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CIVIL
- Plaint
- Written Statements
- Interlocutory Applications
- Original Petition
- Affidavit
- Execution Petition
- Petition under Art. 226 and Art. 32 of the Constitution of India CRIMINAL
- Complaint
- Bail Application
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CONVEYANCING
- Essentials of a Deed
- Sale Deed
- Mortgage Deed
- Lease Deed
- Gift Deed
- Promissory Note
- Power of Attorney
- Will
- Agreements
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.
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.
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
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
and in spite of
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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.
A few instances of bad pleading for the benefit of the law students who whish to
join the Bar: A lawyer
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
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
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
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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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
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
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
(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
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
I. the party pleading must plead all material facts on which he intends to rely for
his claim or defence
II. He must plead material facts only, and that no fact which is not material should
be pleaded, nor
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
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
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
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
irrelevant facts, but if the answer be in the negative, then he must include them
Another way of testing the
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
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
allege that he has been in undisturbed possession thereof for over twelve years.
Such facts are material,
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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
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
the party is challenging the validity of the marriage must allege that there was no
custom governing the
existence of a long established family or caste custom governing the parties to the
marriage which
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
In a suit on a promissory note, it is not material to state that the plaintiff requested
the defendant to make the
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
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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damaged the professional repetition of the plaintiff so much salary which he might
have continued to get but
Exception to the General Rules: The general rule as stated above is that only the
material facts should be
shall be implied in the pleading. But where a party chooses to contest the
performance or
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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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
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
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
(3) Facts not Evidence: While drafting a plaint, a lawyer must distinguish
between facts which are
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.
10
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.
(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
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
(1) Malice, Knowledge etc : Order VI Rule 10 clearly says that wherever it is
material to allege malice,
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
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
11
them out in detail. And if in such case the person pleading desires to rely in the
alternative upon more
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
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
(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
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
pleading would be justified. If the facts stated in the pleading are all material, then
they all must be alleged
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
a) The names of persons and places should be accurately given and correctly spelt;
spellings adopted
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
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
12
f) In any pleading, the use of "if', "but" and "that" should be, as far as possible,
avoided. Such words
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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.
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
i) Very often, pleadings are full of repetitions. Such a tendency makes the
pleadings not only lengthy,
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
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.
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
A person making a false verification is liable to be punished under the Indian Penal
Code, as making a false
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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13
…………… 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
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
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
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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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
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;
effect,
14
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,
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.
Versus
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If there are more plaintiff or defendant than the names of all plaintiffs/and
defendant should be given in
After the names of the parties the title of the suit should be given for ex. "suit for
specific performance
and damages".
Or
Or
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:
15
(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
(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.
At the foot of the pleading, the plaintiff should /or anyone else, who is acquainted
with the facts of the case,
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
business at ………….
3) Partnership firm - MIs XYZ, a partnership firm registered under the Indian
partnership Act. with its
4) A company - MIs XYZ, Pvt. Ltd. A company incorporated under the companies
Act having its
registered officiate………….
………….
8) Minor - AB, son of …………., a minor through his father and natural guardian
CD son of ………….
16
Resi. of ………….
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12) Cooperative Society: MIs. XYZ Ltd. A cooperative Society registered under
the Delhi co- operative
plaintiff, which is delivered to the defendant along with the summons to attend at
the first hearing of the suit.
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
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
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
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
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
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
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
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
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.
applications should be drafted with the same care as pleadings. Like pleading the
lA's should be both
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
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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"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
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
"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:
After prayer, should follow the signature of the applicant where law requires the
verification, the application
insufficient grounds.
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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j) Objections under order XXI Rule 58, or order XXI Rule 89, 90, 91, or order
XXI, Rule 98,
appointment of receiver,
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
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
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
The fundamental rule of pleadings mentioned in the part I of this study material are
broadly applicable even
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
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
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
proceedings.
Special Enactments
SAMPLE FORM
Between
AB Applicant …………….
And
Details of Application
5. Limitation: The State that the application is filed within time prescribed under
Section 21 of the
delay.
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.
12. Details of India: An index in duplicate containing the details of the documents
to be relied on is
enclosed as A-1.
