Odisha Judicial Service Examination (Prelims) - 2013

Under article 21 of the constitution, no person shall be deprived of his life or personal liberty except according to procedure established by law. So, this fundamnetal right is available to all persons.

Article 40 of the Indian Constitution provides organisation of village panchayats under chapter IV of the directive principles of state policy.

Right to education is a fundamnetal right under article 21A of the Indian Constitution added by the 86^th Constitutional (Amendment) Act 2002.

Fundamental duties of Indian citizens are provided under article 51A of the Indian Constitution. To promote Indian culture is not a fundamnetal duty of Indian citizens under article 51A.

Article 19 clause (a) of the Indian Constitution states that all citizens shall have the right to freedom of speech and expression.

It was in the case of Golaknath v. State of Punjab that Chief Justice Subba Rao had first invoked the doctrine of prospective overruling. 

Set off may be legal set off or equitable set off.

Preliminary decree can be passed in a suit of partition, partnership, for possession and mesne profits.

An issue of "Right to die" raised before the court in Gian Kaur v. State of Punjab. In this case, a five judge Constitutional Bench of the Supreme Court overruled P. Ratinam’s case and held that “Right to Life” under Article 21 of the Constitution does not include “Right to die”.

Section 100 of the Code of Civil Procedure, 1908 provides for a second appeal to the High Court from an appellate decree.

Remedies available against an ex-parte decree include application for setting aside ex-parte decree.

Pecuniary jurisdiction of the court has been dealt with in section 6 of code of civil procedure.

Nemo debet bis vexari pro una et eadem causa means no one shall be vexed twice for one and the same cause of action.

In execution of a decree for maintenance, one third of the salary of a person is exempted from attachment.

Article 20(3) deals with the privilege against self-incrimination. Article. 20(3) embodies this privilege.

Under article 12 of the Indian Constitution, the State includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. Thus, Berhampur University Student Union is not a state as per the definition of article 12 of the Indian Constitution.

Doctrine of colourable legislation is not related to article 13 of the Indian Constitution. The doctrine of colourability is the idea that when the legislature wants to do something that it cannot do within the constraints of the constitution, it colours the law with a substitute purpose which will still allow it to accomplish its original goal.

Section 304 of the code of criminal procedure states legal aid to accused at state's expense in certain cases. 

Section 300 of the code of criminal procedure states that a person who has once been tried by a Court of competent jurisdiction for an offence and convicted or acquitted of such offence shall, while such conviction or acquittal remains in force, not be liable to be tried again for the same offence. 

Under section 39 of the code of criminal procedure, every person, aware of the commission of, or of the intention of any other person to commit, any offence punishable under any of the following sections of the Indian Penal Code, namely
(i)   sections 121 to 126, both inclusive, and section 130
(ii)  sections 302, 303 and 304 (that is to say, offences affecting life);
(iii) sections 489A to 489E, both inclusive (that is to say, offences relating to currency notes and bank notes) shall forthwith give information to the nearest Magistrate or police officer of such commission or intention.

Section 416 of the code of criminal procedure states that if a woman sentenced to death is found to be pregnant, the High Court shall commute the sentence to imprisonment for life. 

As per Order XXXlll Rule 11A of CPC, where the suit abates by reason of the death of the plaintiff or of any person added as a co-plaintiff, the Court shall order that the amount of court-fees which would have been paid by the plaintiff if he had not been permitted to sue as an indigent person shall be recoverable by the State Government from the estate of the deceased plaintiff.

Under section 366 of the code of criminal procedure, when the Court of Session passes a sentence of death, the proceedings shall be submitted to the High Court, and the sentence shall not be executed unless it is confirmed by the High Court. 

Section 45 of the code of criminal procedure provides protection to the members of armed forces from arrest.

Section 115 of the Indian Evidence Act, 1872 deals with Doctrine of Estoppel.

Section 354 states that except as otherwise expressly provided by this code, every judgment referred to in section 353-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for determination, the decision thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which, and the section of the Indian Penal Code or other law under which, the accused is convicted and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the offence of which the accused is acquitted and direct that he be set at liberty. 

Section 119 of the Indian Evidence Act defined dumb witness. It states that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible.

Section 141 of the Indian Evidence act states that any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

Under the provisions of the Indian Evidence Act, 1872, when an accused says that he did not make confession, it is called retracted confession. 

Opinion of an expert under Section 45 of the Indian Evidence Act, 1872 is corroborative as well as supportive in nature. 

Section 8 of the Indian Evidence Act deals with motive, preparation and previous or subsequent conduct. 

Section 75 of the Indian Evidence Act, 1872 defines private documents as all documents other than public documents.

Section 47A of the Evidence Act states opinion as to electronic signature when relevant. 

Section 125 states that no Magistrate or Police officer shall be compelled to say whence he got any information as to the commission of any offence and no revenue officer shall be compelled to say whence he got any information as to the commission of any offence against the public revenue. 

Qui facit per alium facit per se is a Latin legal term meaning, "He who acts through another does the act himself." This is a maxim often stated in discussing the liability of employer for the act of employee.

