stated that the necessary count fee has been affixed/paid.
(iv) When a suit is filed after the expiry the period of limitation a statement
showing the ground or
grounds on which he has claimed exemption from limitation.
(v) Every relief sought for by the plaintiff should be accurately worded. The
plaintiff can claim
more then one relief, in the suit. He can seek reliefs alternatively. If the plaintiff
can seek
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more than one relief on the same cause of action he must seek all. If he omits to
seek a relief
in the suit his subsequent suit for such relief omitted would be barred under order
2. Rule 2
CPC unless he has obtained leave in the earlier suit to file a fresh suit on the said
relief
omitted.
Signature of the plaintiff along with the signature of the advocate.
At the foot of the pleading, the plaintiff should /or anyone else, who is acquainted
with the facts of the case,
should make verification.
Affidavit should also be enclosed with plaint as provided under CPC order 6 Rule
15 (4).
All documents on which the plaintiff relies for his claim should be enclosed with a
separate Iist of documents
according to order 7 Rule 14 (1) CPC 1908.
Name, Description and place of Residence of parties in plaint and written

statement when the
plaintiff or defendant is:
1) Individual person - AB, son of………….. Resi of…………..
2) Proprietary concern -AB, song …………. Resi. of ………….proprietor of

MIs XYZ and carrying on
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business at ………….
3) Partnership firm - MIs XYZ, a partnership firm registered under the Indian
partnership Act. with its
principal place of business at ………….
4) A company - MIs XYZ, Pvt. Ltd. A company incorporated under the companies
Act having its
registered officiate………….
5) Company in Liquidation - MIs XYZ Ltd. In liquidation through liquidator Mr.

ABC having office at
………….
6) Statutory Corporation - The life insurance corporation of India established and

constituted under
the life Insurance Act, having its registered office at ………….
7) Municipality – Municipal corporation of Delhi through its chairman, town hall,

delhi.
8) Minor - AB, son of …………., a minor through his father and natural guardian
CD son of ………….
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Resi. of ………….
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9) Person, of unsound mind: AB son of …………. resi of a person of unsound

mind through his
guardian next friend CD son of …………. Resident of ………….
10) Government of India: The Union of India, through secy. Ministry of

education, New Delhi.
11) Any Government: State of Bihar through is Secretary, Patna.
12) Cooperative Society: MIs. XYZ Ltd. A cooperative Society registered under
the Delhi cooperative
societies Act, having its office at ………….
(ii) Written Statement (Order VII) C.P.C.
A written statement is required to be filed by the defendant in answer to the claim

made by the plaintiff in his
plaintiff, which is delivered to the defendant along with the summons to attend at
the first hearing of the suit.
The number of the suit is noted in the summons.
Before drafting a written statement, one should verify the provisions set out for
drafting a plaint under order
VI of CPC. Examine whether the suit is barred under order II Rule 2 CPC,
carefully study the material facts
and the documents referred to in the plaint, check whether the documents are duly
stamped, see that the
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material facts are specifically denied. Study order VIII, CPC, make sure set-off or
a counter-claim to be
pleaded or not. Verify also whether the claim is barred under principles of res
judicata.
In the written statement, the defendant should mention at the top the name of the
judge or court, trying the
suit. Next, the name of the parties first named are mentioned, as it is not necessary
to mention the names,
description and place of residence of all the parties in the title of the written
statement.
The answering defendant thereupon replies to each Para of the plaint, unless there
is some preliminary
objection, the consideration of which is necessary in the first instance before the
suit is tried on the merits of
the case. Objections relating to the maintainability of the suit, locus standi of the
plaintiff to file the suit, the
non-joinder or mis-joinder of parties as to the jurisdiction of the court or as to

limitation may: be included in
the preliminary objection. Similarly, objections relating to court fees paid or

valuation of the suit for process
of jurisdiction are taken up in the first instance,
The defendant may have additional facts to be stated which do not find and
appropriate place in reply to the
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assertions made by the plaintiff in his plaint such additional facts or pleas maybe
added in the written
statement as additional pleas.
The filing of a written statement by any defendant, whether it is a Government or

not a Government,
whether it is an ordinary person or a statutory body a corporation or any body else,

is covered by the same
provision, namely, order VIII, Rule 1.there is no other provision dealing with the
filing of a written statement.
It shall not be sufficient for a defendant in his written statement to deny generally
the grounds alleged by the
plaintiff, but the defendant must deal specifically with each allegation of fact of
which he does not admit the
truth except damages. Every allegation of fact in this plaint, if not denied
specifically of by' necessary
implication, or stated to be not admitted in the pleading of the defendant, shall be

taken to be admitted.
The pleading 'not know' is not tantamount to the pleading 'not admitted'. So also
the plea of no knowledge'
of fact pleaded in the plaint is not tantamount to a 'denial' of the existence of those
facts and does not even
amount to an implied denial according to order VIII, Rule 3 or Rule 5.

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WRITTEN STATEMENTS
Effect of non-filing of the Written Statement: If a defendant did not file his
written statement it could not
be said that he admitted all the facts pleaded by the plaintiff. The position in law,
in cases where the
defendant has not filed written statement is that even without filing a written
statement; the defendant can
take part in the hearing of the suit. He may cross-examine the plaintiff's witness to
demolish their version in
examination in chief, without written statement. However, he cannot be permitted

to crossexamine the
witnesses on questions of fact with he himself has not pleaded nor can he be
allowed to adduce evidence
on question of facts which have not been pleaded by him by filing any written
statement (Chunni Lal
Chawdhary V. Bank of Baroda, 1981 Sri L. J. 411)
Rules of proceedings are intended to be a hand-maid to the administration of

justice and a party cannot be
refused just relief merely because of some mistake negligence, inadvertence of

even in fraction of the rules
of procedure. The court always gives leave to amend the pleading of a party, unless
it is satisfied that the
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party supplying was acting malafied or that by his blunder, he had caused injury to
his opponent which may
not be compensated for by an order of costs. A defendant can be allowed to amend

the written statement to
enable him to raise an additional ground of defence if the additional grounds not
inconsistent with original
case setup by him in the written statement and arises out of the case put forward by
the plaintiff and does
not change the nature of defendant's own sand. If the amendment is likely to
resolve the real controversy
between the parties it should be allowed and it is not open for court to decide at
that stage whether person
seeking amendment will ultimately succeed in the plea or not.
Absence of Plea in Written Statement: Where a claim has never been made in
the defence, no amount of
evidence can be looked into upon a plea which was never put forward.
In the case of Gita Rani Paul V, Dibyendra kumar (AIR 1991 SC 393) The
Supreme Court reversed the
decision of the Calcutta High court and held that the High Court fell into an error
in accepting the appeal on
an issue which was neither raised nor ergued before the court below.
(III) Interlocutory applications (IA)

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Interlocutory applications or interim application are filed during the pendency or

course of litigation. Such
applications should be drafted with the same care as pleadings. Like pleading the
lA's should be both
precise as well as brief and devoid of irrelevant matters.
Drafting of Interlocutory Application: The grounds on which application is moved

should to the extent
possible be stated in the words of the law under which the application is fitted. For
ex., in an application for
setting aside an expert decree against the defendant, the defendant should say that
"the summons was not
duly served" or that "the defendant was prevented by any sufficient cause from
appearing when the suit
was called on for the hearing". It is not advisable to employ a language different
from the law under which
the application is made.
Like a plaint every application should have a heading and a title. The name of the
Court should be given at
the top and thereafter should follow the name of the applicant and the opposite
party. When the . application
is moved in connection with a suit or proceeding, the number and the cause title of
that suit or proceeding
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alone should be given after the name of the court.
The body of the application should be either in the form of petition:
"The humble application of the plaintiff in the above mentioned suit, respectfully
submits as follows' or it
may be written like plaint. "Application for restituting under section 144, CPC by
the defendant in the above
mentioned suit
The applicant humbly begs to submit as follows:
It is not absolutely necessary that the law under which the application is filed
should be given.
Like pleadings facts in the application should be stated in brief and concise
language. The application
should be divided into paragraphs and one paragraph as far as possible should
narrate one allegation
except where two or more allegations are so connected with each other that it is
better to give them in one
paragraph. With some application affidavits are filed and if in such cases the facts
are too long things need
not be narrated in the application. They should only be narrated in the affidavit and
in such cases the
application should be worded in some such form:

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"For the reasons above in the annexed affidavit, the applicant prays that etc".
The application should end with a prayer. The payer should be in the following
form:
"The applicant! Plaintiff! Defendant, therefore prays": etc.
After prayer, should follow the signature of the applicant where law requires the
verification, the application
should also be verified.
Examples of Interlocutory Applications Provided under CPC
a) Application under order 6 Rule 17 CPC for amendment,
b) Application under section 95 CPC for compensation for arrest or attachment

before judgment on
insufficient grounds.
c) Application under sec. 144 for restitution.
d) Application under sec. 151.
e) Application under sec. 152 for amendment of judgments, decrees or orders,
f) Application under order IX Rule4 for setting aside an order dismissing a suit for
default of the
parties,
g) Application under order IX Rule 9 CPC for setting aside and order dismissing a
suit for plaintiff's
default,
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h) Application under order IX Rule I, for leave to deliver interrogatories,
i) Objections under sec. 47 or sec.60.
j) Objections under order XXI Rule 58, or order XXI Rule 89, 90, 91, or order
XXI, Rule 98,
k) Substitution applications under order XXII CPC.
l) Application under order XXVIII Rule 1 or Rule 5,
m) Applications under order XXIX. For an interim injunctions, application under

order XL, for
appointment of receiver,
n) Application under order XLVII for review.
(iv) ORIGINAL PETITION
Petitions. or suits are interchangeable terms. However, in practice, the words

'petitions' and 'suits' are
generally used to mean formal applications for seeking legal remedy. Suit of a civil
nature is ordinarily tried
in civil court. Every person has a right to bring a suit of a civil nature and civil
court has jurisdiction to try an
the suits 01a civil nature. Due to increasing litigation and delays in civil suits,
parliament and state
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legislative created special courts and Tribunals with special enactments. The
reason behind this exercise is
for speedy disposal of cases of various types. For ex. Cases of ejectment in respect
of urban buildings
between the land lord and tenant are now dealt with by special courts created under
various state
legislations. Railway accidents claims are decided by railway claim Tribunals,

claims by Industrial woken
for payment of wages are entrusted to prescribed authorities. So is the case with the
workman's
compensation claims. In some states and in center also service tribunal have been
created for adjudication
of cases of public servants in disputes arising out of their employment, including

dismissal, terminator of
service, etc. At many places family courts have been established to deal with
matrimonial disputes.
In such cases which are dealt with by special courts under special enactments the
party aggrieved
expected to approach such special courts or tribunal and the jurisdiction of the civil
courts under sec. 9 CPC
is barred. These tribunals are given various powers of a civil court while trying a
suit under CPC through
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they are not regular civil courts. Very often the presiding officer of these tribunals
courts are also presiding
officer, of regular civil courts for ex. In family courts and Motor Vehicle Tribunal.
The provisions of the CPC do not as such necessarily apply to proceedings before
these tribunals although
proceedings are civil in nature. To what extent provisions of the CPC are applied to
a particular civil
proceeding depends on the statute under which the tribunal is created.
The fundamental rule of pleadings mentioned in the part I of this study material are
broadly applicable even
to civil proceedings, though because of the relatively summary nature of those

proceedings the same rules
may not apply in their full rigors. In may case the proceedings are commenced not
through -Plaint" but
through "petition".
Even though the fundamental rule should apply to a petition also, yet it is
necessary for the pleader to study
the statutory provisions carefully so that a blind adherence to the provisions of

CPC may not land him in
difficultly. For ex., Order 30, Rule I, permits a partnership firm to sue or to be sued
in the name of the name of
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the firm. If the CPC has been applied as a whole to such civil proceedings, then of
course, order 30 Rule 1
would also apply, but if the statute is silent on this point, then it would be
necessary for all the partners the
firm to sue or to be sued jointly in their individual names, instead of in the name of
the firm. Like wise in
respect of a claim petition before a service tribunal it may be necessary to implied

the appointing authority of
the public servant. In a suit before the civil court it is the Union of India or the state
concerned which is
required to be sued vide Art, 300 of the constitution of India. The appointing
authority may be an authority
subordinate to the Government but in a civil court it is not necessary or proper to

impaled such and authority
as defendant. These points of difference should be kept in mind while drafting

pleading in such civil
proceedings.
Special Enactments
(1) Hindu Marriage Act. 1955
(2) Administrative Tribunals Act. 1988
(3) Consumer Projection Act. 1986

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(4) Arbitration and Conciliation Act. 1996
(5) Motor Vehicle Act. 1988
(6) Indian Succession Act.
(7) Guardians and Wards Act, 1890
(8) Companies Act. 1956
Form of petitions under special Enactments
SAMPLE FORM
In the Central/Sate Administrative Tribunal…
Between
AB Applicant …………….
And
State of ……………….represented by the concerned officer (depending on

whether the applicant is a
Central/ Govt. or a State Govt. servant). Respondant
Details of Application
1. Particulars of the applicant:
1) Name of the applicant.
2) Father's name of the applicant.
3) Designation of service and particulars of applicant's office.

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4) Office address of the applicant.
5) Address for service of all notices and processes.
2. Particulars of the Respondent :
(i) Designation of the Officer who passed the order challenged.
(ii) Office address of the respondent.
(iii) Address for service of all processes and notice
3. Particulars of the Order Against Which Application is Made:
(i) Disclose all references.
(ii) Date of the order.
(iii) Designation of the Officer who made the order.
(iv) Subject in brief (dismissal).
4. Jurisdiction of the Tribunal: the applicant declares that subject-matter of the

order against which he seeks relief prayed for is within the jurisdiction of the
Tribunal.
5. Limitation: The State that the application is filed within time prescribed under
Section 21 of the
Administrative Tribunals Act, 1985. It is beyond period of limitation set out

grounds to condone the
delay.
6. Facts of the Case: (set out in brief).

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7. Relief Sought: (set out the same)
8. Interim Order: (If necessary, plead for the same)
9. Details of Remedies Exhausted: This requires careful study of service rules

(central or State)
and State that the venues provided for in the rules has been approached and
exhausted.
10. Matter not Pending with any Other Court: The applicant further declares
that the subject
matter of this application is not pending in any court of law or any other authority
or any other bench
of the Tribunal.
11. Particulars of Bank Draft: A Bank Draft No ……………. or a sum of Rs.

501- in respect of the
application fee drawn on State Bank of India is herewith enclosed.
12. Details of India: An index in duplicate containing the details of the documents
to be relied on is
enclosed as A-1.
13. List of Enclosures: A list of enclosures is annexed as A2.
In the Railway Claims Tribunal- Madras Bench
Application No. O.C. No . of 19…………….
... .. . ..... Applicant.

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Versus
Union of India, owning Southern Railway,
Represented by is General Manager …………… Respondent.
PART II
SL. No. Description of Documents Attached Page No.
1. Application dated 1 & 4
2. Open Delivery I partial delivery Certificate dated 5
3. Claim Under Section 106 of Railways Act dated 6
4. Repudiation letter dated 7
5. Pattial dated 8
Date……………..
Place: Madras Applicant
Date of filing …………….
Registration No ………….
_____________
Before the District Consumer Disputes Redressed
Forum, Madras
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O.P. No……………………………… of 1994
Mrs. Rhino Banu (alias)
Rahan Banu Complainant.
Versus
N. Pankajavali Opposite-party.
Petition filed under Section 12 & 13 of the
Consumer Protection Act
The Complainant above named states as follow:
1. The Complainant is the wife Mohammed Madhinulla Sheriff, Muslim, aged

about. years, residing at
Plot No. 65 (Door No.4) Thanikachala Nagar, madras-600 110.
The address for service of all notices and processes on the complainant is hat of her
Counsel.
2. The Opposite party is the wife of Late RS. Vishwanathan, Hindu, aged abut
………….years,
residing at No. 10, Eswaran Koil Street, Erukkancherry, madras-600 051.
3. The Complainant states that at Madras on 28.1.1993, she entered into and
agreement of Sale with
the Opposite Party I and by which, the Opposite Party agreed to sell a piece of
vacant land bearing
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Plot No. 164 Thankachala Nagar, Madras-600 100 in Lay-out plan L.A. 26/1970
comprised in S No.
11801 1 and 1180/2 situate at No. 34, Madhavarem Village, Saidapet Taluk,
Chingleput District
measuring about 2400 sq. ft. with a building thereon and more fully described in
the Schedule
hereunder, for a sum of Rs. 3,40,0001-. The Complainant states that at the time of
execution of the
aforesaid Sale Agreement, the building was incomplete and unfinished. It was,
therefore, agreed
between the parties hereto that opposite party shall complete the parties hereto that
the Opposite
Party Shall complete the incomplete building. In fact, under Clause IV of the
Agreement, the items of
the work to be completed before the registration of the Sale Deed, are:
i. Front Compound Wall - 40 feet.
ii. Other three sides fencing of the compound wall with R. C.C. Pillars 2' 5"
chaining mesh.
iii. O/H water Tank and Plumbing work with PVC pipes and fittings, and
iv. Well platform.