Versus
PART II
5. Pattial dated 8
Date……………..
Registration No ………….
_____________
Forum, Madras
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Versus
N. Pankajavali Opposite-party.
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,
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:
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
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
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.
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
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
b) Direct the Opposite party to pay the complementation of a sum of Rs. 75,0001-
for the
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
Verification
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I, Mrs, Ryhana Banu alias Rahan Banu, the complainant above named, do hereby
verity that what is stated
Complainant.
Petitioners
Versus
Respondents.
7) Does the person in respect of whom compensation is claimed pay income tax? If
so state the
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9) Name and address of the police station in whose jurisdiction the accident took
place or was
registered:
(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:
(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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PART I
e. Extra nourishment:
g. Others:
PART II
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
(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
on …………..
13. That while he was stationed at………….. and serving as ………….. he was
served with a
14. That enquiry into the said charges was made by respondent No.3 from
…………..
16. That on ………….. the petitioner received notice form respondent No.2 to
show cause why
68
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
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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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
A B, petitioner
Advocate
Versus
nominated.
5) That the respondent No. 1 was a candidate at the previous (19 ) general election
of this
69
person who had stood as a candidate at the previous general election and had not
been elected
7) That the respondent No. 1 was in contravention of the provisos of law and his
membership
directing him not to exercise or use the rights, liberties and privileges in respect of
the office of
Dated A B, Petitioner
Advocate
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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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
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
Generally the formate used in all such complaints is similar because the complaint,
whatever it nature, has
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
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.
commandants" :-
1. Be brief,
2. Be positive,
3. Be precise,
4. Be relevant,
7. Do not plead what the low or the court takes for granted or what the other side
has got to prove.
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.
complaint are:
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;
c. The name and description including age, occupation and place of residence of
the complainant.
f. The heading of· the complaint showing the section or section constituting the
offences and
manners:
ii. May it please the complainant above named begs to state on oath or solemn
affirmation as
follows:
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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commission of offence, but it must contain facts which constitute the offence. The
basic facts and materials
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
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
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
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
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
decided so that he may not be put to the necessity of under going a trial in case he
succeeds on the
preliminary objection.
those charge must be fully and properly proved in accordance with procedure and
the law of evidence
In offences state becomes the party and the accused has to put up his defence. It is
the duty of the
not required to institute any petition. It is the responsibility of the state to launch
prosecution against the
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
directions, orders or writs including writs in nature of habeas corpus etc. for the
enforcement of any of the
By virtue of Art.227 every High Court has superintendence on all courts and
tribunals through out the
armed forces.
b) Make and issue general rules and prescribe forms for regulating the practice and
proceedings of
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
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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Complaint no ……………….
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/-
Other petitions under sec. 107, 109,125 and 133 Cr P. C. maybe filed in Criminal
court.
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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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
'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
Under the provisions of Cr P.C., bails may be studied under three heads:
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
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
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
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
The object of this section is that if a person has already obtained an order from the
session judge or the
few days which would necessarily be taken up if he has to apply for bail after
arrest.
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
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
Police officers, Magistrates, courts and Government are empowered to grant bail
under the various
(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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(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
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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Court or the court of session for a direction under the said section and that the
Court may if it thinks fit direct
In order to enable the judge to decide whether bail should be granted or not and
what exactly are the terms
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.
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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3) That there is danger of such offence being repeated and continued etc.
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.
State V ……………….Accused
1) That the application 1 accused was arrested by the Police of Police Station
.............. on
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
Place Applicant
Dated or
State V……………….Accused)
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Gambling Act
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
In
Police station .
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
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
In
Police Station .
1) That the applicant was arrested by the police Station and he has been in
detention since then.
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
PRAYER
Dated:
In
Police Station……………….
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
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:
In
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
4) That remaining applicants numbered (2) (3) are the supporters 0 the application
No (1) and all
sponsoring candidates for elections to various· offices of the students· Union in the
aforesaid
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.
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
9) That the applicants and the demonstrators rushed to quench the fire and catch
hold of the
10) That the applicants are innocent and it appears that the explosion was
manipulated by elements
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
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
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
In the matter of an application for bail under sec. 439 (1) (a) of Cr P.C. 1973.