Section 377 of Indian Penal Code is read as unnatural offences. It states whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished.

In Mithu vs State of Punjab (1983), the Supreme Court ruled that the mandatory death penalty is unconstitutional. It struck down Section 303 in the IPC, which entailed a mandatory death sentence for a person who commits murder while serving a life term in another case. 

William Blackstone in his book, Commentaries on the Laws of England, has defined Crime as, “an act committed or omitted in violation of public law forbidding or commanding it.

No sentence of imprisonment for a term exceeding three months shall be passed in the case of any conviction under summary trial.

The High Court may call for the record of any case which has been decided by any court subordinate to such High Court and in which no appeal lies thereto and if such subordinate court appears
(a) to have exercised a jurisdiction not vested in it by law or
(b) to have failed to exercise a jurisdiction so vested or
(c) to have acted in the exercise of its jurisdiction illegally or with material irregularity

“They also serve who only stand and wait.” This observation formed part of the judgement of the Supreme Court in the case of Ramashish Yadav vs. State of Bihar.

The two-judge bench of Supreme Court in the case of "Trivenibin vs. State of Punjab (1989) held that long delay by the President of India or Govenror of State in disposing mercy petitions from the convicted person under Anti-Terrorism laws or similar status can’t be ground for communication of death penalty into life imprisonment.

In criminal law, strict liability is liability for which mens rea does not have to be proven in relation to one or more elements comprising the actus reus although intention, recklessness or knowledge may be required in relation to other elements of the offence.

Admission under section 17 is defined as an admission in a statement, oral or documentary or contained in electronic form, which suggests any inference as to any fact in issue or relevant fact and which is made by any of the persons and under the circumstances hereinafter mentioned.

Section 304B in Chapter XVI of IPC deals with dowry death. It states where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or har­assment by her husband or any relative of her husband for or in connection with any demand for dowry, such death shall be called “dowry death”.

The company being a juristic person cannot be prosecuted for an offence for which custodial sentence is the mandatory punishment.

Under List III Entry 13 of the Indian Constitution, Civil procedure, includes all matters included in the Code of Civil Procedure at the commencement of this Constitution, limitation and arbitration. 

Limitation laws suggest that all disputes/claims/remedies should be kept alive only for a legislatively fixed period of time for otherwise disputes would be immortal when man is mortal.

As per Section 2 (x) of code of criminal procedure, "warrant-case" means a case relating to an offence punishable with death, imprisonment for life or imprisonment for a term exceeding two years.

The Supreme Court of India in the case of "Mubarak Ali vs. State of Bombay" held that the general principle of criminal jurisdiction is that jurisdiction is determined by the locality of the offence irrespective of the nationality or any other similar attributes of the offender.

For an account and a share of profits of a dissolved partnership, the period of limitation is three years from the date of dissolution. It is given under article 5 of the Limitation Act.

Under Section 25 (3) of the Limitation Act, 1963, the right to access and use of light or air, way, watercourse, use of water, or any other easement which has been peaceably enjoyed without interruption for thirty years if the property belongs to government, shall be absolute and indefeasible.

Section 5 of the Indian Limitation Act, 1963 states "Extension of prescribed period in certain cases". It also states condonation of delay which is applicable in case of appeal.

Section 89, C.P.C. embraces the provision for settlement of dispute outside the court.

Under section 125 of code of criminal procedure, the order for maintenance of wives, children and parents is to be made.

The Limitation Act, 1963, however provides the period of filing up appeals. It states that the appeals against a decree or order can be filed in a High Court within ninety days and in any other court in thirty days from the date of the decree or order appealed against.

Limitation Act, 1963 was enacted on October 5, 1963 and came into force on January 1, 1964 for the purpose of consolidating and amending the legal principles relating to limitation of suits and other legal proceedings.

If a claim is satisfied outside the court of law after the expiry of period of limitation, that is not illegal.

Under article 54 of the Limitation Act, the specific performance of a contract shall be sought within three from the date fixed for the performance or if no such date is fixed, when the plaintiff has noticed that performance is refused. 

Section 9 of the Limitation Act states that where once time has begun to run, no subsequent disability or inability to institute a suit or make an application stops it. 

Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void. 

Nemo dat quod non habet, literally meaning "no one gives what he doesn't have" is a legal rule, sometimes called the nemo dat rule.

Under section 67 of the transfer of property act, it has been stated that a suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure. 

Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens.

Under section 5 of the transfer of property act, "transfer of property" means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons. 

A mortgage by deposit of title deed is called equitable mortagage. An equitable mortgage is that in which the lender is secured by taking possession of all the original title documents of the property that serve as security for the mortgage. 

According to Section 123 of transfer of property act,
(i)  for the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed and attested by at least two witnesses or by delivery and
(ii) for the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.

In the Mohammedan law, a gift of property requires three essentials:
(1) Declaration of the gift by the donor
(2) Acceptance of the gift by the donee
(3) Delivery of possession to the donee

A lease of immovable property from year to year or for any term exceeding one year or reserving a yearly rent can be made only by a registered instrument.

