Odisha Judicial Service (Preliminary) Exam (2011)

Section 304B of the Indian Penal Code states that 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", and such husband or relative shall be deemed to have caused her death. 

If a person is unlawfully confined, than he can be released from such confinement by the writ of habeas corpus.

Article 39A of the Constitution of India deals with equal justice and free legal aid. 

Right to contest elections has been held as constitutional right but subject to qualifications and disqualifications.

The Chairman and other members of the UPSC (Union Public Service Commission) are appointed by the President of India.

The oath of the President is taken in the presence of the Chief Justice of India and in his/her absence by the most senior judge of the Supreme Court.

Grievous hurt is defined under section 320 of Indian Penal Code, which includes emasculation, disfiguration and any hurt which endangers life.

The distinction between sections 299 and 300 was made clear by Melvill, J. in R.V. Govinda.

Suspension of provisions of Article 19 during Emergency is dealt in Article 358 of the Indian Constitution.

Section 362 of the Indian Penal Code defines whosoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person. 

Under section 107 of the Indian Penal Code, a person abets the doing of a thing, who
First: Instigates any person to do that thing; or
Second: Engages with one or more persons in any conspiracy for the doing of that thing if an act or illegal omission takes place in pursuance of that conspiracy and in order to the doing of that thing; or
Third: Intentionally aids, by any act or illegal omission, the doing of that thing. 

Garnishee means a judgment debtor’s debtor. He is a person or institution that is indebted to another whose property has been subject to garnishment. 

Movable property not in possession of the judgement debtor can be attached by an order prohibiting the person in possession thereof from giving it to the judgement debtor.

The special provisions to Finance Bills are provided under the Constitution of India in Article 117.

Actus curiae neminem gravabit is a Latin maxim which means an act of the court shall prejudice no one.

Section 339 of the Indian Penal Code defines whosoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed.

Precept means to command, to order and to file a writ.

A judgment debtor may be arrested in execution of a decree at any hour and on any day and shall, as soon as practicable, be brought before the Court and his detention may be in the civil prison of the district in which the Court ordering the detention is situated.

Section 75 of the Indian Evidence Act, 1872 deals with private documents. 

On 31 July 1980, in its judgement on Minerva Mills v. Union of India, the Supreme Court declared unconstitutional two provisions of the 42^nd Amendment which prevent any constitutional amendment from being "called in question in any Court on any ground" and accord precedence to the Directive Principles of State Policy over the Fundamental Rights of individuals.

Suo motu means "on its own motion," and is a Latin legal term.

 These are the opening words of the preamble of the Indian Constitution, “ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens."

Section 23 of the Indian Evidence Act talks about admissions in civil cases, when relevant.

 The term admission is defined in the Indian Evidence Act, 1872 in section 17 as an admission is a statement 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.

According to Section 141 of the Indian Evidence Act, 1872, any question suggesting the answer which the person putting it wishes or expects to receive is called a leading question.

The term 'Examination-in-Chief' has been defined in the Indian Evidence Act, 1872 in section 137 as the examination of a witness by the party who calls him shall be called his examination-in-chief. 

Section 119 of the evidence act states that a witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible as by writing or by signs but such writing must be written and the signs be made in open Court. 

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

‘Actus me invito factus non est mens actus’ means an act done by me against my will is not my act at all.

A person who may be said to be of unsound mind is an idiot or a mad man or one who is drunk.

 Robbery is an aggravated form of theft and extortion is defined under section 390 of the Indian Penal Code.

The Code of Civil Procedure applies to whole of India except Jammu and Kashmir, Nagaland and Tribal Areas.

Decision on the question of limitation, even if erroneous, operates as res judicata in subsequent proceedings.

Provisions as to the administration and control of Scheduled Areas and Scheduled Tribes are in fifth schedule of the Indian Constitution.

Section 89 of the Code of Civil Procedure, 1908 was inserted by CPC (Amendment) Act, 1999.

When two or more persons by fighting in a public place disturb public peace, they are said to commit affray.

For instituting a suit against the Government, notice should be given two months before.