And
And
To,
The Hon'ble Chief justice and his companion Justices of said Hon'ble Court. The
humble petition of the
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.
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
4) That petitioner's application for bail at the trial court was rejected on
………….while some
5) That the petitioner is a social worker having done many social works known to
the people 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
PRAYER
In the facts and circumstances set fort above your petitioner most humbly prays
that your lordships may be
Dated:
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
82
considered in each case with reference to the language employed by the statute.
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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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
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
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
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
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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Versus
For the following among other grounds the appellant herein begs to prefer this
appeal under sec, against
GROUNDS
a. That the learned Magistrate erred in law in taking cognizance of the case and as
such the conviction
is bad in law.
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
e. For that at all events the accused ought to have been given the benefit of doubt
and acquitted.
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.
Versus
a. Name and
b. description of
c. accused
d. and
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
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
(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
(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
(f) The learned session's Judge's judgment is against the weight evidence and
probabilities and is
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/-
Place:
(This appeal against acquittal must accompany an application for leave to appeal
along with the certified
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.
be deemed to be inferior to the session judge for the purposes of sub-section (1) of
sec.397 and sec.398
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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When a revision petition is dismissed by the sessions Judge the order is final and
no second revision
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
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
CRIMINAL REVISION NO -
A………….…………. petitioner
Versus
The petitioner above named most respectfully submits this revision petition against
the order
GROUND OF RIVISION
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
Dated:
_________
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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In the present world, the scope of Conveyancing has become very wide and
extensive in use and
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
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
1925.
(1) In India the forms of Conveyancing are based on the present English forms.
No. legislation in India has
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,
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
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
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
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
in order to come to a conclusion what does the expression or the language means to
convey. A draftsman
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.
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
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) 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
(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
This deed of sale made on the fifth day of September, one thousand nine hundred
and eighty-two (5th day
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)
(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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intended that the successors the parties win also be bound by the deed it is usual to
add a clause after the
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.
The Delhi sugar Mills Co. Ltd. A company registered under the companies Act,
1956 having its registered
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)
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
Unilateral deeds: Since there is only one party he can refer to himself as 'I' or as
"the executants" in the
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:
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
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.
(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
"assigns" etc. are used to denote the purpose and object of the deed. In this part the
property which is the
(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
(iii) Exception and reservations: In this part of the deed all the exceptions and
reservations which are
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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
(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
(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
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
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
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.
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
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
property is situate in several districts, by such number of time copies of the map or
plan as are equal to
(i) Where it is, in the opinion of the state Government practicable to describe
houses, not being houses in
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
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
and such like impediments have to be taken into account and the draftsman would
be well advised to
After the deed has been drafted, if the parties are illiterate the deed should be read
out to them and
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
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
d. The literal meaning which the parties were in the habit of affixing to the
expression employed.
f. Extrinsic evidence may be admitted, not for finding out the writer's intention, but
only to interpret the
language used.
Once a document has been executed no oral evidence will be permissible in proof
of the terms of the
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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
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)
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
Sec.98. Evidence may be given to sow the meaning of illegible or not commonly
intelligible characters, of
particular sense.
Attestation:
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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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
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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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
Sec.59. proof where no attesting witness found: It no such attesting witness can
be found, or if the
one attesting witness at least is in his handwriting, and that the signature of the
person executing the
Sec.71 : Proof when attesting witness denies the execution may be proved by other
evidence.
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
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
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
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
being duly stamped shall be punishable with fine which may extend to five
hundred rupees.
Registration
document must be registered not with standing that the transaction is one which the
law does not require to
registering officer shall refuse to register any document presented to him for
registration unless it is
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
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.
the sub-registrar within whose sub-district the whole or some portion of the
property to which the
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.