M. C. Chako vs. State Bank of Travancore, AIR 1970 SC 504 case is related to privity of contract in India.

Hadley v Baxendale (1854) is a leading English contract law case. It sets the basic rule to determine consequential damages from a breach of contract.

Under English Law, past consideration is no consideration and under Indian Law, past consideration is good consideration.

An offer made to the public at large is called general offer.

The Commissioner of Wealth Tax, Mysore vs. Vijayaba Dowger Maharani Saheb, Bhavnagar and Others, AIR 1970 SC case is related to contingent contract.

At any time, a continuing guarantee about future transactions can be revoked by the surety by notice to the creditor and continuing guarantee can be revoked by death of surety.

Tthe Hindu Succession Act, 1956 came into force on 17^th June, 1956.

Hindu Succession ACt, 1956 extends to the whole of India except the state of Jammu and Kashmir. 

A Hindu female W dies and is survived be by her husband H, one son S, two revoked: unmarried daughters Dl and D2. The property of W will be divided into four equal parts.

The act lays down some general rules of succession inter alia to the effect that heirs related to a male or female intestate by full blood are to be preferred to those related by half blood if the nature of relationship is the same in every other respect under section 18.

Section 14 (2) of the Hindu Succession Act states that nothing contained in sub-section (1) shall apply to any property acquired by way of gift or under a will or any other instrument or under a decree or order of a civil court or under an award where the terms of the gift, will or other instrument or the decree, order or award prescribe a restricted estate in such property. 

Mental Infirmity is not be a ground for disqualification under Hindu Succession Act, 1956.

A legacy is bequeathed to A on condition that he shall marry with the consent of B, C, and D. A marries without the consent of B, C and D. A has not fulfilled the condition.

Under section 18 of the Indian Succession Act, 1925, degrees of kindred are computed in the manner set forth in the table of kindred set out in Schedule I. 

Under section 184 of Indian Succession Act, a person taking no benefit directly under a will but deriving a benefit under it indirectly is not put to his election, has been provided.

A specific performance of a contract may be enforced under section 19 of the Specific Relief act, when a relief against parties and persons claiming under them by subsequent title. 

Section 310 of the Indian Succession Act, 1925 states that if any executor or administrator purchases, either directly or indirectly, any part of the property of the deceased, the sale is voidable at the instance of any other person interested in the property sold. 

The relief is available under section 6 of the specific relief act. It has been stated under section 6 that if any person is dispossessed without his consent of immovable property otherwise than in due course of law, he or any person claiming through him may by suit recover possession thereof, notwithstanding any other title that may be set up in such suit. 

The wording of section 31 of the specific relief act states that any person against whom a written instrument is void or voidable and who has reasonable apprehension that such instrument, if left outstanding may cause him serious injury, may sue to have it adjudged void or voidable and the court may in its discretion so adjudge it and order it to be delivered up and cancelled. 

In a simple suit for specific performance of contract for sale, a person who is not a party to the Agreement for Sale is neither a necessary nor proper party. The exemptions available under Specific Relief Act are in all above cases mentioned.

An Invitation to offer is an act prior to an offer in which one person induces another person to make an offer to him.

All above injunctions can be granted by the court. Injunction is categorised in two forms, i.e. Permanent Injunction and Temporary Injunction 

Under section 5 of the specific relief act, a person entitled to the possession of specific immovable property may recover it in the manner provided by the Code of Civil Procedure, 1908. 

Any person having the possession or control of a particular article of movable property, of which he is not the owner may be compelled specifically to deliver it to the person entitled to its immediate possession in any of the following cases:
(a) when the thing claimed is held by the defendant as the agent or trustee of the plaintiff;
(b) when compensation in money would not afford the plaintiff adequate relief for the loss of the thing claimed;
(c) when it would be extremely difficult to ascertain the actual damage caused by its loss;
(d) when the possession of the thing claimed has been wrongfully transferred from the plaintiff.

Where a plaintiff seeks specific performance of a contract in writing to which the defendant sets up a variation, the plaintiff cannot obtain the performance sought except with the variation so set up in the section 18 of the Specific Relief act.

When to prevent the breach of an obligation, it is necessary to compel the performance of certain acts which the court is capable of enforcing, the court may in its discretion grant an injunction to prevent the breach complained of and also to compel performance of the requisite acts under section 39 of the specific relief act.

Where an instrument is evidence of different rights or different obligations, the Court may, in a proper case, cancel it in part and allow it to stand for the residue. This provision is provided in the Specific Relief Act under section 32.

If a promise is made to compensate, wholly or in part, a person who has voluntarily done something for the promisor, is enforceable even though without consideration. In other words, a promises to pay for a past voluntarily service is binding. This is an exception to the principle that past consideration is no consideration. ‘A’ saves ‘B’ from drowning in a river. ‘B’ promises to pay ‘A’ Rs. 10,000 for this kind act. The contract is valid.

A contract by which one party promises to save the other from loss caused to him by the conduct of the promisor himself, or by the conduct of any other person, is called a “contract of indemnity.” defined under section 124 of the Indian Contract Act.

Commercial impossibility does not render a contract void after it has been made.

Actionable claim is a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property.