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It was further agreed that the sale be completed within 3 month after the
completion of the aforesaid four
works.
4. The Complainant states that the property to be conveyed was mortgaged by the
opposite
party with MIS Perambur Co- operative Bulding Society under a registered
Mortgaged Deed
dated 5.5.1992 (Document No. 2564/1992). Since there was pressure from the said
society for
payment of the mortgaged amount, the opposite party requested and insisted on the
complainant to complete the registration of the Sale Deed even before the
completion of the
aforesaid work. The Complainant states that due to the pressure given by the
opposite party,
she had to register the Sale Deed for the value of the land and the incomplete
building that was
in existence in the date of registration for a s um of Rs. 1,80,0001-. In addition, as

per the terms
of the sale agreement dated 28.01.1993, the complainant paid a further sum of Rs.
1,60,0001-
to the Opposite party for the completion of incomplete and unfinished items of
work referred to
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supra.
5. The complainant states that the Opposite party fails to keep up her promise and
did not take
any steps to commence and complete the work of the unfinished items of work,
despite receipt
of the entire amounted sale consideration. The complainant issued a lawyer's notice
dated18.06.1994, calling upon the opposite Party either to complete the unfinished
items of
work as agreed or to return the sum of Rs. 1,60,0001- paid by her for such work.
The aid notice
was acknowledged by the Opposite party on 22.06.1994 but did not care to send
any reply.
Hence, the complainant has filed present petition.
6. The complainant, therefore, states that a Consumer Disputes has arisen on

account of the
negligence and deficiency in service of the Opposite party, viz. the failure to
complete the
incomplete and unfinished items of work referred to supra even after receiving Rs.
1,60,0001-
for that purpose and also the failure to return the said sum of Rs. 1,60,0001-. The
complainant
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states that on account of the negligence and deficiency in service of the opposite
party, she is
not in a position to put the property to any profitable use and thereby she suffered
heavy loss
besides suffering mental agony and strain.
7. The complainant, therefore, prays that this forum may be pleased to:
a) Direct the Opposite Party to return the sum of Rs. 1,60,0001- paid by the
complainant and a
liquidated damages of Rs. 20,0001- in all totaling Rs. 1 ,80,000/-.
b) Direct the Opposite party to pay the complementation of a sum of Rs. 75,0001-
for the
mental agony and strain suffered by the complainant;
c) To punish the Opposite party in accordance with the provisions of the Act; and
d) To pass such further of other orders as this Hon'ble Forum may deem fit and
proper in the
circumstances of the case and thus render justice.
Dated at madras this the …………….day of July, 1994.
Counsel for complaint complainant.
Verification
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I, Mrs, Ryhana Banu alias Rahan Banu, the complainant above named, do hereby
verity that what is stated
above is true to my knowledge and belief.
Dated at Madras this the ………….day of July, 1994.
Complainant.
Before the motor Accidents Claims tribunal Madras
O.P. No. …………………………………….. of 19
Petitioners
Versus
Respondents.
Petition under section 166 of MV Actand Rule 30f M.A.C.T. Rules.
Necessary particulars in respect of i'njuredl deceased vehicle given below:
1) Name and Father's name of the person injured deceased:
2) Full address of the person injured 1 deceased:
3) Age of the person injured Ideceases:
4) Occupation of the person injured 1 deceased:
5) Name and address of the employer of any of the injured 1 deceased:
6) Monthly income of the person injured 1 deceased:
7) Does the person in respect of whom compensation is claimed pay income tax? If
so state the
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amount of income tax (to be supported y documentary evidence).
8) Place, date and time of the accident:
9) Name and address of the police station in whose jurisdiction the accident took
place or was
registered:
10) Whether the person in respect of whom compensations claimed traveling by

the vehicle involved in
the accident, if so, give names of starting of journey and destination:
11) Nature of injuries sustained:
(a). Details of the damage caused to the property on account of the accident:
12) Name and address of the Medical Officer practitioner if any who attended on
the injured/ deceased:
13) Period of treatmen5t and expenditure if any, incurred thereon:
(a). Disability for work if any caused:
14) Registration number and type of he vehicle:
15) Name and address of the owner of the vehicle:
16) Name and address of the insurer:
(a). Name and address of the driver in-charge of the vehicle at the time of accident:
17) Has many claim been lodged with the owner insurer, if so, with what result:
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18) Name and address of the applicant:
19) Nature of relationship with deceased:
20) Title to the property of the decease:
21) Amount of compensation claimed:
(a). Particulars of the loss and expenses:
PART I
a. Loss earning from …………… to ……………
b. Partial loss of earning from ……………to ……………
c. At the net rate of Rs.
d. Transport to hospital …………… a day week.
e. Extra nourishment:
f. Damage to clothing and articles:
g. Others:
PART II
h. Compensation for pain and suffering:
i. Compensation for continuing or permanent disability, if any:
j. Compensation for the loss of earning power: ……………Total Rs. ……………

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22) Where the application is not made within six months of the occurrence of the
accident the cause
thereof;
a. (i) Where the injured / deceased has been involved in any other Road accident
earlier (in case he
was, state details).
(ii) Whether the injured / deceased has been preferred a claim from damage if any,
on vehicle and if
so how?
(iii) Whether the injured! deceased was related to or has known the owner of he
vehicle and if so
how?
23) Any other information that may be necessary or helpful in the disposal of this
Claim here furnish a
brief account of how the accident occurred and state how the applicant so entitled
to claim
compensation and how the Respondents are liable to any compensation claimed.
(a). To state how the respondents are liable to pay compensation to the petitioner.
Verification
I do hereby solemnly declare that the facts and particulars stated above are true and
correct to the best of
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my! knowledge and that I/We have not claimed or obtained any compensation on
under the Workmen's
Compensation Act of 1923, so far as this case is examined. Petition under Article
226 of the Constitution of India for Issue of a Writ of Prohibition The
petitioner
above named states as under :
11. That he was appointed as Sub-Inspector of Police in the State ………….. of

…………..
on …………..
12. That he served the State in various capacities, to wit as ………….. in

…………..
at………….. and ………….. as ………….. in ………….. at. …………..
13. That while he was stationed at………….. and serving as ………….. he was
served with a
charge- sheet dated a copy whereof is filed herewith.
14. That enquiry into the said charges was made by respondent No.3 from
…………..
to………….. , who submitted a report dated …………..to respondent No. 2

finding the charges
mentioned in charge-sheet above-mentioned to be proved:
15. that according to Rule ………….. of ………….. the charges aforementioned

could not be
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enquired into except by an officer of the rank of superintendent of police of

………….. Division or
with the approval of …………..respondent No. 2 of another Division in the State

of …………..
16. That on ………….. the petitioner received notice form respondent No.2 to
show cause why
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Strictly for Internal Circulation - KCL
he should not be dismissed from service.
17. That the aforesaid enquiry was illegal and ultra vires. Respondent NO.2 had no
jurisdiction
to take into consideration the said enquiry or pass any order on the basis thereof.
The so-called
enquiry was held by person not duly authorized to do so.
18. The holding of a departmental enquiry by a Superintendent of Police is a

condition
precedent, a fact which must exist before respondent No.2 can assume jurisdiction
or authority
for the purpose of passing the final order of dismissal under Rule ………….. of
against the
petitioner.
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Here is a case of acting without or in excess of jurisdiction.
19. That in any view of matter here is a case in which there is a substantial error
apparent on the
fact of the record and an error of jurisdiction for the purposes of 'certiorani" or
'prohibition. '
20. It is, therefore, prayed that a writ be issued prohibiting the respondent form
proceeding to
take further action against the petitioner by way of dismissal of the petitioner from
the police
force or doing any other act to the prejudice of the petitioner based on the
purported enquiry and
the findings thereon referred to in the petition.
N. B.: An Affidavit in support of the petition is also herewith.
A B, petitioner
Advocate
Dated ………….. For the petitioner
In the High Court of Judicature at. .
in fe, Article 226 of the Constitution of India
A B (add description and resident)
Versus
(1) C 0 (add description and residence)

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(2) E F, Chairman of the Municipal Board of.. at. .
(3) State of ………….., through Secretary, Local Self-Government.. .
Petition for a writ-of quo warranto and other direction or order
The petitioner above named states as under : .
4) That the Respondent No. 1 was nominated on ………….. by the Respondent

No. 2 under
Section ………….. of………….... Municipalities Act on the occurring of a

vacancy in the
Municipal Board …………..of…………..in respect of a seat to which a member

had to be
nominated.
5) That the respondent No. 1 was a candidate at the previous (19 ) general election
of this
Municipal Board and had failed in getting elected.
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6) That under the proviso to Section ………….. of………….. Multiple Actr.19

………….. a
person who had stood as a candidate at the previous general election and had not
been elected
could not be nominated to the Board.

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7) That the respondent No. 1 was in contravention of the provisos of law and his
membership
of the Board is, therefore, invalid.
8) That the petitioner is a resident within the Municipality of ………….. and is a

voter at No
………….. .in ………….. Ward No …………..of the said Municipality.
9) In the circumstances, it is prayed that a writ of quo warrant to be issued

declaring that the
nomination of respondent No. 1 is not entitled to hold the office of a member

thereof and
directing him not to exercise or use the rights, liberties and privileges in respect of
the office of
the member of the Municipal Board of …………..
N. B.: An Affidavit in support of the petition is filed herewith.
Dated A B, Petitioner
Advocate
For the petitioner
CRIMINAL
(I) COMPLAINT: Cases relating to crimes are triable by the Criminal courts of
which the fir court is that of
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judicial or Metropolitan Magistrate Ordinary and simple crimes are tribal by

Metropolita Magistrates, while
the serious ones are initially investigated and then sent up to the sessions courts
trial. The schedule
appended to the code of Criminal procedure gives and provides a list of crimes and
offences tribal by
Metropolitan Magistrate and by the count of sessions.
What the students have to remember is that in cases of a serious nature where the
police take cognizance
of the case, it is the police which takes over the task of prosecuting the accused and
leads evidence to
establish the guilt of such. persons.
In the cases of defamation, malicious prosecution complaints are generally taken

up by the private
individuals on their own expenses;
Generally the formate used in all such complaints is similar because the complaint,
whatever it nature, has
to be filed before the Metropolitan Magistrate of the Area/District.
Normally a criminal case begins with the filling of an F.I.R. with the police station
of the area and if there is a
serious case, fatal! serious injury/ rape etc. the victim (s) have to undergo medical
examination in order to
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establish the nature of the injury and the real cause of the injury (death) etc.
thereafter the prosecution
completes the investigation and puts the accused on trial. Students are advised to
read the CR. P. C. of the
author for further commentary.
There are certain private complaints which may be taken direct to the Metropolitan
Magistrate with or
without the participation of the police. However the complainant must have
reported the nature and the
facts of the case to the local police and must have obtained a receipt thereof which
must from a part of the
complaint.
Hints on Drafting a Complaint : while drafting a complaint everyone should,

remember the "Ten
commandants" :-
1. Be brief,
2. Be positive,
3. Be precise,
4. Be relevant,
5. Plead fact and not evidence,
6. Plead fact not low,

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7. Do not plead what the low or the court takes for granted or what the other side
has got to prove.
8. Give particulars of fraud etc.
9. Do not change your terminology and do not use fine language or words that you
do not understand.
10. Do not use the passive voice participle, phrases, pronouns or any sort of
ambiguity.
Form of Complaint: No specia1 form as such is provided by law. The minimum

requirements of a
complaint are:
i. It must be addressed to a Magistrate;
ii. Stating facts which fulfill the ingredients to the offence complained of,
iii. And praying for action against the offender for punishment.
Apart from the other legal requirement, in practice the complaints are drafted in the
following manner, and it
should state;
a. Name of the court in which the complaint is to be lodged;
b. The Criminal case No. of the court
c. The name and description including age, occupation and place of residence of
the complainant.
d. Then "versus" or "vs".

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e. The name or names of the accused with his address.
f. The heading of· the complaint showing the section or section constituting the
offences and
prescribing punishment therefore.
g. The body or the substance of complaint. It is usually commenced in anyone of

the following
manners:
i. The complaint begs to state as follows:
ii. May it please the complainant above named begs to state on oath or solemn
affirmation as
follows:
iii. The complainant above named;
iv. The prayer,
v. The place and date;
vi. Lastly the signature or the thumb mark of the complainant.
vii. The list of witnesses to be examined.
While giving the substance of the offence in the main body of the complainant,
care should be taken to see
that all the ingredients of the offences are complied with and incorporated without
any exaggeration. It is
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advisable to avoid, as far as practicable, the details and circumstances of the

commission of offence which
consequently widen the scope of the cross-examination.
To entitle a magistrate to take cognizance there should not, only a complaint,

which means allegation of
commission of offence, but it must contain facts which constitute the offence. The
basic facts and materials
should be pleaded on which the allegation is founded are required to be stated.

Factual details or evidential
details need not be however incorporated in the complaint, but it must contain the
path and substance of
primary facts on the basic if which the allegation of the commission of on offence
is being made.
Taking cognizance of an offence is the first and foremost step towards trial. The
code of Criminal procedure
has not defined the expression "cognizance of an offence" or "taking cognizance of

an offence". Literally
meaning of cognizance is knowledge or notice and taking cognizance of offence

means taking notice, or
becoming aware of the alleged commission of an offence. The judicial officer wit
have to take cognizance of
the offence before he could proceed to conduct a trial. Taking cognizance does not
involve any formal
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action or indeed action of any kind but occurs as seen as a magistrate as such
applies his mind to the
suspected commission of an offence for the purpose of proceeding to take

.IbIBtIIl8Rtsteps (under sec.200,
or section 202, 204) towards inquiry or trial. It includes intention of illi.1'I9 a

judicial proceeding against an
offender in respect of an offence or taking steps to see whether there is a basis for
initiating Judicial
proceeding.
When a magistrate applies his mind not for the purpose of proceeding as
mentioned above, but for taking
action of some other kind, that is ordering investigation under sec. 156 (3), or
issuing a search warrant for
the purpose of investigation, he cannot be said to have taken cognizance of the

offence.
A magistrate can take cognizance of an offence only within the time limits
prescribed by law for this purpose
(sec. 467 - 473) the accused is entitled to raise on objection to the maintainability
of the complaint either on
the ground of limitation or of jurisdiction or any other analogous ground. It is

desirable that such preliminary
points should be raised and decided at the beginning so that the time of the court
could be saved and the
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accused person would also be saved from trouble and unnecessary expend time.
There may be cases in which preliminary points should not be allowed to be raised.
But there are cases
where the objection goes to the very root of the maintainability of the complaint
and in such cases it is not
only permissible but desirable that such objections should be raised at the earliest
opportunity and decided
so that unnecessary waste of time of the court and of the litigant public might be
avoided. An accused
person has a right to raise a preliminary objection to the maintainability of the

complaint and to have it
decided so that he may not be put to the necessity of under going a trial in case he
succeeds on the
preliminary objection.
The complaint is in the nature of an indictment. Therefore averments in a

complaint must be established
and properly proved by evidence. Before anyone can be convicted on charges

formulated in a complaint, all
those charge must be fully and properly proved in accordance with procedure and
the law of evidence
applicable to Criminal charges.
(II) CRIMINAL MISCELLANEOUS PETITION

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In offences state becomes the party and the accused has to put up his defence. It is
the duty of the
prosecution on behalf of the state to prove the guilt of an accused. In such a

situation the aggrieved party is
not required to institute any petition. It is the responsibility of the state to launch
prosecution against the
criminal who has committed the offences of Criminal nature.
The constitution of India empowers the Supreme Court and the High Courts under
Art. 32 and 226 to
provide remedy to the petition by way of issuing writs the jurisdiction of the High
Court under 226 is in nature
of ordinary original jurisdiction. It empowers every High Court, within its

territorial jurisdiction to issue
directions, orders or writs including writs in nature of habeas corpus etc. for the
enforcement of any of the
fundamental rights as well as "for any other purpose".
By virtue of Art.227 every High Court has superintendence on all courts and
tribunals through out the
territories in relation to which it exercises jurisdiction except those constituted

under any law relating to
armed forces.
The High Court May

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a) Call for returns from such courts;
b) Make and issue general rules and prescribe forms for regulating the practice and
proceedings of
such courts, and
c) Prescribe form in which books, entries and accounts shall be kept by the officers
of any such courts.
It must be remembered that in exercise of its jurisdiction under 227 High Court
does not act as a court of
appeal. It cannot, therefore, review or reweigh the evidence upon decision. The
supervisory jurisdiction
conferred under Art.227 is limited to seeing that the inferior court or tribunal
functions within limits of its
authority and not to correct any error of law. (Mohd.Yunus V. Mohd. Mustquim
AIR 1984 SC 38, 40)
Under the code of Criminal procedure High Court has also empowered its inherent
jurisdiction, under sec.
482 Under this sec. the High Court may be exercised its inherent powers in a
proper case either to prevent
the abuse of process of any court or to secure the ends of justice. Inherent power of
the High Court should
be exercised only in the exceptional cases. (Amar Chand V. Shanti Bose, AIR
1973 SC 799)
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In the following cases the inherent jurisdiction of the High Court should be
exercised to quash the
proceedings. (R.P. Kapur V. state of Punjab AIR 1960 SC 866)
i. Where there is a legal bar against the institution or continuance of the

proceedings;
ii. Where the allegations in the first information or complaint do not constitute the
offence alleged; and
iii. Where either there is no 'legal evidence adduced in support of the charge or the
evidence adduced
in support of the charge or the evidence clearly or manifestly failed prove the
charge.
No limitation period has been prescribed for making an application under sec. 482
Cr. P.C. However the
application is to be filed within a reasonable time. The High Court may, to prevent
the abuse of the process
of court and secure the ends of justice, in a long drawn out proceedings where no
prima-facie case is made
out against the accused, internee and quash the proceedings, for more details for
this provision or inherent
powers of the High Court student should consult sec. 482 Cr. P.C. from their text
book and bare Act. of Cr.
P.C.
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MODEL FORMS OF CRIMINAL MISCELLANEOUS PETITION
In the High Court of ……………….
CR. MISC. petitioner/ No. ……………….
AB (add description) ……………….Respondent! complainant
Complaint no ……………….
Police station ……………….
To the Hon'ble chief justice and his companion judge of the High Court of
………………..
PRAYER
It is therefore most respectfully preyed that a notice may be issued against the
respondent.
Date: sd/-
Place: Advocate of the petitioner
Other petitions under sec. 107, 109,125 and 133 Cr P. C. maybe filed in Criminal
court.
(iii) BAIL APPLICATION
The concept of bail has a long history and deep roots in English and American law.
In medieval England, the
custom grew out of the need to free untried prisoners form disease ridden jails
while they were waiting for
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the delayed trials conducted by traveling justices, prisoners were bailed, or