(d) Effect of registration : A registered document operates from the time from
which it was intended to
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.
effect and is void as regards immovable property. It cannot affect any immovable
property comprised
therein against unregistered document relating to the same property even j the two
documents are not of
parties in the dearest possible language in order to keep the evidence of those
intentions in writing. The first
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
This should not be done. Thus, in stating that A and B took as tenant- in-common
it is unnecessary to add
words and expressions which cause confusion. Facts should, as a general rule, be
stated in chronological
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
consideration is not money but some other valuable consideration the transaction
may be an exchange not
outstanding debts and other monetary liabilities can be price in a sale. If no price is
paid or promised even a
The law does not require that the consideration should be immediately
ascertainable in money. It is
essential to the completion of a sale. The sale is complete as soon as the sale deed
is registered even if the
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
on the death of a kinsman or any other mere possibility of a like nature, cannot be
transferred
him.
transferred.
f. A public office cannot be transferred, nor can the salary of a public officer,
whether before or after it
g. Stipends allowed to military, naval, air force and civil pensioners of the
government and political
Act, 1872, or
the farmer of and estate in respect of which default has been made in paying
revenue, or the lessee
or lessee.
see. 7 at the Transfer of Property Act deals with the competency to be a transfer.
The transfer must be:
(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:
subject, and who is of sound mind, and is not disqualified from contracting by any
law to which he is subject.
Section 8 lays down the consequences which follow from the transfer of property.
All interests which the
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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
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
of. When this is done specific mention must be made in the deed of the added
condition or of the varied
condition.
Sec. 10 makes void a condition absolutely restraining the transferee from parting
with or disposing of his
restricting the enjoyment of the property will be ignored. Sec. 12 enacts that a
condition making the interest
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
and the period of minority of a person who shall be in existence at the expiration of
those lives.
transfer.
There are only two modes of transfer by sale and these are: -
(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
instrument. A contract for the sale of immovable property can also be made only
by a registered instrument.
A sale deed is usually executed as a deed poll by the vendor and written in the first
person. The law does not
A sale deed must contain, apart from the description of the deed and the date,
details of the following
elements:
(ii) The capacity and capability of the vendor to transfer the property,
(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
(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).
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 :
though the sale is not required to be effected by a registered instrument, but if such
a sale deed is
possession.
Students can draft the sale deed with the help of different books of conveyancing
Definition of Mortgage: The Transfer of Property Act, 1882, Sec. 58, defines a
mortgage. A mortgage is :
(iii) The performance of an engagement which may give rise to pecuniary liability.
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
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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The word "specific" shows that the description of the immovable property should
not only be free from
at least be sufficient to identify the property. The ruses laid down in Sec. 21 and 22
Registration Act for
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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A mortgage may be made as security for the payment of a present debt or for the
payment of a debt that may
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
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
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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Kind of Mortgages:
property to be sold.
(e) No power of sale out of court. Power to sell mortgaged property is only
obtained on a decree
(f) The mortgage must be effected by a registered deed even if the consideration is
below Rs.
100.
(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.
(d) The mortgage must be by registered deed if the consideration is Rs. 100 or
more. If the
(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
(f) The mortgage must be affected by a deed registered if the consideration is Rs.
100;
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(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)
(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
(b) It is created by delivery of the material title deeds in respect of the mortgaged
property to the
(c) It is made only for the purposes of securing a past debt or advance or to cover
future
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advances.
(f) All the provisions relating to a simple mortgage apply to an equitable mortgage
mortgage.
(d) It the mortgage is foe a consideration of Rs. 100 or more the deed must be
registered, if
Mortgage Registration:
(i) A simple mortgage can, whatever be the amount secured, only be made by a
written
(ii) For a mortgage by deposit of title deeds no formalities are prescribed. It can be
either oral or
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witnesses and registered if the money secured is a Rs. 100 or more. But a mere
(iii) The other four kinds of mortgage, if the amount secured is Rs. 100 or above
can only be
and registered. If the amount secured is less than RS.1 00 the mortgages can be
effected
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
The right of redemption is regulated by sec. 60 of the transfer of property Act, and
the right of usufructuary
Right of foreclosure:
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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Another right which a mortgagee has is applying to the court for a decree for the
sale of the mortgage
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
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
stamp Act.
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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),
nazrana);
(v) In consideration of money a share of crops, service or any other thing of value
to be
(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
(iii) The commencement date and the period or duration of the lease;
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
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.