The examination of a witness by the adverse party shall be called his cross-examination.

The Court of a Magistrate of first class may pass a sentence of imprisonment for a term not exceeding three years.

Under section 82 of code of criminal procedure, a person who is avoiding execution of a warrant may be proclaimed absconder.

Under Section 41 of code of criminal procedure, a police officer can arrest a person without an order from a Magistrate and without warrant.

Section 47 of the code of criminal procedure states that search of place entered by a person sought to be arrested. 

Summons, warrants and attachment and sale of property are the three processes to compel the appearance of persons before Criminal Court.

Under section 161(3) of the code of criminal procedure, the police officer may reduce into writing any statement made to him in the course of an examination under this section and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. 

 Under section 161(3) of the code of criminal procedure, the Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody (police or judicial) as such Magistrate thinks fit.

Section 225 of the code of criminal procedure states that In every trial before a Court of Session, the prosecution shall be conducted by a Public Prosecutor. 

Any dispute relating to possession of immovable property is decided by an executive magistrate only.

Section 300 of the code of criminal procedure is based on the maxim “Nemo debet bis vexari pro eadem causa”, i.e. a man shall not be twice vexed for one and the same cause.

Chapter V of the Indian Evidence Act, 1872 deals with documentary evidence.

Actionable claim can be transferred. The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent.

Where mortgagee is entitled to enjoy the benefits of the mortgaged property in lieu of interest on debt, the mortgage is called usufructuary mortgage.

A lease of immovable property is a transfer of a right to enjoy such property made for a certain time, express or implied or in perpetuity, in consideration of a price paid or promised or of money, a share of crops, service or any other thing of value.

Section 62 of the Indian Evidence act defines primary evidence as the document itself produced for the inspection of the Court. 

Under section 55 of the transfer of property act, duties of seller and buyer have been provided.The duty of seller includes to produce title deeds, to disclose patent defects and to execute conveyance.

Section 14 of the Transfer of property Act deals with rule against perpetuity.

Ostensible owner is not the real owner, but the real owner of the property permits him to hold himself out as a real owner. 

The period of limitation for filing of a suit on the basis of a promissory note from the date of its execution is three years.

The limitation period is twelve years in a suit by a landlord to recover possession from a tenant after the date when the tenancy is determined.

Section 17 of the Limitation Act takes within its ambit concealments, frauds and mistakes.

^{For a review of judgement by a Court other than the Supreme Court, from the date of the decree or order, the limitation is thirty days. It is provided under article 124 of the Limitation Act.}

‘Time requisite’ under Section 12(2) of the Limitation Act means actual time taken.

Article 14 (1) of the Limitation Act states that in computing the period of limitation for any suit, the time during which the plaintiff has been prosecuting with due diligence another civil proceeding, whether in a court of first instance or of the appeal or revision, against the defendant shall be excluded, where the proceeding relates to the same matter in issue and is prosecuted in good faith in a court which from defect of jurisdiction or other cause of a like nature, is unable to entertain it. 

The period of limitation for setting aside a sale on execution of a decree is thirty days. It is provided under article 127 of the Limitation Act.

Section 17 of the Limitation Act only talks about suit and application. An application may be for execution of decree. It does not talk about an appeal.

The limitation period in a suit by a surety against a co-surety when the surety pays anything in excess of his own share is three years.

In computing the period of limitation for an appeal, a review or revision, the time requisite for obtaining a copy of the decree or the order appealed against shall be excluded under section 12 (2) of the limitation act.

Under section 59 of the Indian Succession Act, 1925, A executes an instrument purporting to be his will but he does not understand the nature of the instrument nor the effect of its provisions. This instrument is not a valid. It is an invalid will.

Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then for all purposes affecting succession to property, it shall be presumed, until the contrary is proved, that the younger survived the elder. It is a rebuttable presumption of law because the words are used "shall presume". 

In the case of Vallikannu Vs R. Sengaperumal, A. I. R. 2005, the Court by going negatively with women’s right to property, disqualified the daughter-in-law's right to father-in-law's property on the ground that the son had murdered his own father.