delivered, to reputable third
parties of their own choosing who accepted responsibility for assuring their
appearance at trial. If the
accused did not appear, his' bailor would stand trial in his place. It became the
practice for property owners,
who accepted responsibility for assuring persons to forfeit money when their
charges failed to appear for
trial. In the event of non-appearance the bond is for feited.
'Bail' in English common law is the freeing or setting at liberty of one arrested or
imprisoned or imprisoned
upon any action, either civil or Criminal, on surety taken for his appearance on
certain day and a place
named.
Under the Indian law the word 'bail ' has not been defined in the code Criminal
procedure 1973 have defined
the expression 'bailable offence' and non- bailable offence respectively in section
4( 1) (b) and sec; 2 (a).
The word 'bail' means the security for a prisoner's appearance for trial. The effect
of granting bail is
accordingly not to set the prisoner free from jailor custody, but to release him form
the custody of law and to
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entrust him to the custody of his sureties who are bound to produce him to appear
at his trial at a specified
time and place.
Under the provisions of Cr P.C., bails may be studied under three heads:
(1) Bails in bailable offences.
(2) Bails in non-offences.
(3) Anticipatory Bail.
1. Bails in Bailable offences - where an arrested person is accused of a bailable

offence he shall be
released on bail at any time while n custody, if he is prepared to give bail. But the
officer in charge of a
police station detaining the accused without a warrant may, instead of taking bail
form such person,
discharge him on executing a bond without sureties for his appearance. In every
bailable offence bail is
granted as a matter of favour. No discretion has been granted to courts in such

cases. The granting of
bail is imperative under sec. 436 of code of Criminal Procedure.
Where a person fails to comply with the conditions of the bail bond regarding time
and place of
attendance, the court may refuse to release him on bail, when on a subsequent
accession in the same
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the appears before the court or is brought in custody and any such refusal shall be
without prejudice to
the powers of the court to call upon any person bond by such bond to pay the
penalty there of under sec.
446 in which the procedure when bond his been for feinted is given.
2. Bails in Non-Bailable Offences : All offences which do not fall under the
category of bailable
offences are non-bailable offences.
A person accused of a non-bailable offence maybe released on bail, subject to

certain restrictions. Sec.
437, Cr P.C., lays down that a person arrested for a non-bailable offence shall not
be so relapsed if there
appears reasonable grandees for believing that he has been guilty of an offence
punishable with death
or imprisonment for life. But there is also an exemption in the section, in the case
of a person under the
age. Of sixteen years or any woman or any sick or infirm person identification by
witnesses is no ground
for refusing bail.
3. Anticipatory Bails: Sec. 438 Cr. P.C. 1973 says the issuance of a direction that
in the event of arrest
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of the application he shall be released on bail. Sec. 438 confers power on the High
Court as also the
Court of Session to grant bail to any person apprehending arrest on an accusation

of having committed
a non-billable offence in anticipation of his arrest, which is called anticipatory bail.
The object of this section is that if a person has already obtained an order from the
session judge or the
High Court, he would be released immediately without having to undergo the

rigours of jail even for a
few days which would necessarily be taken up if he has to apply for bail after
arrest.
Application for Anticipatory bail and its Contents
It is unrealistic to expect the applicant to draw up his application with the

meticulousness of a pleading in a
civil case and such is not the requirement of the section. But specific events and
facts must be disclosed by
the applicant in order to enable the court to judge the reasonableness of his belief.
Apart from the fact that the very language of the statute compels this contraction
there is an important
principle involved in the insistence that facts on the basic of which a direction
under sec. 438 (1) is sought
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must be clear and specific, not vague and general it is only by the observance of
that principle that a
possible conflict between the right of an individual to his liberty and the right of
the police to on investigate
into crimes reported to them can be avoided.
Rule of prudence requires that the notice should be given to the other side before
passing a final order for
anticipatory bail so that wrong order of anticipatory bail so that wrong order of
anticipatory bail is not
obtained by a party placing incorrect or misleading facts or suppressing material

facts.
Authorities Competent to grant bail
Police officers, Magistrates, courts and Government are empowered to grant bail
under the various
provisions of the code of Criminal Procedure code.
(a) Police Officers: Police officer are empowered to grant bail to persons arrested
without a warrant under
sec. 41 (when police may arrest without warrant) or sec. 42 (Arrest on refusal to
give name and residence)
or Sec. 43 (Arrest by private person and procedure on such arrest) or Sec. 151 Cr.
P.C. (Arrest to prevent
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the Commission of cognizable offences) or to a person arrested under a available

warrant issued by a
court, or to accused person to appear before the court when required.
(b) Magistrates and Courts: The Magistrates and Court are empowered to grant
bail to any accused
person. The provisions elating to bail are laid down in various sections of the Cr.
P.C. like 436 to 439 in
chapter XXIII of the Cr. P.C. the question of granting bail for apprehending arrest
has been provided in sec.
438 of Cr.P.C.
(c) Government: Under sec.339 Cr. P.C. the Government may, upon and
application who is lunatic and on
such relations or friends giving security to the satisfaction of the state Government
concerned, Order
relatively or friend. Under sec. 432 Cr.P.C. The Government is empowered to

suspend or remit sentence.
The usual practice is that a person desiring bail should first approach the lower
court, but this practice is not
inflexible because under sec 439 Cr P.C. special power have been conferred on the
High Court or the court
of session regarding bail. Further when a person has reason to believe that he
may/be arrested on an
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accusation of having committed a non-bailable offence he may under sec, 438 Cr

P.C. apply to the High
Court or the court of session for a direction under the said section and that the
Court may if it thinks fit direct
in the event such arrest that he shall be released on bail.
In order to enable the judge to decide whether bail should be granted or not and
what exactly are the terms
on which he should be granted bail. It would be advantageous of notice is given to

the public prosecutor.
Though there is no provision which compels the court to give notices to the public
prosecutor before
granting bail the court has such power to direct notice in appropriate cases. Since
bail in bailable cases is a
matter of right for the accused to be enlarged on bail, there is no scope for giving
notice to the Public
prosecutor.
The circumstances which should be weighted on behalf of the prosecution and

against the accused are:
1) That there is every liklyhood that the accused will be absconding on his release.
2) That there is a reasonable apprehension that the accused might tamper with the
evidence of the
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prosecution witnesses by his influence where by the prosecution would be hindered

and would not get a
fair opportunity of adducing incriminating evidence against the accused.
3) That there is danger of such offence being repeated and continued etc.
FORM OF BAIL APPLICATION
It is also keep in mind by the students that so long as an accused is not charge-
sheeted, the case against
him is not numbered as the court case on its file; and hence it is referred as Cr P.C.
No. (Crime Register
Number) which relates to the particular Police station to which the offence has
been reported to. But, as
soon as the charge-sheet is filed in the court, the case s numbered as Court-case on
its file.
In the Court of Judicial Magistrate,
Misc. Application No of 2009
Cr P.C. No ……………….of 2009
State V ……………….Accused
Offence u/s 304- AIPC
Police State ……………….
Application for Bail under Sec.436 Cr.P.C.

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The humble application on behalf of MR. ………………. s/o

shri………….R/o………….police station
……………….District ………………. respectfully submitted:
1) That the application 1 accused was arrested by the Police of Police Station
.............. on
……………….and sent up for remand to custody in the above case.
2) That the applicant is innocent and has not committed the offence mentioned
above
3) That the offence is available and the applicant is prepared to furnish bail.
Prayer
It is, therefore respectfully prayed that the Court be pleased to order that the
applicant be released on bail
pending decision on the above case.
Place Applicant
Dated or
Counsel for the applicant
(File Vakalatnama of the accused along with this bail application.)
IN THE COURT OF JUDICIAL MAGISTRATE,
CRIMINAL CASE NO ……………… of 2009
State V……………….Accused)
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Offence under Sec. 13U.P.
Gambling Act
Police Station ……………….
Application under sec. 436 Cr P.C.
The humble application on behalf of………………. s/o shri.

……………….R/o………………., police
Station ………………. respectfully showeth as follows:
a. That the application is a respectable citizen and he has been falsely implicated
the above case.
b. That the offence is bailable and the applicant is prepared to furnish bail for his
appearance.
PRAYER
It is, therefore respectfully prayed that the court be pleased to grant bail to the
applicant. Applicant
Place or
Date Counsel for the applicant
BEFORE THE COURT OF JUDICIAL MAGISTRATE
MISC APP. No. …………………….. of 2009
In
Criminal case No ……………….……………….of 2008

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State ………………. Vs ……………….Accused
Under sec.25 Arms Art,
Police station .
Application under sec. 437 Cr P.C. 1973
The humble application on behalf of Shri ……………….S/o Shri

……………….R/o……………….Police
Station ……………….District………………., respectfully showeth as follows:
1) That the applicant is a respectable citizen and has never before been arrested or
challenged
2) That the application is innocent and been falsely implicated in the above case
due to enimity.
3) That there was no recovery of any incriminating article from the possession of
the applicant.
4) That a pistol was recovered from a bush in front of the applicant's house, of
which the applicant was
unaware till the recovery.
5) That the offence of non-bailable but there is no evidence to connect the

applicant with it and the
circumstances do not exclude the possibility of some one having thrown, or

concealed the pistol
PRAYER
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It is therefore, respectfully prayed that the court be pleaded to allow bail to the
applicant.
Dated: Applicant
Place: or
Counsel for the applicant.
In the court of Chief Judicial Magistrate, ………………. MISC Application No.

………………. Of 2009
In
Criminal Case No ……………….……………….of 2009
State of ……………….V………………. (Accused)
Under sec.147/302 IPC
Police Station .
Application under sec. 437 Cr P.C.
The humble application on behalf of shri……………….slo

Shri……………….R/o………………. Police
Station ………………. District………………. respectfully showeth:
1) That the applicant was arrested by the police Station and he has been in
detention since then.
2) That the applicant is innocent.
3) That the police have not completed their investigation and no-charge sheet has
yet been received
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though more then 60 days have expired since the detention of the applicant in
custody.
4) That the detention of the applicant is under the circumstances illegal and
contrary to the provisions
of sec. 167 Cr P.C.
PRAYER
Place: Counsel for the applicant
Dated:
IN THE COURT OF SESSIONS JUDGE,
Criminal case No ……………….of ……………….
In
State of ……………….V ……………….Accused
Under sec. 147/3021PC
Police Station……………….
Application for bail under sec. 437 Cr P.C.
May it please your Honors?
The accused above named respectfully submits as follows:
1) That the applicant is a peace-loving, respectable. law-abiding citizen who has

been falsely
implicated in the above case.

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2) That the applicant was arrested on and he has since then been in custody for the
lost four months.
3) That the charge-sheet in the above case was submitted to the court about a
month ago but the
applicant has been remanded to custody to enable preparation of the copies of

documents to be
delivered to the applicant.
4) That there is no provision authorising the Magistrate thus to remand the

applicant to custody for the
purpose state above and the detention of the applicant is illegal and contrary to law.
PRAYER
It is, therefore respectfully prayed that the court be pleased to allow the applicant
to be released on bail.
Dated: Counsel for the applicant
Dated:
IN THE COURT OF SESSION JUDGE
Misc Application No ………………. of ……………….
In
Criminal Case no. ………………. of ……………….
State of………………. V……………….......... (Accused)
Under sec. 147/436, IPC

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Police Station . ……………….
Application for anticipatory bail under sec.438 Cr P.C.
The humble application of:
(1) Shri ………………. s/o………………. R/o………………..
(2) Shri ………………. s/o………………. R/o………………..
(3) Shri ………………. s/o………………. R/o………………..
Station respectfully showeth as follows:
1) That the applicants are the students of the University.
2) That the applicant No.(1) is a student of LL.B. Final yr. of the University.
3) That the applicant No. (1) was elected to the office of the General Secretary of
the University
students Union in the last academic session of the University and shall continue to
hold the said
office till the assumption of offices by the new office-bearers of the Union to be
ejected in the Union
Elections Scheduled to e held on: -
4) That remaining applicants numbered (2) (3) are the supporters 0 the application
No (1) and all
the applications are members of …………. which is an association of students in

the guiding
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activities of the students n the various Universities and educational institutions of

the state and
sponsoring candidates for elections to various· offices of the students· Union in the
aforesaid
Universities and institutions.
5) That the applicant No.(1) was nominated by the said Association as its candidate
to contest election
for the office of the president of the Uni. Student Union at the next Union
Elections referred to in
paragraph (3).
6) That Canvass ingon behalf of applicant no. (1) Is in full swing and all the
applicants are actively
participating in it.
7) That on ………….the applicants led a peaceful demonstration of students

numbering several
hundreds to the residence of he Vice-Chancellor of the University to protest

against the partiality
and unfair discrimination exercised by the members of the Admissions Committee

of the University
in making admissions to the various classes of the University.
8) That when the applicants were having peaceful talks with the Vice-Chancellor
in the presence of the
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demonstrators who were also standing peacefully, there was the loud explosion of
a bomb
damaging a part of the residence of the Vice-Chancellor and setting at ablaze.
9) That the applicants and the demonstrators rushed to quench the fire and catch
hold of the
miscreants who managed to escape unnoticed.
10) That the applicants are innocent and it appears that the explosion was
manipulated by elements
opposed to the applicants and interested in damaging the election prospects of

applicant No. (1)
And causing the applicants to be arrested on the very eve of the said election.
11) That a case under section 147/436, IPC has been registered by the police and
the applicant
apprehend that they might be arrested therein and thereby prevented from carrying
on the , election
campaign.
12) That the offence is non-bailable. The application having no desire to evade the
due process of law
shall face the trial. The applicants shall make then selves available for interrogation
by a police
office as and when required.

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13) That the applicants shall not, directly or indirectly, make any inducement,
threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing
such facts to 1lhe
court or to any police officer.
PRAYER
It is, therefore respectfully prayed that the court be pleased to give a direction that
in the event of the rest of
the applicants the applicants be released on bail for such amount of money as the
court deem it: to fix in the
interest of Justice.
Place: Applicants
Dated: or
Counsel for the applicant
IN THE HIGH COURT OF AT
Misc Application No ………….
In the matter of an application for bail under sec. 439 (1) (a) of Cr P.C. 1973.
And
In the matter of Criminal case No ………….of ………….the Court of Session

at…………... ………….under
sec. 122 I P.C.

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And
In the matter of ………….Shri………….son of………….R/o………….Police

station.
To,
The Hon'ble Chief justice and his companion Justices of said Hon'ble Court. The
humble petition of the
petitioner above named.
Most respectfully showeth :
1) That the petitioner along with 28 persons was committed to the Court of Session
on on a charge
under sec. 122 I.P.C., on the allegation that your petitioner conspired with certain
persons to wage
war against the Government of India and has been collecting arms, ammunition,
etc. for the
purpose.
2) That the trial at the session court Commenced on ………….and as many as 65

witnesses have
been examined by the prosecution at the trial.
3) That although the prosecution evidence has been closed and the statements of he
accused
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persons are being recorded there is no likelihood of the trial being terminated soon
and that it will
protect for a considerable length of time.
4) That petitioner's application for bail at the trial court was rejected on
………….while some
application for bail of some of the accused were allowed.
5) That the petitioner is a social worker having done many social works known to
the people of the
locality where he is being held in great esteem.
6) That there was no impediment in granting bail to the petitioner as there is no

danger of the
petitioner's fleeing from justice nor of his tampering with the prosecution
witnesses.
7) That the petitioner is in jail for the last one year and so if he be kept in jail he
fears that he will not be
able to defend himself properly.
PRAYER
In the facts and circumstances set fort above your petitioner most humbly prays
that your lordships may be
graciously pleased to release your petitioner on jail.
And your petitioner as in duty bound shall ever pray.