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.
In the absence of a contract or local usage to the contrary the lessor possesses and
is subject to the
(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
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.
In the absence of a contract or local usage to the contrary the lessee possesses and
is subject to the
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;
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
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
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;
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
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;
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
i) The lessee is bound to payor tender, at the proper time and place, the premium or
rent to the lessor
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
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
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
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.
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
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
executed both by the lessor and the lessee. A lease should be drafted as a deed
between the landlord
Determination of leases
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(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
(e) By express surrender, that is to say in case the lessee yields up his interest
under the lease to the
(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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(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
(h) On the expiration of a notice to determine the lease, or to quit, the property
leased, duly given by one
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
family or servants at his residence, or (if such tender or delivery is not practicable)
affixed to a conspicuous
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
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
Leases can either be oral or written and registered. A lease which is permitted to be
made by oral
must be registered and delivery of possession will not validate it. An unregistered
written lease is a not valid.
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.
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;
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
(iv) It must be accepted by the donee. It may be pointed out that the definition of
gift in the Gift
and surrender. But this definition is for the purposes of gift tax only.
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.
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
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
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
donee's receiving the gift deed form the donor after execution thereof, and
presenting it for registration and
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.
Mohammedan law permits an oral gift even with respect to a gift of immobile
property a registered
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
Under Mohammedan law a Mohammedan can make a valid gift to a Hindu or any
other person and such a
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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
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,
Stamp Duty
Stamp duty is payable under Art. 49, schedule I, stamp Act. Registration is not
required.
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.
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
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;
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
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
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
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
District court within the local limits of whose jurisdiction the instrument may be.
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
made orally or in writing and formalities of signatures, attesting witnesses etc. are
not required to be
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
Though usually wills are made for disposing property they can also be made for
appointing executors, for
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
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,
(a) The testator shall sign or affix his mark to the will, or it shall be signed by some
other person on his
(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
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.
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
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.
All property, movable and immovable, of which the testator is owner and which is
transferable can be
Any Hindu may dispose of by will or other testamentary disposition any property,
which is capable of being
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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
defined in Sec. 2 C. of the Indian Succession J\ct to mean a person to whim the
execution the last will of a
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.
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
Sec. 213 of the Indian Succession Act enacts that no right as executor or enacts
that n right as executor or
granted probate of the will under which the right is claimed, or has granted letters
of administration with the
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(ii) By Hindu, Buddhists. Sikhs and Janis Within the territories of West Bengal or
the presidency
(iii) By parsi within the local limits of the ordinary civil jurisdiction of the High
Courts at Calcutta, Madras
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
satisfies the conditions prescribed by rules made by the Sate Government in this
behalf. Other provisions
(IX) AGREEMENTS
A proposal when accepted becomes a promise, and every promise and every set of
promises forming the
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
(i) Who is of the age of majority according to the law to which he is subject,
(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
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.
Thus a contract into which a party has been induced to enter on account of
coercion, undue influence,
Void agreements
An agreement is void:
(vi) If its meaning is not certain or capable of being made certain (Sec. 29 Contract
Act) or
(ii) It is of such a nature that, if permitted, it would defeat the provisions of any
law, or
(iii) Is fraudulent; or
the promise to perform the contract in the absence of a contrary intention. This
does not apply where 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
Attestation
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
proper stamp duty having regard to the changes made in the Stamp Act. In the state
where the agreement is
executed.
Registration
IMPORTANT QUESTIONS
Q.7. What do you mean by Deed Poll and deed indenture? Q.8. What do you mean
by a Codicil?
Q.10. What do you mean by legal representative? Q.11. How can a plaint be
amended?
Q.15. What do you mean by written statement and what are the two parts of w.s.?
Q.17. Draft a plaint and ws. for specific performance of a contract for purchase of
car? Q.18. Draft a plaint
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.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.26. Draft a special power of attorney for recovery of debt. Q.27. Draft a
promissory note.
Q.29. Draft a petition on behalf of the wife for judicial separation on the ground of
desertion under Hindu
SUGGESTED READINGS
NOTES
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