For the purpose of succession, there is no distinction between those who are related to a person deceased through his father and those who are related to him through his mother.

Under Section 112 of the Indian Succession Act, 1925, it is provided that where a bequest is made to a person by a particular description, and there is no person in existence at the testator’s death who answers the description, the bequest is void.

Schedule V of the Indian Succession Act, 1925 deals with form of caveat.

Section 14 of the Hindu succession act provides for property of a female Hindu to be her absolute property. Property here means any property whether movable or immovable. 

 A suit for possession under Section 5 of the Specific Relief Act can be filed within 12 years. It is provided under article 65 of the Limitation Act.

If the same specific thing is bequeathed twice to the same legatee in the same will or in the will and again in the codicil, he is entitled to receive that specific thing only. B is entitled to one legacy of 5,000 rupees only.

No such time limit has been fixed.

Under the Specific Relief Act, a suit for recovery of possession can be filed in respect of both movable and immovable property.

A claim for damages in suit for injunction can be laid down under Section 40 of the Specific Relief Act.

Specific relief can be granted only for the purpose of enforcing individual civil rights and not for the mere purpose of enforcing a penal law. So, obligation under specific relief act is right in personam.

Section 11 of the Specific Relief Act, 1930 provides for cases in which specific performance of contracts connected with trusts is enforceable.

Section 34 of specific relief act states discretion of court as to declaration of status or right. So, declaration always lies in the discretion of the court. Thats why it can be declined.

Section 8 of the specific relief act states that 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 a suit under section 6 of the Specific Relief Act, the Court canot adjudicate on title. It adjudicates on the possession. The court does not direct defendant to remove the structure or to plaintiff to pull down the structure.

Under section 12(2) of the specific relief act where a party to a contract is unable to perform the whole of his part of it but the part which must be left unperformed by only a small proportion to the whole in value and admits of compensation in money, the court may at the suit of either party, direct the specific performance of so much of the contract as can be performed and award compensation in money for the deficiency.

The term ‘donatio mortis causa’ refers to a death-bed gift made by a dying person or othwerwise in contemplation of death and conditional thereon with the intent that the person receiving the gift shall have the thing if death ensues.

Right of redemption is the right which every mortgagor possesses, which is created by virtue of the mortgage deed.

Doctrine of redemption is based on a rule of justice, equity and good conscience.

Section 35 of the transfer of property act deals with doctrine of election.

In order to convert a proposal into a promise, the acceptance must be absolute and unqualified.

Contract of adhesion is a standard form contract drafted by one party and signed by the weaker party who must adhere to the contract and therefore, does not have the power to negotiate or modify the terms of the contract.

 An agreement to do an act impossible in itself is void. A agrees with B to discover treasure by magic. The agreement is void.

A contract of guarantee may be oral or written. It may even be inferred from the course of conduct of the parties concerned.

Under section 150 of the contract act, if such goods are bailed for hire, the bailor is responsible for such damage whether he was or was not aware of the existence of such faults in the goods bailed. 

If the promisor prior to the due date of performance absolutely refuses or disables himself from the performance of obligations, it is anticipatory breach of contract.

If a person is employed by and acting under the control of the original agent in the business of agency, he is known as sub-agent.

A "contingent contract" is a contract to do or not to do something, if some event, collateral to such contract, does or does not happen. A contracts to pay B Rs.10,000 if B's house is burnt. This is a contingent contract.

The general rule of law is "no consideration, no contract", i.e. in the absence of consideration, there will be no contract. However, the law recognises the following exceptions to the rule of consideration. Under Section 185 of the contract act, no consideration is necessary to create an agency.

Every agreement of which the object or consideration is unlawful is void.

'Heir' has been defined under section 3(f) of the Hindu Succession Act, 1956, as any person, male or female, who is entitled to succeed to the property of an intestate under this act.

On 9 September 2005, the Hindu Succession (Amendment Act), 2005 (Amendment Act) came into effect and daughters in a joint Hindu family, governed by Mitakshara law, were granted statutory right in the coparcenary property of their fathers.