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Dated:
Place : Counsel for the Applicant
(IV) MEMORANDUM OF APPEAL AND REVISION
Ordinarily appellate jurisdiction involves a rehearing as it were in law as well as

fact and is invoked by an
aggrieved person. Ordinarily again revisional jurisdiction is analogous to a power

of Superintendence and
may sometimes be exercised without its being" invoked by a party. The conferment
of revisional jurisdiction
is generally for the purpose of keeping courts subordinate to the revising court
within the bounds of their
authority to make them act according to law, according to procedure established by

law and according to
well defined principles of justice. The extent of revisional jurisdiction is defined by

statute and has to be
82
considered in each case with reference to the language employed by the statute.
Appeal in Code of Criminal procedure
The right of appeal is not only a matter of procedure but it is a substantive right.
The right of appeal is a
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creation of statute; it is neither a fundamental nor an inherent right. There can be

no inherent right of appeal
form any Judgment or order unless an appeal is expressly provided for by the law
itself. Statute governs the
right of appeal. Appellate powers depend on the language and words of the statute.
The provisions related
with Criminal appeal are provided under sec.372-394 of the code of Criminal
Procedure.
The expressions "appeal" and "memorandum of appeal" are used to denote two
distinct things: The appeal
is a judicial examination whereas the memorandum of appeal contains the grounds

on which the judicial
examination is solicited. The appeal is not a second trial but it is a continuance of

the same in a higher court.
Let us draft the memorandum of appeal. The first thing that we have to do is to
obtain the judgment of tile
trial court then it should be carefully and critically examined scrutinizing the
conclusions which the court has
come to in relation to the hypothesis and in the light of the actual evidence of the
case. This would help us in
noting the defects of the judgments, its faculty logic, its sweeping generalization,
its weaknesses for
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accepting one patty's evidence against that of the other and the attempts made in
the Judgment to come to
a particular conclusion by the court. This gives us an insight of the working of the
mind of the author who
wrote the judgment.
Secondly we should note whether the rules of the procedure have been strictly
adhered to or have been
violated to the prejudice of the accused person thus after going through the
judgment; the memorandum of
appeal should be drafted setting forth grounds on which the judgment is not
sustainable and should be
presented aIong with a certified copy of the judgment of the trial court to the court
of Appeal. It may be
presented by the appellant or by his advocate. In an appeal against a concoction at

a session's trial the
memorandum of appeal should contain the question of law raised.
After the appeal is file, it is posted or fixed for preliminary hearing before
admission bench on one day when
the appellant or his advocate is heard; if the judge of the Bench is satisfied with the
grounds of appeal then it
is admitted and notice is issued to the other party and a date is fixed for the final
hearing of the appeal; and if
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not satisfied then it is rejected No. Criminal appeal can be dismissed for default of
appearance by the party
(as in a civil case). The dismissed has always to be on the merits of the case. An
appeal abates only in case
of the death of the appellant (accused).
The appellate court has a number of alternatives before it. It an appeal from a
conviction it can reverse the
finding and the sentence and discharge or acquit the accused or order retrial which
is technically known as
"remand". In the case of an appeal from on order of acquittal, it can reverse the
order and direct further
enquiry to be made, or that the accused be retried or Committed for trial, or find
him guilty and pass
sentence on him.
With the memorandum of appeal the copy of the Judgment of the trial court should
be filed along with the
Vakalatnama.
Appeal can be filed in the High Court within 60 days to be reckoned form the date
of the sentence order of
the trial court. It is well settled principle of law that rules of limitation are not
meant to destroy the right of
parties.
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FORM OF MEMORANDUM OF APPEAL
In the Court of Session Judge ...
Criminal Appeal No of 2009
(Give particulars ) ……………… Appellant
Versus
State of ………….…………. Respondent
May it please your Honour,
For the following among other grounds the appellant herein begs to prefer this
appeal under sec, against
the judgment dt………….of the Judicial Magistrate …………., in Criminal case

No of…………..........
convicting the appellant under sec………….IPC and sentencing him to undergo

............... months SRI and
to pay a fine of Rs ………….
GROUNDS
a. That the learned Magistrate erred in law in taking cognizance of the case and as
such the conviction
is bad in law.
b. That the learned Magistrate overlooked the inherent improbabilities of he

prosecution case as
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revealed by the evidence of prosecution witnesses.
c. That the learned Magistrate has hardly any material for coming to the conclusion
that the accused
had full knowledge of the facts and is maliciously involved in the matter.
d. That the conviction and sentence complained of are bad in law and improper in
that they are based
on erroneous hypothesis and assumptions not warranted by the legal materials on

the record.
e. For that at all events the accused ought to have been given the benefit of doubt
and acquitted.
f. For that the sentence is much too severe.
In the circumstances stated above your petitioner pray that your Honour may be
graciously pleased to
admit appeal, call for the record, admit your petitioner to bail pending the disposal
of this appeal and after
hearing set aside the conviction and sentence or pass such other order as the ends
of Justice may call for.
And your petitioner, as is duty bound, shall ever pray
In the High Court of ………….………….
Criminal Appeal No ………….………….
Name and full

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Description ………….………….Appellant / complainant
Versus
a. Name and
b. description of
c. accused
d. and
e. state of ………….Respondents / No. 1 to 4 or accused.
Under section ………….………….
Appeal, against acquittal under
Sec ………….R/w ………….of IPC in Criminal case No ………….of

………….passed by the learned
session judge ………….
The Appellant Most Respectfully showeth as follows:
1. the facts leading. to appeal are as below: -
(Facts of the case)
2. The said trial court decided the said case on ………….and acquitted the said
accused persons. A
certified copy of the said Judgment and order is annexed hereto and marked as
Annexure – 'A'
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3. Being aggrieved by the said order of acquittal passed by the learned sessions
judge
………….on…………. in the said Criminal case No. 1- 4 are acquitted of the

charge framed against them.
The Appellant humbly and respectfully, bags to prefer this appeal against the same
to this Hon'ble court, for
leave to appeal against the said order of acquittal. The appellant, therefore, prays
that the record and
proceedings of the said Criminal case be called for, and the evidence in the case be
reassessed, and the
respondents herein (in original accused) be convicted of the offence charged, and
be punished according
to law on the following amongst other grounds:
(a) That the order of acquittal is not warranted by law and is against the weight of
evidence;
(b) That the learned session's judge approach to the entire case was that the
prosecution case was
false and hence he had accepted the defence without any reasonable ground. The
learned
Magistrate should have, on the contrary held that the prosecution has proved the
case beyond
reasonable doubt;
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(c) That the learned session's Judge should have held the story of the defence as
highly improbable;
(d) That the learned session's Judge has erred in relying on the prosecution witness
No. 4 who has
turned hostile and has suppressed the material facts.
(e) That the learned session's Judge erred in law and facts both by not having
accepted the evidence of
P W No.6 who is a Government Medical Officer who has clearly stated that the
injuries caused to the
complainant cannot be caused by fall.
(f) The learned session's Judge's judgment is against the weight evidence and
probabilities and is
based on inferences which are not sustainable in this Hon'ble court.
4. The appellant submits that he has filed, separately on application for leave to
appeal in this matter.
5. The appellant further submits that he has preferred no other similar petition in
the matter to this
Hon'ble Court.
And for this act of kindness and justice the Appellant shall as in duty bound ever
pray. Sd/-
Sd/-
Dated: Advocate for the appellant

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Place:
(This appeal against acquittal must accompany an application for leave to appeal
along with the certified
copy of the judgment and order appealed against)
CRIMINAL REVISION (Sec. 397 to 405)
In Criminal revision legality and the correctness of the propriety of any finding,
sentence of order or the
regularity of any proceeding can be questioned by the High Court or the session's
judge suomotu or on the
application made to it or him under sec. 397 and sec. 398 of the Cr P.C., 1973. Sec
401deals with the
revisional power of the High Court, and sec.399 and 400 respectively deal with the
power of revision of the
session judge.
Sec. 397 Cr P.C. congers on the High Court or a session Judge the power of
Superintendence by calling for
and examining the record of any proceeding before any inferior Criminal court
situate within the local limits
of its or his jurisdiction for the purpose of satisfying itself of himself of himself;
(i) As the correctness, legality or propriety of any finding, sentence or order; and
(ii) As to the regularity of any proceeding of such inferior court and may, when
calling for such record,
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direct that the executing of any sentence or order be suspended and, if the accused
is in
conferment, that he be released on bailor on his own bond pending the examination
of the of the
record.
All Magistrate, whether executive of Judicial and whether exercising original or

appellate Jurisdiction shall
be deemed to be inferior to the session judge for the purposes of sub-section (1) of
sec.397 and sec.398
The powers of revision conferred shall not be exercised in relation to any

interlocutory order passed in any
appeal, inquiry, trial or other proceeding.
But, I an application under sec. 397 has been made by any person either to the
High Court or to the session
Judge, no further application by the same person shall be entertained by the other
of them.
Sec. 397 (3) is to prevent a multiple exercise or revisional power and to secure
early finality to order any
person aggrieved by and order of an inferior Criminal Court is given the option to
approach. either the
sessions judge or the High Court and once he exercises the option he is precluded
from invoking the
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revisional jurisdiction of the other authority.
When a revision petition is dismissed by the sessions Judge the order is final and
no second revision
petition lies before the High Court.
Distinction Between Appellate and Revisional Jurisdictions
a. Appeal is a statutory right given to the appellant which he can demand from the
Court either on a
question of fact or on a question of law or upon both. In revision the applicant has
no statutory right
beyond inviting the attention of the court. The court has a discretion to exercise its
revisional power or
not.
b. In appeal the High Court decides both on question of law and fact, in revision it
only decides or
adjudicates on a question of law and fact, in revision it only decides or adjudicates

on a question of law;
but it may, for the ends of justice, enter into questions of fact.
c. In appeal the High Court can convert an acquittal into conviction and Vice-
versa, but in revision it
cannot convert a finding of acquittal into one of conviction.

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FORM OF CRIMINAL REVISIONS
In the Court of Session Judge:
CRIMINAL REVISION NO -
A………….…………. petitioner
Versus
State of …………. Respondent
Revision petition under sec. 397 Cr P.C. against order dt ………….in

Criminal case no………….
The petitioner above named most respectfully submits this revision petition against
the order
aforementioned on the following amongst other grounds of revision.
GROUND OF RIVISION
a) Because the order passed by the learned magistrate is incorrect, illegal,

improper.
b) Because the order of the learned Magistrate is illegal and against the facts on
record.
c) Because the proceedings before the court of the magistrate are irregular due to
the following
reasons.
(a)
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(b)
(c)
PRAYER
It is therefore most respectfully prayed that the record of the Criminal case No
………….of ………….state V
. …………... be called for and examined and the revision petition may be allowed
and the sentence order
recorded therein be set aside. It is further prayed that the sentence may be
suspended pending the Criminal
revision in this court and the accused petitioner be released on bail.
Dated:
Place: Counsel for the petitioner
_________
CONVEYANCING
"Convincing" is an art of drafting deeds and documents whereby any right, title or
interest in an immovable
property is transferred from one person to another. Such persons may be natural or
artificial i.e. Corporate,
the company, the society or the corporate sole as the case may be.
Conveyancing is based on law and legal principles which have been evolved in the
sphere of
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Conveyancing over years or rather Centuries. The objective of Conveyancing

cannot be possible without a
thorough knowledge an understanding of the legal provisions applicable on the

subject matter of transfer of
property· or right therein.
In the present world, the scope of Conveyancing has become very wide and
extensive in use and
advantage to different fields of business, profession and industries,
Drafting document is now a legal task and not merely a technical one. Different
types of deeds require
knowledge of different types of law on which those deeds are based. To draft a
trust deed, the law of the
country regarding creation of trusts is very much essential to be known.
In the ancient times in England the deed writing was optional and continued to
remain optional until the time
of King Charles II, particularly the cases in which the deed was required not to be
under seal. Writing was
required only in the matter of great importance. It was only during the reign of
king Charles II that the British
parliament enacted in 1677 a legislation requiring writing for creation and transfer
of interest in landed
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property with an exception in case of lease for less than three years. The Real
Property Act. of 1845
required all grants of landed interest to be made by writing which became known
as "Conveyancing" the
pr8$entform of Conveyancing is based on the Conveyance of land Act of 1845 and

the Iaw of property Act
1925.
(1) In India the forms of Conveyancing are based on the present English forms.
No. legislation in India has
ever been passed on the law of Conveyancing. Conveyancing in India is not

unknown as the words,
"Qabuliyatnama", "Jagirdar", "Muafidar" and "charpatra". etc are accruing from

ancient days in the India
literatures. Thus, as in England and so in India, too, there are two types of deeds -
"Deed poll" and
"indenture". Charpatra (Redemption of rent), Jagir grants, Qabuliyats, etc. were all
of the nature of Deed
polls. The deed poll is a document which is executed unilaterally in the first person
while on indenture is a
bilateral or multilateral deed. Bonds, power of attorney and wills are "deed polls",
Mortgages, sales gifts,
and lease is bilateral document and so they are "Indenture".

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Principal of drafting of drafting of document may be classify into 4 parts-
(1) clarity of expression -
(2) Design of the draft -
(3) Precision of language -
(4) Communicability of the intention of the parties to the document.
(i) Clarity of Expression -
It is the first principle of drafting of Conveyance or document that what ever is

being scribed, it must be clear
in its expression. It should. be unambiguous, that is, it must not have two meaning
of any expression used in
drafting. The sentences for the purpose should be short and easily understandable,
should not have
compound and compels sentences, so that the reader or the person using the
document should not have
any difficulty in understanding the meaning of the sentence which is being scribed.
The words used should
not be technical or in a foreign language. Which the parties do not understand at

all. Everyday language of
the place or state should be used in the drafts being prepared.
(ii) Design of the draft -

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The design of the drafts should be in conformity with law. But however it should
not be too technical which
may entangle the parties in the technical design of the document itself and the real
intention of the
document may be kept behind that technical draft concealed under it. As a matter
of fact the parts or parcels
of a document are not prescribed by any law. These are simply the production of
document expects for the
sake of convenience to learn the art but it is not the end of goal of the art it self. It
is merely for the practice of
the art of Conveyancing so that the draftsman may express the statement of the
document serially and
chronologically and rather systematically the design is simply to be followed so

that nothing material or
relevant may be left or omitted and nothing unnecessary may be included in the
document, which is quite
irrelevant for the purpose. A well-drafted deed is that which is strictly logical step
by step and has nothing
emotional or imaginary or unsystematic.
(iii) Precision of language -
The language of the document must be precise, the words used for a particular
meaning should be used. If
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the words used in the draft do not convey the exact meaning, then the draftsmen
should not hesitate to
explain the same. The deed must be intelligible to laymen even. It should no be
made a classic to be
understood only by the advocated or traditional draftsmen. It should not become a

subject of interpretation
in order to come to a conclusion what does the expression or the language means to
convey. A draftsman
should keep· in mind the following rules:
i. Familiar words of every day common language should be preferred over too
technical words.
ii. Concrete words should be preferred over the abstract words or words of the
imaginary world.
iii. Short words should be preferred to the long or compound words.
iv. Simple Sentences should be preferred to compound or complex sentences, and
v. Active voice of grammar should be preferred to the passive voice.
vi. Communicability of the intention of the parties to the document.
The only purpose of scribing a deed is to communicate the intention of the parties
to the other parties to the
document and the public at large who may come in contact with the document or
the property which is the
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subject matter of that document the real intention of the parties to the deed should
be very honestly
expressed and communicated by such document. The intention aforesaid should e

so expressed, as it may
make it easily to be understood and be made operative by way of the deed. The
principle of communication
of the intention of parties to the deed should be well respected and followed by a
draftsman
(I) ESSENTIALS OF A DEED
An instrument Or deed usually consists of three parts: -
(A) The non-operative part,
(B) The operative part, and
(C) The format part
The non-operative part contains: -
(i) Description or name - It is usual but not necessary to begin a deed by giving it
a name. The name has to
be chosen with great case. The name should be indicative of the true contents of
the deed, sometimes in
construing a deed. The name has also to be taken into consideration. The nature of
the transaction
depends entirely upon the terms of the deed.

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(ii) Date of the deed - It is usual to give the date on which a deed is executed
either after the name or at the
end before the signatures. The date is stated thus:
This deed of sale made on the fifth day of September, one thousand nine hundred
and eighty-two (5th day
of September) between ………….
If the deed does not mention the date on which it will come into effect a
presumption arises that it will come
into effect from the data of execution. Certain deeds take effect from the date if
delivery of the deed. In such
cases it is the date of delivery which is the date of the deed. Wills take effect not
from the date of execution.
Certain deeds take effect from the date of delivery of the deed. In such cases it is
the date of delivery which
is the date of the deed. Wills take effect not from the date of execution but from the
date of the death of the
executants (testator)
(iii) Parties to the deed: -
(a) After the name and date of the deed the names of the parties to the deed are
setout. The names name
and particulars of the parties should be given in such detail from which the parties
can easily be identified. It
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is usual to describe parties by their name, age, parentage, occupation and

residence. In cases where it is
intended that the successors the parties win also be bound by the deed it is usual to
add a clause after the
description of the parties stating;
The parties shall include their heirs, successors, assigns and legal representative it
is necessary for the
draftsman to determine the parties who should be joined before drafting a deed.
(b) Description of certain parties: -
Companies and firms are described thus:
The Delhi sugar Mills Co. Ltd. A company registered under the companies Act,
1956 having its registered
office at………….(add ress) Delhi.
A B, son of …………. resident of, ………….a partner of, and acting for and on
behalf of the firm carrying on
business under the name and style of ………….(firm's name) at…………. (firm's
address)
Minor: can act only through their guardians:
A B, son of …………. resident of ………….a minor, acting through his

………….and natural guardian
………….C.D., son of ………….resident of …………. a lunatic can act only

through a manager appointed
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by the court. He is to be described thus:
A B, son of ………….resident of …………., a lunatic, acting through acts through

its trustees:
A,B,C,D and E,F, trustees of the trust known as ………….trust, situate at..
………….
Government :
Contracts on behalf of the Union and state Government are entered into in the
name of the president or the
Governor as the case may be. (Act. 299 constitution) they are executed by persons
who are authorized in
this behalf by the president or the Governor.
(c) Reference to parties in the body of the deed:
Unilateral deeds: Since there is only one party he can refer to himself as 'I' or as
"the executants" in the
body of the deed.
Bilateral deeds: it is usual to describe the parties by their capacities like:
Between A B………….(Herein after called the Lessee) and C.D. …………. (Here
in after Called the Lessee)
………….
In subsequent parts of the deed they be referred to as the lessor and the lessee.
Multilateral deeds: the
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description is:
This deed of partition dated ………….between A B ………….(Party of the first

part), C,D, ………….(Party of
the second part), E, F………….(part of the third part)
In the body of the deed they are referrer to as "party of the first part" etc.
(iv) Recitals: These are a narrative of what has led to the necessity or desirability
of executing the deed or
document. They contain a brief history or in short form the motive for making the
deed. Recitals begin with
the familiar words "whereas the parties are desirous of or have agreed on some
particular course of action,
etc." Recitals usually show the reasons and the history of title designed to show
that the grantor is entitled to
make the disposition. These must beset out in such a manner as to show a complete
unbroken chain and is
such order that they are properly connected and consistent.
Where the operative part of a deed is unambiguous the recitals have no effect on
the construction of the
deed but if the operative part is ambiguous, the recitals govern the construction.
(B) The operative part contains:
(i) Testatum or premises: - After the recitals the operative parts of the deed begin
generally with the words
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"Now this deed witnesses that". 'This part gives effect to the intention of the parties
and sets out in detail the
transaction between the parties. It sets out the capacities in which the parties are
acting and the payment
and receipt of consideration. Words like "grants", "agrees", "confirms", "sells",

"transfers", "conveys",
"assigns" etc. are used to denote the purpose and object of the deed. In this part the
property which is the
Subject of the deed is also described.
(ii) Hebendum: Next follows the habendum. This part of the deed used to be
introduced by the words "to
have and to hold", now generally shortened to "to hold". This purpose of the
habendum is to define the
interest conveyed and to set out the limitation on the property involved. It shows
whether or the creation of a
trust or an obsolete sale. It mentions whether the property is encumbered or not. It

also names the grantee
again. The habendum is not an essential or necessary part of a deed.
(iii) Exception and reservations: In this part of the deed all the exceptions and
reservations which are
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intended to be attached to the transfer should be clearly stated. For example, if it is

desired to lease out a
parcel of land the transferor may desire to retain the right to extract minerals
therefrom, or again a person
may reserve the right to pass rainwater over the land demised-all such exceptions
and reservations must
be clearly set forth in this part of the deed .
(iv) Covenants:- Almost every document, whether a sale, lease or mortgage must
contain terms by which
the parties bind themselves. It is not necessary to mention such covenants as are
attached by law to a
particular transaction, but if any special terms or agreements are made at variance
with the implied
covenants then these must be clearly 'state'. For instance, a lease under the transfer
of property Act implies
the right to sublet, but the parties may impose conditions against subletting. In such
a case the terms must
clearly be given in the deed.
(c) The formal part contains:
(i) The Testimonium: - This set forth the fact that the parties have signed the deed.
It usually begins with the
words:
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In witness whereof the parties aforesaid, namely, have on the day and year just
above- mentioned put their
signatures in the presence of the witnesses.
It the date of the execution of the deed has not been given in the beginning it is to
be given in this part. In
place of the words "the day and year just above-mentioned" the words "this day
of ………….20 …………." are to be substituted;
(ii) Signature and attestation: -Immediately following the testimonium the

parties put their signatures.
There after the witnesses put their signatures if the deed requires attestation then
the executants must sign
in the presence of the witnesses and the witnesses must sign in the presence of the
executants. In such a
case after the signatures of the executants the following words are written:
Signed by the above-named parties in our presence and we have signed in his
presence.
Then follows the signature of the witnesses. Where a document consists of more
than are page the-parties
and witnesses must sign each page.
(iii) Parcels of description of the property: - the property is described in detail

accurately and correctly
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either at the foot of the deed or in schedules annexed to the deed. The object of the
description is to make
the property easily identifiable. Sometimes a plan is attached and made part of the
deed. Some guidance in
this respect may be taken from the provisions of sec. 21 and 22 of the Registration
Act, 1908.
Sec. 21- Description of property and maps or plans: -
a) No non-testamentary document relating to immovable property shall be

accepted for registration
unless it contains a description of such property sufficient to identify the same
b) House in towns shall be described as situate on the north or other side of the
street or road (which
should be specified) to which the front, and by their existing and former
occupancies, and by their
numbers if the houses in such street or road are numbered.
c) other houses and lands shall be described by their names, if any, and as being in
the territorial
division in which they are situate, and by their superficial contents, the roads and
other properties on
which they about and their existing occupancies, and also, whenever it in
practicable by reference to a
government map or survey.

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d) No non-testamentary document containing a map or plan of any property

comprised therein shall
be accepted for registration unless it is accompanied by a true copy of the map or

plan, or, in case such
property is situate in several districts, by such number of time copies of the map or
plan as are equal to
the number of such districts.
Sec. 22 Description of the houses and land by reference to government maps or

survey: -
(i) Where it is, in the opinion of the state Government practicable to describe
houses, not being houses in
towns, and lands by reference to a government map or survey, the state

Government may, by rule made
under this Act, require tat such houses and lands as aforesaid shall, for the purpose
of sec. 21 be so
described.
(ii) save as otherwise provided by any rule made under sub-section (i) failure to
comply with the provisions
of sec 21, sub sec. (2) or sub-section (3), shall not disentitle a document to be
registered if the description of
the property to identify that property.
Attendant requirements of execution:

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It is essential for the draftsman before putting pen to paper to consider whether the
parties to a deed are free
to contract in the capacity in which they intend to contract. For instance, a minor
cannot contract except
through a guardian, natural or one appointed under the provisions of the Guardian
and wards Act, 1890 and
sometimes the leave of the court has to be taken before the deed can be executed.
In the case of joint Hindu
families a contract by a kurta has to be in his personal capacity and as manager of

his joint family. These
and such like impediments have to be taken into account and the draftsman would
be well advised to
thoroughly study this aspect of the matter.
After the deed has been drafted, if the parties are illiterate the deed should be read
out to them and
thoroughly explained to them. Execution includes attestation and the necessary

number of witnesses must
be present at the time when the parties put their signature or mark or cause the
same to be put upon the
deed. Thereafter the witnesses must be sign in the presence of the parties
Construction or interpretation of documents
Some of the main rules of constructing deeds are:

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a. The meaning of the document or of a particular part of it is to be sought for in

the document it self.
The intention of the parties must be discovered, if possible, from the expressions
they have used.
The question is not what the parties intended to say, but what they have said.
b. Clear and unambiguous words prevail over an intention, but if the words used
are not clear or
unambiguous the intention will prevail.
c. The plain, ordinary meaning of the words used is to be adopted in constructing a

document. Words
are to be taken in their literal meaning.
d. The literal meaning which the parties were in the habit of affixing to the
expression employed.
e. Technical legal terms will have their legal meaning.
f. Extrinsic evidence may be admitted, not for finding out the writer's intention, but
only to interpret the
language used.
g. The deed must be construed as a whole.
Exclusion of oral evidence by documentary evidence:
Once a document has been executed no oral evidence will be permissible in proof
of the terms of the
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contract, grant or other disposition of property except the document itself or

secondary evidence of the
contents of the document when permissible (sec.91, evidence Act, 1872)
When the document has been proved, no evidence of any oral agreement or
statement shall be admitted
for the purpose of contradicting, varying, adding to or subtraction form the terms
contained therein (sec.92
evidence Act, 1872)
When the language used in a document is on its face, ambiguous or defective,

evidence may not be given
of facts which would show its meaning or supply its defects. See 93 evidence Act.
1872)
When the language used in a document is plain in itself, and when it applies
accurately to existing fads,
evidence may not be given to show that it was not meant to apply to such facts.
(Sec.94)
When a language used in a document is plain in itself, but is unmeaningful in

reference to existing fact,
evidence may by given to show that it was used in a particular sense. (sec. 95,
Evidence Act)
Sec.96. when the facts are such that the language used might have been meant to
apply to anyone and
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could not have been meant to apply to more than one, of several persons or things
evidence may be given
of facts which show which of those persons or things it was intended to apply to.
Sec.97. when the language used applies partly to one set of existing facts, and
partly to another set of
existing facts, but the whole of it does not apply correctly to either, evidence may
be given to show to which
of the two it was meant to apply.
Sec.98. Evidence may be given to sow the meaning of illegible or not commonly
intelligible characters, of
foreign, obsolete, technical, local and provincial expressions, of abbreviations and

of words used in a
particular sense.
Attestation:
To attest means to be witness to, Attestation is defined in sec. 3 of Transfer of

Property Act, 1882 thus
"Attested" in relation to an instrument, means and shall be deemed always to have

meant, attested by two
or more witnesses each of whom has seen the executants sign or affix his mark to
the instrument, or has
seen some other person sign the instrument in the presence and by the direction of
the executants, or has
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received from the executants a personal acknowledgement of his signature or

mark, or of the signature of
such other person, and each of whom has signed the instrument in the presence of
he executants, but it
shall not be necessary that more than are of such witnesses shall have been present
at the same time, and
no particular form of attestation shall be necessary.
Some of the documents which are required by law to be attested are; Bonds
(sec.265 of stamp Act, 1899),
Gift deed in respect of immovable property (sec. 123, transfer of property Act,
1882) Mortgagee (sec.59,
Transfer of property Act, 1882) and wills (sec.63, Indian Succession Act, 1925).
Attestation is not necessary
for the validity of documents not required by law to be attested but in practice it is
invariably, adopted as the
witnesses can be called to prove the execution of the deed when required. The
witness must sign as a
witness and for the purpose of attesting the execution. A party to the document
cannot be and attesting
witness. It is not necessary that the attesting witnesses should be made aware of the
nature or contents of
the document. They are merely witnesses of the execution of the document by the
executants.
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The rules relating to proof of execution of documents by attesting witnesses are

contained in sections 68 to
92 of the Indian Evidence Act, 1872. These sections real as below:
Sec.58. Proof of execution of document required by law to be attested: If a

document is required by
law to be attested, it shall not be used as evidence until one attesting witness at
least has been called for the
purpose of proving its execution, if there be an attesting witness alive, and subject
to the process of the
court and capable of giving evidence.
Sec.59. proof where no attesting witness found: It no such attesting witness can
be found, or if the
document purports to have been executed in the United Kingdom, it must be

proved that the attestation of
one attesting witness at least is in his handwriting, and that the signature of the
person executing the
document is in the handwriting of that person.
Sec.70. admission of execution by the party to attested document: The

admission of a party to an
attested document of its execution by himself shall be sufficient proof of its

execution as against him,
though it be a document required by law to be attested.

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Sec.71 : Proof when attesting witness denies the execution may be proved by other
evidence.
Sec.72. proof of document not required by law to be attested: It the attesting

witness denies or does not
recollect the execution of the document, its execution may be proved by other
evidence.
Stamp Duty: Sec. 3 of the Indian stamp Act, 1899, provides that every instrument
shall be chargeable with
duty of the amount indicated in Schedule I Amendments have been made to the
stamp act by almost every
state. On account of this the duty chargeable on an instrument values from state to
state. Duty on an
instrument is payable as prescribed in the state in which the instrument is executed.

If the instrument is
sought to be used in another state, where the duty prescribed for that instrument is
higher, then the
difference between the two has to be paid in addition to the duty already paid
before the instrument can be
so used. A draftsman must be conversant with the requirements of the stamp Act;
He must familiarize
himself with the duty chargeable on the instrument in the state where the
instrument is executed. An
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efficient draftsman has not only to Sec. that the proper duty is paid on an
instrument but also to be seen that
no extra or avoidable burden is placed in the executants. A clever and able

draftsman will easily be able to
word his instrument in such a manner as to be chargeable with the minimum duty
Sec. 10 and the rules made there under prescribed how stamp duties are to be paid
most instruments have
to be written on non-judicial stamp-paper of the requisite value. Sec. 11

enumerates the instruments which
maybe stamped with adhesive stamps.
An instrument not duly stamped is not invalid, but it is incapable of being used in
evidence until it is stamped
properly. Sec. 35 of the stamp Act lays down the disabilities with which an
instrument not duly stamped
suffers. Sec. 62 provides that every person executing, making or using an

instrument without the some
being duly stamped shall be punishable with fine which may extend to five
hundred rupees.
Registration
(i) Compulsorily and optionally registrable documents.- Sec. 17 of the

Registration act, 1908 enacts
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that where a document is executed to effectuate any of the transactions spe~ified in

Sec. 17,' such
document must be registered not with standing that the transaction is one which the
law does not require to
be in writing. The registration of these documents is compulsory. Sec. 18 specifies

the documents of which
registration is optional. In fact every document can be registered some state

amendments provide that the
registering officer shall refuse to register any document presented to him for
registration unless it is
accompanied by a time copy thereof.
(ii) Time of Presenting: A document must be presented for registration within

four months of its execution
(Sec. 23). Where a document is executed by different persons at different times it

may be presented for
execution within four months form the date of each execution. The sub-registrar
has no power to extend the
time or to condone the delay in presenting a document for registration. But where a
document could not be
presented within time owing to urgent necessity or unavoidable accident" the

Registrar, when the delay in
presentation does not exceed four months may condone the delay on payment of a
fine not exceeding ten
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times the amount of the proper registration fee. There does not appear to be any
power to condone delay
beyond four moths. However, a will may be presented for registration at any time.
(iii) Place of Presenting: A document relating to property has to be presented for

registration in the office of
the sub-registrar within whose sub-district the whole or some portion of the
property to which the
documents relates is situate. Other documents maybe presented for registration

either in the office of he
sub-Registrar in whose sub-district the document was executed or in the office of

any other subRegistrar
under the state Government at which all the person executing and claiming under
the document desire it to
be registered.
The Registrar may in his discretion receive and register any document which might
be registered by ay subregistrar subordinate to him.
(iv) Who may present document for registration registration: A document to

be registered is
required to be presented at the proper registration office:
(a) By some person executing or claiming under it;
(b) By the representative or assign of such person, or

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(c) By the agent of such person, representative or assign, duly authorised by a

power of attorney
executed and authenticated in accordance with the provisions of Sec.33
(d) Effect of registration : A registered document operates from the time from
which it was intended to
operate and not from the date of registration.
A registered document, other than a will relating to property, takes effect against
any oral agreement or
declaration relating to such property except when the oral agreement or declaration
is accompanied or
followed by delivery of possession and the same constitutes a valid transfer under
the law.
(vi) Effect of non-registration: A document which is compulsorily registrable but

is not registered fails to
effect and is void as regards immovable property. It cannot affect any immovable
property comprised
therein or confer any, power to adopt. It cannot be received in evidence of any

transaction affecting such
property or conferring such power. But such a document may be received as

evidence of a contract in a suit
for specific performance or as evidence of part-performance of a contract for

purposed of Sec. 53-A of the
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transfer of property Act, 1882. Or as evidence of any collateral transaction not

required to be effected by a
registered instrument (Sec. 49 of the Registration Act, 1908) Sec. 49 hits

instruments and not transactions.
A registered document relating to immovable property takes effect as regards the

property comprised
therein against unregistered document relating to the same property even j the two
documents are not of
the same nature (Sec. 50)
Hints on drafting: on drafting: The object with which a document is executed is

to state the intentions of the
parties in the dearest possible language in order to keep the evidence of those
intentions in writing. The first
duly d a draftsman, therefore, is to have a clean conception of what the intentions

of the parties are and then
to examine how far their wished can be carried out without contravening the
provisions of law for this he
must have a sound knowledge of laws. This will also enable him to find out the
facts from the parties which
are necessary for drafting a proper which are necessary for drafting a proper deed.
Nothing should be
inserted or omitted for which there is no satisfactory reason. Only material facts
should be stated. All facts
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are material, the statement of which is essential to the validity of the transaction.
Conclusions or inferences
of law or facts should be avoided. It is a common error of unskilled draftsmen to

make negative statements.
This should not be done. Thus, in stating that A and B took as tenant- in-common
it is unnecessary to add
"and not as Joint tenants". Where however, the happening of a condition

subsequent depends upon the
non-existence of a particular fact or event, a statement of the negative fact or event

becomes material. The
language of the document be clean and precise.
It is desirable to use technical expressions which have acquired a clear meaning

and to avoid unusual
words and expressions which cause confusion. Facts should, as a general rule, be
stated in chronological
order both in the recital and the operative parts.
(ii) SALE DEED
Sale of immovable property is defined in Sec. 54 of the Transfer of Property Act,

1882 as a transfer of
ownership in exchange for a price paid or promised or part paid and part promised.
Sale of goods (movable property) is defined in Sec. 4 of the Sale of Goods Act,
1930 as a contract whereby
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property in goods is actually transferred by the seller to the buyer for a price.
Price: Price is not defined in the transfer of property Act, but is defined in Sec. 2
(10) of the Sale of Goods
Act to mean the money consideration for a sale of goods. In he case of CITV.M. &
G. Stores, (AIR 1968 SC
200) the Supreme Court has held that in the absence of any definition in the
transfer of property Act, the
word 'price' used in Sec. 54 of that Act must be construed in the same sense in
Which it is used in a See A
read with Sec. 2(10) of the sale of Goods Act that is money consideration it has
further been observed by the
Supreme Court in the abovementioned case that the presence of money

consideration is an essential in a
transaction of sale and that if the consideration is an essential in a transaction of

sale and that if the
consideration is not money but some other valuable consideration the transaction
may be an exchange not
a sale. Money consideration does not necessarily mean case consideration. A

decretal amount,
outstanding debts and other monetary liabilities can be price in a sale. If no price is
paid or promised even a
registered deed does not affect a sale.

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The law does not require that the consideration should be immediately
ascertainable in money. It is
sufficient if it is ascertainable at the time when payment is made. The actual

payment of prince is not
essential to the completion of a sale. The sale is complete as soon as the sale deed
is registered even if the
payment of price is promised on a future date provided it has been ascertained or

made as certain able.
Immovable and Movable Property:
Immovable property is defined in Sec. 2 (26) of the General Clauses Act, 1897
thus:
"Immovable property" shall include land, and things attached to the earth, or
permanently fastened toanything attached to the earth.In Sec. 3 of the transfer of
property Act it is stated that for purposes of this Act, "Immovable property" does
not include standing timber, growing crops or grass. Thus, in the transfer of
property Act, "Immovable property" has a slightly restricted meaning.Movable
property is defined in Sec. 2 (30) of the General clause Act to mean property of
every description
except immovable property. The Sale of Goods Act, does not define movable
property but defines "goods"
to mean every kind a movable stock and shares, growing crops, grass and things
attached to or forming
part of the land which are agreed to be served before sale or under the contract of
sale.
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Intangible Property: The words 'tangible' means something that can be touched,
i.e., a material object. All
abstract right are incapable of being touched and are hence intangible. Some
examples of intangible
property are good will of business, chooses in action, mortgagee rights, lessee
rights and the interest of a
partner in a partnership.
What may be Transferred or Sold: Generally, the right to property includes the
right to transfer it to
another person. Sec. 6 of the transfer of property Act provides that property of any
kind may be transferred,
except as provided buy this Act or by any other low for the time being in force. To
this rule clauses (a) to (i) of
Sec. 6 constitute exceptions. These clauses read:
a. The chance of an heir-apparent succeeding to an estate, the chance of a relation

obtaining a legacy
on the death of a kinsman or any other mere possibility of a like nature, cannot be
transferred
b. A mere right of reentry for breach of a condition subsequent cannot be

transferred to anyone except
the owner of the property affected thereby'

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c. An easement cannot be transferred apart from the dominant heritage.
d. An interest in property restricted in its enjoyment to the owner personally cannot

be transferred by
him.
(i) A right to further maintenance, in whatsoever manner arising, secured or

determined, cannot be
transferred.
e. A mere right to sue cannot be transferred.
f. A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it
has be become payable.
g. Stipends allowed to military, naval, air force and civil pensioners of the
government and political
pensions cannot be transferred.
h. No. transfer can be made.
b) Insofar as it is opposed to the nature of the interest affected thereby, or
c) For an unlawful objected or consideration within the meaning of section 23 of

the Indian contract
Act, 1872, or
d) To a person legally disqualified to be transferee.

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i) Nothing in this shall be deemed to authorize a tenant having an un transferable

right of occupancy,
the farmer of and estate in respect of which default has been made in paying
revenue, or the lessee
of an estate under the management of a court of wards, to assign his interest as

such tenant, former
or lessee.
Persons Competent to Transfer:
see. 7 at the Transfer of Property Act deals with the competency to be a transfer.
The transfer must be:
(i) Competent to contract, and
(ii) Have title to the property, or authority to transfer if not his own.
Who is competent to contract is laid down in Sec. 110f the contract Act, Sec. 11,
reads:
Every person is competent to contract who is of the age of majority according to

the law to which he is
subject, and who is of sound mind, and is not disqualified from contracting by any
law to which he is subject.
Consequences of Transfer and Rights and Liabilities of Buyer and Seller:
Section 8 lays down the consequences which follow from the transfer of property.
All interests which the
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transferor is capable of passing passes forthwith to the transferee, if the property is

land, the easements
annexed, the rents and profits accruing after the transfer and all things attached to
the earth pass to the
transferee and if the property is machinery attached to the earth, the movable parts
thereof. In the case of a
house, the casements annexed to it. The rent the locks, keys, bars, doors, windows
and all other things
provided for permanent use there in pass to the transferee. It the property is a debt
or other actionable
claim, the securities therefore but not arrears of interest accrued before the transfer.
And if the property is
money or other property yielding income, the interest or income accruing after the
transfer passes to the
transferee. But it is open to the parties to provide, expressly or by necessary

implication that consequences
other than those mentioned above will flow from the transfer.
The rights and liabilities of the buyer and seller are set out in detail in section 55 of
the transfer of property
Act. These conditions are implied in every transfer and it is not necessary to
mention them in the deed of
transfer. But it is open to the parties, by agreement, to supplement these or to vary

them or anyone or more
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of. When this is done specific mention must be made in the deed of the added
condition or of the varied
condition.
Unlawful Conditions which may not be Included in Deeds of Transfer:
Sec. 10 makes void a condition absolutely restraining the transferee from parting
with or disposing of his
interest in the property. Sec. 11 provides that in cases of transfers of absolutE:

interest a condition
restricting the enjoyment of the property will be ignored. Sec. 12 enacts that a
condition making the interest
of the transferee determinable on insolvency or attempted transfer shall be void.

This section doesn't apply
to a condition in a lease for the benefit of the lesser. By Sec. 13 an interest created
for the benefit of an
unborn person subject to an interest created by the same transfer, shall not take
effect unless the interest
created for the benefit of the unborn person extends to the whole of the remaining
interest of the transferor
in the property. Sec. 14 lays down the rule against perpetuity.
It makes inoperative a transfer which postpones the power of alienation to one or

more lives in existence
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and the period of minority of a person who shall be in existence at the expiration of
those lives.
It is advisable for the draftsman to study these provisions before in cooperating

conditions in a deed of
transfer.
Sale how effected: Registration
There are only two modes of transfer by sale and these are: -
(1) By registered instrument, and
(2) By delivery of possession.
(i) Tangible immovable property of the value of RS.1 00 and upwards,
(ii) A reversion, and
(iii) Other intangible thing can be made only by a registered instrument. A sale of
tangible
immovable property a value less than Rs. 100/- can be made either by a registered
instrument or by
delivery of property.
Sec. 54 of the Transfer of Property Act has been amended in Utter Pradesh with
the result that a sale of
immovable property or whatever description and of whatever valuation can be

made only by a registered
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instrument. A contract for the sale of immovable property can also be made only
by a registered instrument.
Form and Content of a Sale Deed :
A sale deed is usually executed as a deed poll by the vendor and written in the first
person. The law does not
require execution by the purchaser also. Sometimes it is executed as a deed

between the ' vendor and the
purchaser, particularly when it contains covenants binding on the purchaser.
A sale deed must contain, apart from the description of the deed and the date,
details of the following
elements:
(i) The parties,
(ii) The capacity and capability of the vendor to transfer the property,
(iii) The vendor title to the property,
(iv) The property and its capability of being transferred,
(v) The encumbrances and charges, if any, upon the property and whether the sale
is subject to the
encumbrance and charges, and whether any money was being left with the
purchaser to payoff the
encumbrance and charges.

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(vi) The price settled, how and when paid or to be paid, (earnest money if paid to
be set-off).
(vii) The other terms agreed upon (the implied terms and conditions set out in
section 55 of the Transfer
of Property Act. need not be mentioned unless there is a variation in any of them).
(viii) Delivery of possession, actual or constructive.
Though not so required by any law, a sale deed is usually attested by two
witnesses.
Sale and agreement to sell movable goods may be made either in writing, or by
word of mouth or partly in
writing and partly by word of mouth, or may be implied by the conduct of the
parties. Writing is not necessary
in any case whatever may be the nature or value of the property. An agreement to
sell is generally drawn up
in writing when the property is or large value or it is not in existence at the time of
the agreement.
Stamp Duty:
Stamp duty in a sale deed is chargeable under Art. 23 schedule I of the Stamp Act.
Transfers covered by Art
62 and assignment of copy right under the copy right Act, 1957 are not covered by
this article. The duty
chargeable is advalorem.
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Effect of Non-registration :
If a sale deed which is required to be registered, there is no transfer and property

does not pass. This is so
even if the sale deed is executed in respect of tangible immovable property of

value less than Rs.100
though the sale is not required to be effected by a registered instrument, but if such
a sale deed is
accompanied by delivery of possession the sale would be effective in spite of non-

registration. An
unregistered sale deed maybe used as evidence of the character of possession.

Twelve years possession
under an unregistered sale deed of immovable property, of whatever value will

create title by adverse
possession.
Students can draft the sale deed with the help of different books of conveyancing
(iii) MORTGAGE DEED
Definition of Mortgage: The Transfer of Property Act, 1882, Sec. 58, defines a
mortgage. A mortgage is :
(a) The transfer of an interest,
(b) In specific immovable property.

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(c) For the purpose of securing.
(i) The payment of money advanced or to be advanced by way of loan, or
(ii) An existing or future debt, or
(iii) The performance of an engagement which may give rise to pecuniary liability.
The transfer of an interest in immovable property must, in order to Constitute

institute a mortgage, before
one of the purposes mentioned on (c) above. Not only rights of ownership but other
interest in immovable
property can be mortgage, like lessee's rights, mortgaged, rights and mortgage's
rights. A mortgage by the
owner is known as a mortgage of proprietary rights, of mortgager's rights as

mortgage of equity of
redemption or subsequent mortgage and of mortgage rights as sub-mortgage.
Transfer of an Interest
These words are to be contrasted with the words "transfer of ownership" used in
the definition of sale in
section 54. In a sale all the rights of ownership, which the transferor has, pass to
the transferee. In a
mortgage out of the bundle of tights which constitute ownership, some are
transferred to the mortgagee and
some remain vested in the mortgagor. The rights remaining with the mortgagor
(also called equity of
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redemption) can again be transferred.
Specific Immovable Property
The word "specific" shows that the description of the immovable property should
not only be free from
ambiguity and uncertainty, but that it should be specific as distinguished from

general. The description must
at least be sufficient to identify the property. The ruses laid down in Sec. 21 and 22
Registration Act for
description of property must be followed. A proper description of the property is

necessary to create a
mortgage and for its registration.
Securing payment of money advanced or to be advanced by way of loan a

mortgage maybe exacted to
secure a loan of money already taken or to secure a future loan. A "security",

speaking generally, is anything
that makes the money more assured in its payment or more readily recoverable. It
is the assurance in its
payment or ready recoverability that constitutes a particular thing a security for the
debt. A mortgage may be
executed for the purpose of providing a security for the repayment of a loan
already taken or for a loan to be
taken in future. A mortgage may not only be made for a specific sum but to
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secure a current account . between the parties up to a limit named. It is sufficient if

the money is left at the
mortgager's disposal in a bank deposit
Securing an Existing or Future Debt:
A mortgage may be made as security for the payment of a present debt or for the
payment of a debt that may
be incurred in future. A mortgage may be made to secure the unpaid price of a

house purchased. A future
debt may be a contingent liability, e.g. to secure the payment of the respondent's
costs in appeal. A security
bond given to an officer of the court to secure an amount that may be decreed or
ordered by the court is a
mortgage to secure a future debt.
Securing the Performance of An Engagement:
The word "engagement" means a contract and the qualification "as may give dse to
pecuniary liability"
means a contract the fulfillment or non fulfillment of which may result in a liability
to pay money. In other
words it contemplates a liability to pay money arising out of a contract. It includes

cases in which there is a
legal obligation to pay damages or to pay for the value of improvements due to a
person who is to continue
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in possession of the land.
Kind of Mortgages:
Section 58 of the transfer of property Act enumerates six kinds of mortgages.
(i) Simple Mortgage: the salient features are:
(a) Mortgager under takes personal liability for repayment.
(b) No possession of mortgaged property is delivered.
(c) On mortgager's default in making payment mortgagee is entitled to cause

mortgaged
property to be sold.
(d) There is no foreclosure of the mortgaged property.
(e) No power of sale out of court. Power to sell mortgaged property is only
obtained on a decree
for sale being obtained.
(f) The mortgage must be effected by a registered deed even if the consideration is
below Rs.
100.
(ii) Mortgage by Conditional Sale: the salient features
(a) The mortgage ostensibly sells the mortgaged property.
(b) The stipulation being that the sale shall be absolute in default of payment by a
particular
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date or that the sale shall be void on payment by a particular date and the property
retransferred.
(c) The remedy of he mortgage is by foreclosure and not by sale.
(d) The mortgage must be by registered deed if the consideration is Rs. 100 or
more. If the
consideration is less than Rs. 100 possession is necessary.
(e) The transaction must be embodied in a single deed.
(iii) Usufructuary Mortgage: the salient features are:
(a) There is delivery of possession of the mortgage property to the mortgagee.
(b) The property remains in the possession of the mortgagee till full repayment.
(c) The profit of the property is appropriated by the mortgagee towards liquidation
of the
advance.
(d) The property is returned when the amount due is personally paid or is
discharged by rent
and profits received.
(e) There is no remedy by sale or foreclosure.
(f) The mortgage must be affected by a deed registered if the consideration is Rs.
100;
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registration is optional but delivery of property is essential.
(iv) English mortgage: the salient features are:
(a) The mortgage property is transferred absolutely by the mortgage to the

mortgagee.
(b) There is a personal covenant to repay on a certain date.
(c) There is a stipulation for its retransfer in case of repayment of the loan.
(d) the remedy of the mortgagee is by sale and not by fore closure.
(e) power of sale out of court is conferred on certain persons under some
circumstances (Sec.
69)
(v) mortgage by deposit of title deeds: the salient features are:
(a) Such a mortgage is only created in the towns of Calcutta, Chennai, and Mumbai
in any other
town which the state Government may by notification in the official Gazette,
specify. A
number of towns and cities have been specified.
(b) It is created by delivery of the material title deeds in respect of the mortgaged
property to the
mortgagee; no delivery of possession of property takes place.
(c) It is made only for the purposes of securing a past debt or advance or to cover
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advances.
(d) No registration is necessary even if there is a writing recording the deposit.
(e) The remedy is by sale and not by fore closure.
(f) All the provisions relating to a simple mortgage apply to an equitable mortgage
(vi) Anomalous mortgagee: The salient features are:
(a) A mortgage which is not a mortgage of the 5 kinds enumerated above is an

anomalous
mortgage.
(b) It may be a combination of two or more kinds of mortgages
(c) The remedy is by sale or by foreclosure depending on he terms of the deed.
(d) It the mortgage is foe a consideration of Rs. 100 or more the deed must be
registered, if
below Rs. 100 delivery of possession is essential, registration is optional.
Mortgage Registration:
(i) A simple mortgage can, whatever be the amount secured, only be made by a
written
instrument signed by the mortgagor attested by at least two witnesses and

registered.
(ii) For a mortgage by deposit of title deeds no formalities are prescribed. It can be
either oral or
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written. When such a mortgage so reduced to writing it must be attested by at least

two
witnesses and registered if the money secured is a Rs. 100 or more. But a mere
memorandum of an oral mortgage does not require registration.
(iii) The other four kinds of mortgage, if the amount secured is Rs. 100 or above
can only be
effected by a written instrument signed by the mortgage, attested by at least two

witnesses
and registered. If the amount secured is less than RS.1 00 the mortgages can be
effected
either by a written instrument signed by the mortgagor, attested by at least two

witnesses
and registered or by delivery of the property.
A mortgage may be drafted either as added poll (unilateral document) exacted by

the mortgagor and the
mortgagee.
Right of Redemption:
The mortgager's right of redemption after the date fixed for payment is called the
equity of redemption. The
mortgagor who has parted with some rights of ownership has the right to resume
what he has parted with.
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The right cannot be fettered or taken away by any term or condition in the
mortgage deed.
The right of redemption arises when the principal money secured by the mortgage
has become due and
may be exercised at any time thereafter, subject of the law of limitation. It is,
however, permissible for the
parties to make a provision that the mortgagor may discharge the debt within a
specified period and take
back the property. The right is exercised by the payment or tender to the mortgagee
at the proper time and
at the proper place of the mortgage money.
The right of redemption is regulated by sec. 60 of the transfer of property Act, and
the right of usufructuary
mortgagor to recover possessor is governed by Sec. 62.
Right of foreclosure:
The right of foreclosure is a right of the mortgagee to obtain a decree absolutely.

Debarring the mortgagor
from exercising his right to redeem the property. The result of the passing of a
decree for foreclosure is that
the mortgaged property vests in the mortgagee and the mortgagor cannot recover it.
But this right can only
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be exercised in the case of a mortgage by conditional sale and in an anomalous

mortgage the terms
whereof provide for foreclosure.
Another right which a mortgagee has is applying to the court for a decree for the
sale of the mortgage
property to satisfy the amount secured by the mortgage. A usufructuary mortgagee

and a mortgagee by
conditional sale cannot exercise this right.
These rights can be exercised, in the absence of a contract to the contrary after the
mortgage money has
become due and before a decree for redemption had been passed or the mortgage
money has been paid or
deposited (Sec. 67).
Mortgagee's right to sue for mortgage money: -
While Sec. 67 provides remedies against the mortgaged property Sec. 68 provides
a personal remedy
against the mortgager. The circumstances in which a suit for the mortgage money
can be filed are
enumerated in Sec. 68.
Stamp Duty on mortgager of immovable property - stamp duty is chargeable under

Art. 40 schedule I of the
stamp Act.
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(iv) LEASE DEED
A lease of immovable property is defined in Sec. 105, of the Transfer Act. 1882. It
consists of the
following elements:
(i) There must be a transferor (lessor) and a transferee (lessor) who both agree to
the
transaction;
(ii) The lease must be a for a certain time, express or implied, or in perpetuity
(period or
duration),
(iii) There must be transfer of the right to enjoy immovable property
(iv) The transaction must be in consideration of a price paid or promised

(premium, salami or
nazrana);
(v) In consideration of money a share of crops, service or any other thing of value
to be
rendered periodically or on specified occasions to the transferor by the transferee

(rent).
Essentials of lease: - The essential elements of a lease are:
(i) The lessor must have the capacity and the right to granta lease. Under Sec. 7 of
the transfer of property
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Act every person competent to contract and entitled to transferable property not his
own, is competent to
transfer such property. Though a minor cannot, his guardian can grant a lease. The
manager of a lunatic,
the karta of a joint Hindu family, can grant a lease. But one out of several
Conveyancing-shares cannot
grant a lease unless he is authorized by all the Co-sharers to do so;
(ii) The immovable property should be transferable;
(iii) The commencement date and the period or duration of the lease;
(iv) The premium to be fixed,
(v) The rent payable and the time when it is to be paid.
Duration and commencement of lease: -
The commencement of a lease must be certain in the first instance, or capable of

being ascertained with
certain after wards, so that both the time when it begins and the time when it
begins and the time when it
ends is fixed.
It is open to the parties to fix the duration or period of the lease. They can even
make a perpetual lease.
Where land is let out for building purpose and no period is fixed the presumption is
that it was intended to
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create a permanent tenancy. (AIIR 1962 SC 413) Sec. 106 of T P Act provides that
in the absence of a
contract or local law or usage to the contrary for agricultural or manufacturing

purposes shall be deemed to
be lease from year to year, and a lease for any other purpose shall be deemed to be
a lease from month to
month.
Sometimes a lease contains a renewal clause. The renewal May be at the option of
the lessor or the lessee
or of both. The option does not affect the duration. of the lessee or of both. The
option does not affect the
duration of the lease because until exercise it creates no interest in the added ferm.
Premium and rent: -
A lease may be granted on payment of premium alone or rent alone or on payment

of both premium and
rent. A "zarpeshgi lease" is a lease for a premium. Though in some cases premium
in the form of pugree or
salami or nazrana is also taken in addition to rent, most of the lease are for rent
alone. Premium can also be
paid in installments.
In a month-to month tenancy rent is usually payable monthly. But even in a yearly
tenancy the parties may
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stipulate payment of rent monthly. This can be done even in cases of tenancies for
fixed periods.
Right and liabilities of the lessor: -
In the absence of a contract or local usage to the contrary the lessor possesses and
is subject to the
liabilities mentioned below;
(a) The lessor is bound to disclose to the property, with reference to its intended
use, of which the
former is and the latter is not aware and which the latter could not with ordinary
care discover;
(b) The lessor is bound on the lessee's request to· put him in possession of the
property.
(c) The lessor shall be deemed to contract with the lessee that, if the latter pays the
rent reserved by the
lease and performs the contract binding on the lessee he may hold the property
during the time
timed by the lease without interruption.
The benefit of such contract shall be annexed to and go with the lessee's interest as
such, and may be
enforced by every person in whom that interest is for the whore or any part there of
from time to time vested.
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These will be implied in every lease unless provided otherwise. It is not necessary
to set them out in the
lease deed.
Rights and liabilities of the lessee:-
In the absence of a contract or local usage to the contrary the lessee possesses and
is subject to the
liabilities mentioned below:
a) If during the continuance of the lease any accession is made to the property such
accession
(subject to the law relating to alluvion for the time being in force. Shall to be
comprised in the lease;
b) if by fire, tempest or flood, or violence of any army or of a mob, or other

irresistible force, any material
part of the property be wholly destroyed or rendered substantially and permanently

unfit for the purpose
for which it was let, the lease shall at the option of the lessee, be void;
Provided that, if the injury be occasioned by the wrongful act or default of the
lessee, he shall not be
entitled to avail himself of this benefit of this provision;
c) If the lessor neglects to make within a reasonable time after notice, any repairs
which he is bound to
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make to the property, the lessee may made the same himself; and deduct the
expense of such repairs
with interest form the rent, or otherwise recover it from the lessor;
d) If the lessor neglects to make and payment which he is not made by him, or
recoverable form the
lessee or against the property, the lessee may make such payment himself, and
deduct it with interest
form the rent, or otherwise recover it from the lessor;
e) The lessee may even after the determination of the lease remove, at any time
whilst he is in
possession of the property leased, but not after-wards, all things which he has
attached to the earth;
provided he leaves the property in the state in which he received it;
f) When a lessee he or his legal representative is· entitled to all the crops planted or
sown by the
Lessee and growing upon the property when the lease determines, and to free
ingress and egress
together carry them;
g) The lessee may transfer absolutely by way of mortgage or sublease the whole or
any part of his
interesting the property, and any transferee of such interest or part may again
transfer it. The lessee
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shall not by reason only of such transfer, cease to be subject to any of the liabilities
attaching to the
lease;
Nothing in this clause shall be deemed to authorize a tenant having an un

transferable right of
occupancy, the farmer of an estate in respect of which default has been made in
paying revenue, or the
lessee of an estate under the management of a court of words, assign his interest as
such tenant,
farmer or lessee;
h) The lessee is bound to disclose to the lessor any fact as to the nature or extent of
tile interest which
the lessee is about to take of which the lessee is, and the lessor is not, aware, and
which materially
increased the value of such interest;
i) The lessee is bound to payor tender, at the proper time and place, the premium or
rent to the lessor
or his agent in this behalf;
j) The lessee is bound to keep, and on the termination of the lease to restore, the
property in as good a
condition as it was at the time when he was put in possession, subject only to the
changes caused by
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reasonable wear and tear or irresistible force, and to allow the lessor and his agent
at all reasonable
times during the term to enter upon the property and to allow the lessor and his
agents, at all reasonable
times during the term, to enter upon the property and inspect the condition there of
and give or leave
notice of any defect in such condition, and when such defect has been caused by
any act or default on
the part of he lessee, his servant or agents, he is bound to Take it good within three
months after such
notice has been given or left;
k) If the lessee becomes aware of any proceeding to recover the property or any
part thereof or of any
encroachment made upon, or any interference with the lessor's rights concerning
such property he is
bound to give, with reasonable diligence, notice thereof to the lessor;
l) The lessee may use the property and its products ((if any) as a person of ordinary
prudence would
use them if they were his own, but he must not use, or permit another to use, the
property for a purpose
other than that for which it was leased, or fell or sell timber, pull down or damage
buildings belonging to
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the lessor, or work mines or quarries not open when the lease was granted or
commit any other act
which is destructive or permanently injurious thereto;
m) He must not without the lessor's consent, erect on the property any permanent
structure, except for
agriculture purposes;
n) On the determination of the lease, the lessee is bound to put the lessor into
possession of the
property.
Lessee holding over
Where a person who has been in possession under a lawful lease continues in
possession after the lease
has been determined without the consent of the lessor he is said to be a tenant at
sufferance. In such a case
the possession was rightful in its inception but wrongful in its continuance; whist
the possession of a
trespasser is wrongful both in its inception and in its continuance. Such a tenant
can be evicted without
giving notice to quit.
If a lessee remains in possession after determination of the lease and the lessor
accepts rent from him or
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otherwise assents to his continuing on possession the lease is renewed from year to
year or from month to
month according to the purpose for which the property was leased. The tenant is
called a tenant holding
over.
A tenancy at will is one which is terminable at the will either of the landlord or of
the tenant. It can be created
by express agreement
Leases How Made : Registration
A lease of immovable property -
(a) from year to year, Of
(b) For any term exceeding one year, or
(c) Reserving a yearly rent,
Can be made only by a registered instrument. All other leases of immovable

property may by made by a
registered instrument or by oral agreement accompanied by delivery of possession.

The lease deed is to be
executed both by the lessor and the lessee. A lease should be drafted as a deed
between the landlord
(lessor) and the tenant (lessee) .
Determination of leases
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A lease of immovable property determines
(a) By efflux of the time limited thereby;
(b) Where such time is limited conditionally on the happening of some event, by
the happening of such
event;
(c) Where the interest of the lessor in the property terminates on; or his power to
dispose of the same
extends only to the happening of any event, by the happening of such event;
(d) In case the interests of the lessee and the lessor in the whole of the property
become vested at the
same time in one person in the same right
(e) By express surrender, that is to say in case the lessee yields up his interest
under the lease to the
lessor, by mutual agreement between them;
(f) By implied surrender;
(g) By for feature, that is to say
(1) In case the lessee breaks an express condition which provides that on breach
there of the lessor
may re-enter, or
(2) In case the lessee renounces his character as such by setting up a title in a third
person or by
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claiming title in himself;
(3) The lessee is adjudicated an insolvent and the lease provides that the lessor may
re-enter on the
happening of such event; and in any of these gives notice in writing to the lessee of
his intention to
determine the lease;
(h) On the expiration of a notice to determine the lease, or to quit, the property
leased, duly given by one
party to the other.
Notice to Quit : Waiver of Notice
A lease from year to year can be terminated either by the lessor or the lessee by
giving to the other six
months notice expiring with the end of the year of the tenancy. And a lease from
month to month can be
terminated either by the lessor or the lessee by giving to the other fifteen days
notice expiring with the end of
the month of tenancy. Simple notice to quit or the expiry of six months in the case
of tenancies from year to
year and 30 days in the case of tenancies from month to month, from the date of
the receipt of the notice, is
sufficient in U.P.
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The notice must be in writing, signed by or on behalf of the person giving it, and
either be sent by post to the
party who is intended to be bound by it or be tendered or delivered personally to

such party or to one or his
family or servants at his residence, or (if such tender or delivery is not practicable)
affixed to a conspicuous
part of the property.
A notice to quit is waived, with the express or implied consent of the person to
whom it is given, by any act on
the part of the person giving it showing an intention to treat the lease as subsisting.
A typical case of waiver
is acceptance of rent for a period after the expiry of the notice.
Effect of rent and eviction control legislation:
In every state there is legislation affecting the rights of lessors and lessees of
residential and commercial
buildings. They override the provisions of the Transfer of Property Act. Legislation
in one state differs from
that in another, but all such legislations control and restrict the rent payable and the
grounds on which a
tenant may evicted. Some enactments regulated duration ofa lease, some forbid the
payment of premium
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and some even control the letting out to the extent that this function is exercised by
the authorities. It is
desirable to study the local rent control and evection legislation before entering
into a transaction of lease
and before taking any action on the basis of a lease.
Execution and stamp duty -
Leases can either be oral or written and registered. A lease which is permitted to be
made by oral
agreement will be valid only if accompanied by delivery of possession it such a

lease is reduced to writing it
must be registered and delivery of possession will not validate it. An unregistered
written lease is a not valid.
A written registered leases should be attested by at least to witnesses.
Stamp duty on a deed of lease is chargeable under Art. 35, schedule I of the Stamp
Act. The amendments
made by the relevant state legislation may be studied to find out the actual amount
of stamp duty payable.
For drafting of lease deed students refer book on drafting of Conveyancing.
(V) GIFT DEED
Section 122 of the Transfer of Property Act, 1882 defines 'gift' thus:
(i) Gift is the transfer of certain existing movable or immovable property and not
of future
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property;
(ii) It must be voluntary; it should not be induced by coercion, undue influence,

fraud or
misrepresentation;
(iii) It should be without consideration: it can be for natural love and affection or
for past
consideration. it cannot be for natural love and affection or for past consideration,
it
cannot be for present or future consideration;
(iv) It must be accepted by the donee. It may be pointed out that the definition of
gift in the Gift
Tax Act.1958, includes a transfer for inadequate consideration, a release, a

discharge
and surrender. But this definition is for the purposes of gift tax only.
Persons Capable of Making Gifts :
A person who is competent to contract can make a valid gift. A minor or a lunatic
cannot make a gift. The
donor must also have a disposing power over the property sought to be gifted.
Who can be Donee: The donee must be on existing person. He must be an

ascertained or ascertainable
person. A gift can be made in favour of a minor or a Hindu idol. But a gift in
favour of the public, to dharma or
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for worship of God is void for vagueness of donee. A gift can be made in favour of
a legal person. It can even
be made in favour of government.
Acceptance of Gift: Acceptance of a gift be in behalf of the donee is essential to

the validity of a gift. The
acceptance must be made during the lifetime of the donor and while he is still
capable of giving. If either the
doner or the donee dies before acceptance the gift is void the acceptance can be
made either orally or by
conduct (e.g., by taking possession of the property) or in writing.
The best and the safest course is to join the donee as a party to the deed and to state
the acceptance of the
gift in the deed itself. Or a separate endorsement may be made by the donee on the
deed accepting the gift
and signed by him
A gift may be accepted on behalf of a minor by his guardian and on behalf of an

idol by its manager. The
donee's receiving the gift deed form the donor after execution thereof, and
presenting it for registration and
getting its registered, amounts to acceptance of the gift.
Gifts under Hindu Law:

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The right given and the restrictions imposed by Hindu law in respect of the powers
of a Hindu to make a gift
still apply but the made of making a gift is governed by the provisions of chapter
VII of the Transfer of
Property Act. Thus a gift by a Hindu of his separate and self-acquired immovable
property can only be made
in the manner prescribed by Sec. 123 of the transfer of property Act, and it has to
be accepted by the donee.
Gift under Mohammedan Law
The Mohammedan law of gifts is unaffected by the provisions of the Transfer of

Property Act. Since
Mohammedan law permits an oral gift even with respect to a gift of immobile
property a registered
instrument is not necessary for such a gift by a Mohammedan under Mohammedan

law the essentials of a
gift are a declaration of gift by the doner, the acceptance of the gift b Y the donee
and delivery of possession
such as the subject of 'the gift is susceptible of even a registered deed of gift is
ineffectual under
Mohammedan law if it is not accompanied by delivery of possession.
Under Mohammedan law a Mohammedan can make a valid gift to a Hindu or any
other person and such a
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gift is governed by the law of the donor.
Gift How Made
The mode of making gifts is prescribed by Sec. 123 of the transfer of property, can
only be made by a written
instrument signed by the donor, attested by at least two attested. A gift of movable
property may be made
either by a written, attested and registered document or by delivery of the property

to the donee.
It is permissible to make conditional gifts. The donor and donee may agree that on
the happening of any
specified event which does not depend on the will of he donor a gift shall stand
revoked. A gift which the
parties agree shall be revocable at the will of the donor. A gift can be made which
is effective only during the
lifetime of the donee. A donor can reserve a right in himself for life to take the
profits of the property gifted or
he may also, while making an outright gift, impose a condition that the donee shall
maintain him. A gift may
also be made for a specific purpose and on the failure of that purpose the property
reverts to the donor.
Revocation of Gifts
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A gift once duly made and accepted cannot be revoked. A conditional gift which
provides that it shall stand
revoked on the happening of a specified event which does not depend on the will
of the donor is revoked
when that event happens. A gift may also be revoked if it has been obtained by
coercion, undue influence,
fraud or misrepresentation. A gift for specific purpose can be revoked on the

failure of that purpose.
Stamp Duty
An instrument of gift is chargeable with stamp duty under Art. 33 of schedule I of

the Stamp Act. The duty is
the same as is payable on a conveyance which is for a consideration equal to the

value of the gifted
property. A conveyance is charged under article 23.
(VI) PROMISSORY NOTE
A promissory not is an instrument on writing, not being a bank note or a currency

note, containing an
unconditional undertaking, signed by the maker, to pay a certain sum of money

only to, or to the order of, a
certain person, or to the bearer of the instrument. The essential requisites of a

promissory note are:
(i) It must be in writing signed by the maker;

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(ii) The promise to pay must be unconditional;
(iii) The sum of money to be paid must be certain;
(iv) The drawer must be a certain person, and
(v) The drawee must be a certain person.
It may provide for payment on demand, or within a fixed time or on a specified

date. Where it is silent on this
point, it is payable on demand.
Stamp duty is payable under Art. 49, schedule I, stamp Act. Registration is not
required.
FORM OF PROMISSORY, NOTE
ON DEMAND I ………….. aged about ………….. years, son of …………..,

resident of…………..,
promise to pay to ………….., aged about …………..years, son of resident of

………….., or order the
………….. sum of Rupees ………….., (Rs …………..) only, with interest at

…………..% per annum until
repayment for value received.
DATED AND DELIVERED at …………… this the …………….. day of

………..20………….
(VII) POWER OF ATTORNEY

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A power of attorney is a document whereby one or more persons give authority to

one or more persons to
act in his or their place. It is defined in Sec. 2 (2) of the Stamp Act thus.
"Power of attorney" includes any instrument (not chargeable with a fee under a law
relating to court fees for
the time being in force) empowering a specified person to act executing it.
It is a delegation of authority in writing by which one person empowers another to

act on his behalf. The
giver of the authority is called the 'donor' and the recipient is called the 'donee'. If
the appointment is made
for specified act or acts the deed is called "special power of attorney" and if it is
made generally for certain
acts, it is called "general power of attorney".
A power of attorney can be executed by any person who is able to contract.
A power of attorney can be executed by or in favour of two or more persons. When

executed in favour of
more than one person it is desirable to state whether the donee's will act only
jointly or severally and jointly.
Authority of donee
So long as the donee acts within the powers delegated to him, his acts will be
deemed to be the acts of the
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donor and will bind him. Sec. 2 of the power of attorney Act, 1882 (as amended in
1982) provides;
The donee of a power of attorney may, if he thinks fit, execute or do any

instrument or thing in and with his
own name and signature, and his own seal, where sealing is required, by the
authority of the donor of the
power and every instrument and thing so executed and every instrument and thing
so executed and done,
shall be as effectual in law as if it had been exacted or done by the dinee of the
power in the name, and with
the signature and seal, of the donor thereof.
Normally after the revocation of the power of attorney the donee ceases to be an
agent of the donor. But
Sec. 3 protects persons making payment and doing acts in pursuance of the power
of attorney even after
the death etc. of the donor in certain circumstances. This section reads:
Normally after the revocation of the power of attorney the donee ceases to be an
agent of the donor. But
Sec. 3 protects persons making payments and doing act in pursuance of the power
of attorney even after
the death etc. of the donor in certain circumstances.
This Sec. reads:

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Any person making or doing any payment or act in good faith in pursuance of a
power of attorney, shall not
be liable on respect of the payment or act, by reasons that before the payment or
act, the donor of he power
had died, or become of unsound mind, or bankrupt or insolvent, or had revoked the
power, if the fact of
death, unsoundness of mind, bankruptcy, insolvency or revocation was not at the

time of the payment or
act, known to the person making or doing the same.
Execution, attestation and authentication
A power of attorney has to be in writing signed by the donor. It is executed in the

form of a deed poll, a
unilateral document, usually in the first person.
No law requires a power of attorney to be attested but it is useful to have it attested

by witnesses.
Though no law requires a power of attorney to be authenticated it is desirable to

have this done so as to
avail of the presumption under sec. 85 of the Evidence Act. This section provides:
The court shall presume that every document purporting to be a power of attorney,
and to have been
executed before, and authenticated by a Notary public, or any Court, Judge,

Magistrate Indian Counsul or
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Vice Counsul or representative of the contra Govt., was so executed and

authenticated.
Stamp duty and Registration
Stamp duty on a power of attorney is payable under Article 48 of he stamp Act. A

deed canceling a power of
attorney is chargeable to duty under Article 17.
A power of attorney is not compulsorily registrable. But by virtue of the provisions

of Sec. 32 and 33 of the Evidence Act, a power of attorney specifically presenting
a document for registration must be itself registered.
Deposit in High Court or District court
Section 4 of the Power of Attorney Act as amended in 1982 provides that: -
(a) An instrument creating a power of attorney, its executing being verified by

affidavit, statutory declaration
or other sufficient evidence may, with the affidavit or declaration, if any be

deposited in the High Court or
District court within the local limits of whose jurisdiction the instrument may be.
(b) A certified copy of an instrument so deposited shall, without further proof, be

sufficient evidence of the
contents of the instrument and of the deposit there of in the High Court or District
Court.
(viii) WILL
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The law relating to wills is contained in part VI of the Indian Succession Act,
1925. But this is not applicable
to wills made by Mohammedans. They are governed by the Mohammedans Law

under which wills maybe
made orally or in writing and formalities of signatures, attesting witnesses etc. are
not required to be
followed. There is however, nothing to prevent a Mohammedans from execution a

written will duly singed
and attested as required by the a Act. All the provisions of part VI do not apply to
Hindus, Buddhists, Sikhs
and Jains. The provisions of this part which apply to Hindus, Buddhists, Sikhs and
Jains are enumerated in
schedule III to the Act. But by virtue of Sec. 30 of the Hindu Succession Act,
1956, a Hindu, Buddhist, Sikh or
Jain may execute a will in accordance with the provisions of the Indian Succession
Act.
"Will" is defined in Sec. 2 (h) of the Act to mean the legal declaration of the
intention of the testator with
respect to his property which he desires to be carried into effect after his death. The
fundamental idea of a
will is that the testator should thereby dispose of his property or such part of it as
his personal law permits
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him to bequeath by will, in such a manner as seems to him best. The two essential
characteristics of a will
are that:
(1) It must be intended to come into effect after the death of the testator, and
(2) It must be revocable by the testator at any time.
Though usually wills are made for disposing property they can also be made for
appointing executors, for
creating trusts and for appointing testamentary guardians of minor children.
"Codicil" is defined in section 2(b) of he Act to mean an instrument made in

relation to a will, and explaining,
altering or cadding to its dispositions, and shall be deemed to from part of the will
when the alteration and
additions are minor a codicil is the proper thing but if substantial changes are to be
made in the will it is
desirable to execute a fresh will and to revoke the earlier one. If there is
inconsistency between the will and
the codicil the codicil will prevail. A codicil requires the same formalities as a will.
A will or any part of a will, the making of which has been caused by fraud or
coercion which takes aw3.Y the
free agency of the testator, is void.(Sec. 61)
Privileged and unprivileged wills:

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A privileged will is one which is made by a solider employed in an expedition or in

actual warfare, or an
airman so employed or engaged or a mariner at sea. He must have completed 'the

age if eighteen years. A
will executed by persons other than these is known as an unprivileged will.
A privileged will can be oral or in writing. The formalities prescribed for

unprivileged wills like signature and
attestation do not apply to privileged wills. They are governed by rules set out in
Sec. 65 (2) of he Indian
Succession Act. The provision s relating to privileged wills in the Act. apply to
Mohammedans, Hindus,
Buddhists, Sikhs and Jains also.
The following requirements have to be complied with in executing an unprivileged

will.
(a) The testator shall sign or affix his mark to the will, or it shall be signed by some
other person on his
presence and by his direction.
(b) The signature or mark of the testator, or the signature of the person signing for
him, shall be so
placed that it shall appear that it was intended thereby to give effect to the writing
as a will.
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(c) The will shall be attested by two or more witnesses, each of whom has seen the
testator sign or affix his
mark to the will or has seen some other person sign the will, in the presence of and
by the direction of the
testator, or has received form the testator a personal acknowledgment of his

signature or mark, or the
witnesses shall sign the will in the presence of the testator, but it shall not be
necessary that more than are
witness should be present at the same time, and no particular form of attestation
shall be necessary.
These formalities are not applicable to wills made by Mohammedans. If the will
consists of more than one
page; each page should be signed or marked by the testator and signed by the
attesting witnesses.
No particular form of will is prescribed by law. It is not necessary that any

technical words or terms of art be
used in a will, but only that the wording be such that he intention of the testator can
be known there from
(Sec. 74) a will or bequest not expressive of any definite intention is void for
uncertainty (Sec. 89).
Capacity:- The testator must be of sound and disposing mind at the time of the
execution of his will sec 59
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says that every person of sound mind not being a minor may dispose of his
property by will.
A married woman may dispose by will any property which she could alienate by
her own act during her life.
Persons who are deaf or dumb or blind are not thereby incapacitated for making a
will if they are able to
know what they do by it.
A person who is ordinarily insane may make a will during an interval, in which he
is of sound mind,
No person can make a will while he is in such a state of mind, whether arising
form intoxication or from
illness or from any other cause that he does not know what he is doing.
Property, that can be bequeathed
All property, movable and immovable, of which the testator is owner and which is
transferable can be
disposed of by a will. Property which is legally non-transferable cannot be

bequeathed. If a person has only
a life interest in a property, he cannot make a will in respect of it.
Sec. 30 of the Hindu Succession Act, 1956, provides:
Any Hindu may dispose of by will or other testamentary disposition any property,
which is capable of being
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so disposed of by him, in accordance with the provisions of the Indian Succession

Act, 1925, or any other
law for the time being in force and applicable to Hindus.
Signature and attestation: -
The testimonium Clause (signature) and the attestation clause (witnesses) are the
most important parts of
a will. If these are not made strictly in accordance with the requirements of law it
will not be a valid will.
The testator and all the attesting witnesses must sign on every page of the will. The
attesting witnesses
need not know the contents of the will. They ate only witnesses to the signature or
mark of the testator. The
scribe of a will can be a competent attesting witness if he signs as an attesting

witness. "Executor" is
defined in Sec. 2 C. of the Indian Succession J\ct to mean a person to whim the
execution the last will of a
deceased person, is by the testator's appointment, confide. An executor is charged

with the duty and
conferred with the power to carry out the directions contained in the will. He has to
collect and realise the
estate of the deceased pay his debts and distribute the legacies.
Stamp Duty: registration

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No stamp Duty is chargeable on a will, and registration is opt10nal. A will can be

registered by the testator in
his lifetime or by the executor or legatee after testator's death.
Sec. 42 to 46 of the Registration Act, 1908 made provisions for the deposit of
wills. Revocation of wills.
Revocation of wills
Sec. 62 of the Indian Succession Act provides that a will is liable to be revoked or
altered by the maker of it at
any time when he is. competent to dispose of his property by will. Sec. 69 enacts
that every will shall be
revoked by the marriage of the testator. Sec. 69 does not apply to wills made by
Hindus, Buddhists, Sikhs
and Janis or by Mohammedans. The mode of revocation of unprivileged wills or

codicils is laid down in Sec.
70 and that of privileged will in Sec. 72.
Probate and letters of administration
Sec. 213 of the Indian Succession Act enacts that no right as executor or enacts
that n right as executor or
legatee can be established in any court of justice, unless a court of competent

jurisdiction in India has
granted probate of the will under which the right is claimed, or has granted letters
of administration with the
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will or with a copy of an authenticated copy of the will annexed.
This Sec. applies only to wills made: -
(i) By Christians and Jews;
(ii) By Hindu, Buddhists. Sikhs and Janis Within the territories of West Bengal or
the presidency
Towns of Madras and Mumbai or in respect of immovable properties situate in

these territories, and
(iii) By parsi within the local limits of the ordinary civil jurisdiction of the High
Courts at Calcutta, Madras
and Mumbai or in respect of immovable properties situate within those limits.
It does not apply to wills made by Hindus, Buddhists, Sikhs and Jaonis out side the
territories maintained in
(ii) above in respect of immovable properties situate outside these territories. Nor
does it apply to wills made
by Parsis outside the limits mentions in (iii) above in respect of properties situate
outside those limits.
"Probate" is defined in Sec. 2 (f) to mean the copy of a will certified under the seal
of a court of competent
jurisdiction with a grant of the administration to the estate of the testator. Probate
of a will when granted
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established the will from the death of the testator, and renders valid all
intermediate acts of the executor as
such. It establishes conclusively the legal character of the person to whom the
grant is made. It is
conclusive evidence of the validity and due execution of the will and of the
testamentary capacity of the
testator Probate can be granted only to the executor appointed by the will. It cannot
be granted to a person
who is a minor or is of unsound mind, nor to any association of individuals unless

it is a company which
satisfies the conditions prescribed by rules made by the Sate Government in this
behalf. Other provisions
relating to probate will be found in Sec. 224to 227 and 276.
(IX) AGREEMENTS
Agreement and Contract
A proposal when accepted becomes a promise, and every promise and every set of
promises forming the
consideration for each other is an agreement. An agreement enforceable by law is a

contract, for a lawful
consideration and with a lawful object, and is not expressly declared by the
Contract Act, 1872 to be void. An
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agreement not enforceable in law at the option of one or more of the parties
thereto, to but not at the option
of the other or others, is a Voidable contract.
Persons Competent to contract
Every person is competent to contract:-
(i) Who is of the age of majority according to the law to which he is subject,
(ii) Who is of sound mind, and
(iii) Who is not disqualified form contracting by any law to which he is subject.
Under Sec. 3 of the Indian Majority Act, 1875 a minor becomes a major when he
attains the age of 18 years
except a minor of whose person or property or both a guardian has been appointed
by any court, who
becomes a major when he attains the age of twenty-one years. Sec. 12 of the
Contract Act, 1872 lays down
what is a sound mind for purposes of contracting.
Voidable· agreements
An agreement into which a party has entered without free consent is a contract
Voidable at the option of the
party. Two or more persons are said to consent when they agree upon the same
thing in the same sense.
Consent is said to be free when it is not caused by: -

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(i) Coercion (Sec. 15, Contract Act)
(ii) Undue influence (Sec. 16, Contract Act)
(iv) Misrepresentation (Sec. 17, Contract Act)
(v) Mistake (Sec. 20, 21 and 22 Contract Act)
Thus a contract into which a party has been induced to enter on account of
coercion, undue influence,
fraud, misrepresentation or mistake is Voidable at his instance.
Void agreements
An agreement is void:
(i) If the consideration for the object is unlawful (Sec. 24 Contract)
(ii) If it is without consideration (Sec. 25 Contract)
(iii) If it is in restraint of marriage (Sec. 26 Contract)
(iv) If it is in restraint of trade or profession (Sec. 27 Contract)
(v) If it is in restraint of legal proceedings (Sec. 28 Contract)
(vi) If its meaning is not certain or capable of being made certain (Sec. 29 Contract
Act) or
(vii) If it is by way of wager (Sec. 30)
The consideration or object of an agreement is lawful, unless: -
(i) It is forbidden by law; or

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(ii) It is of such a nature that, if permitted, it would defeat the provisions of any
law, or
(iii) Is fraudulent; or
(iv) Involves or implies injury to the person or property of another, or
(v) The court regards it as immoral or opposed to public policy.
Agreements binding on representatives
Legal representatives of parties have a right to require specific performance of a

contract or are bound by
the promise to perform the contract in the absence of a contrary intention. This
does not apply where the
obligation is personal in nature As a rule obligations under a contract cannot be

assigned except with the
consent of the promise. On the other hand, rights under a contract are assignable
unless the contract is
personal in nature or the rights are incapable of assignment either under the law or
under the agreement
between the parties. It is, however, usual to have a clause in a deed specifically
stating that the parties shall
include their executors, administrators, heirs, legal representatives and assigns.
Attestation
It is not necessary for an agreement to be attested by any witness. But agreements

are usually attested by
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one witness. Where registration is desired the agreement should be attested by two
witnesses.
Stamp Duly
The stamp duty for different kinds of agreements varies from state to state.
Agreement are covered by
Article 5 of Schedule I to the stamp Act. While drafting an agreement the

draftsman should ascertain the
proper stamp duty having regard to the changes made in the Stamp Act. In the state
where the agreement is
executed.
Registration
Agreements not relating to immovable property and agreements not creating an

interest in immovable
property are not compulsory registrable. Only agreements creating an interest in

immovable property worth
more then Rs. 100/- are required be law to be registered.
IMPORTANT QUESTIONS
Q.1. What do you mean by pleading? Discuss its fundamental rules.
Q.2. What do you mean by deed? Discuss in brief its components.
Q.3. What do you understand by cause of action?
Q.4. What do you mean by attestation?

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Q.5. What do you mean by plaintiff?
Q.6. What do you mean by interlocutory orders?
Q.7. What do you mean by Deed Poll and deed indenture? Q.8. What do you mean
by a Codicil?
Q.9. What is exparty decree?
Q.10. What do you mean by legal representative? Q.11. How can a plaint be
amended?
Q.12. What is interpleaded suit?
Q.13. What do you understand by an Affidavit?
Q.14. What is pauper suit?
Q.15. What do you mean by written statement and what are the two parts of w.s.?
Q.16. What do you mean by Conveyancing?
Q.17. Draft a plaint and ws. for specific performance of a contract for purchase of
car? Q.18. Draft a plaint
for recovery of money.
Q.19. Draft a plaint for compensation for malicious prosecution?
Q.20. Draft a petition under Art. 226 of Indian Constitution for issue of a writ of
Habeas Corpus.
Q.21. Draft a petition for divorce by mutual consent under Sec. 13 B of HM Act
1955.
Q.22. Draft a Criminal Complaint for wrongful confinement.

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Q.23. Draft a bail application on behalf of an accused arrested for the offence of
bigamy.
Q.24. Draft a sale deed for sale of Joint family property by father for a legal
necessity and antecedent debt.
Q.25. Draft a notice for payment of arrears of rent.
Q.26. Draft a special power of attorney for recovery of debt. Q.27. Draft a
promissory note.
Q.28. Draft a mortgage deed.
Q.29. Draft a petition on behalf of the wife for judicial separation on the ground of
desertion under Hindu
Marriage Act, 1955.
SUGGESTED READINGS
1. Pleading and Practice, N.S. Bindra
2. Conveyancing, Precedents & Forms, Shiva Gopal
3. Drafting of Pleadings, N.H. Jhabwala
4. Principles and Forms of Pleadings and Conveyancing, A.N. Chaturvedi
5. Law of Pleadings & Conveyancing, M.K. Majumdar
6. Law of Pleadings in India, P.C. Mogha, M.C. Agarwal, G.C. Mogha
7. Art of Conveyancing and Pleading, Murli Manohar
8. Pleading, Drafting & Conveyancing, R.N. Chaturvedi

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9. Indian Conveyancer, P.C. Mogha, K.N. Goyal, G.C. Mogha
NOTES
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Chanderprabhu Jain College of Higher Studies

Class : 10th semester

Paper Code :503

Subject :drafting ,pleading, convincing

Unit 1 to 4 DRAFTING OF PLEADING AND CONVEYANCING

- General Principles of Drafting and Relevant Rules

- Memorandum of Appeal and Revision

- Criminal Miscellaneous Petition

- Memorandum of Appeal and Revision

DRAFTING OF PLEADINGS AND CONVINCING

GENERAL PRINCIPLES OF DRAFTING AND RELEVANT RULES

It is a matter of common knowledge that when a person comes to seek the

3Fundamental Rules of Pleadings

which they are to be proved,

Examples of Bad Pleading:

should be careful while drafting a plaint or a written statement. Sometimes, there is

of mortgage and the details of the conditions pertaining to the mortgage.

and in whose presence.

V. That the defendant is liable to render account of income and expenditure in

defendant without his consent. A proposition of law has been stated.

show inter-connection between various facts which otherwise may appear to be

6 inference of law stated is unnecessary. It should be remembered that where such

relationship. If a party proves that a custom prevailed in the community which

which has accrued to the party.

guided by the inessentials.

embodied in order VI Rule 2 and it requires that -

as the case may be; and

should the party plead evidence.

party is not able to decide whether a fact is material or not, or it he entertains a

materiality of a particular fact, it would be better to include than to exclude, be

rule is that a party cannot prove a fact which he has pleaded.

or dimensions which the pleadings are likely to assume. An experienced lawyer

elimination he must also see whether by excluding certain seemingly immaterial

has prepared, he would still succeed. If he can return an affirmative answer, he

materiality of the facts would be to ask whether by proving a particular fact, he

cause of action or the defence.

whim or eccentricity of their clients.

Instances of Material Facts: In a petition for judicial divorce on the ground of

or the map thereof was duly sanctioned by the appropriate authority. Or if a

because if proved, they will establish the cause of action.

that they were ironically used or were intended so to be understood.

between two persons within the degrees of prohibited relationship is challenged in

parties which permitted or sanctioned such a marriage between spindas. It is

permitted or sanctioned such a marriage.

example, where the case is based on a sale-deed, it is material to state that a

property to him by a sale-deed dated so and so which was duly registered.

In a suit for specific performance of a contract it is material to allege that the

and is willing to perform his part of the contract.

Examples of Facts not Material

payment and he refused, because no demand is necessary when the promissory

essential to sustain an action. A person has no right of action in respect of a public

have to mentioned that services of the plaintiff were terminated as a result of a

for the publication of the defamatory article

stated. The rule is, however, subject to the following exceptions:

i. The performance of occurrence of any condition precedent need not be pleaded

occurrence of such condition, he is bound to set-up the plea distinctly in his

requires such a notice to be given.

not allege consideration as sec.118 of Negotiable instruments Act raises a

these facts lies on the plaintiff himself.

perfactory remarks are cut down to the minimum.

asserted and which have to be established through evidence whether documentary

Now facts are classified under the following two categories:

mixed up and are almost indistinguishable. For ex., A was married to B in