1) 2) 3) 4) 5) 6) 7) 8) 9) 10) CONTRACTS - Il What is meant by "Bailment"? And what are the essential requiréiients of a contract of Bailment under Indian ContractAct? Discuss the Rights and Duties of Bailor and Balilee ? Define the term "The Finder of Goods" under Indian ContractAct? Define Pledge and what are the essential requirements ofa valid pledge ? Explain the rights of surities against the creditor, principal debtor and Co-surity ? 4 ’ Whatis a contract of Agency ? Essentials. Whatis Sale ? Define Caveat Emptor? Nemo Dat Quad Non Habit ? and State Exceptions ? Explain the rights and lial ies ofa Minor Partner? Partnership is the relation between persons who have agreed to share the profits of Business Carried on by all or any of them acting for all-discuss ? Snes TMT ee Q.1: What is meant by “Bailment" And what are the essential requirements of a contract of bailment under Indian ContractAct. Ans: The term "Bailment" is derived from a French word “Bailer” meaning to give orto delivery. Section 148 under chapter IX of the Indian Contract Actdeals Definition “The term Bailment means delivery of goods by one person to another for some purpose upon a contract that they shall, when the purpose is accomplished, be returniéd or otherwise g to the directions of the person delivering them". BAILOR: Aperson who delivers the goods is called a Bailor. BAILEE: Aperson to whom the goods are delivered is called aBailee. BAILMENT: The transaction between the Bailor and the B: called Bailment. ILLUSTRATION 1) Alends his motorcycle to B for his use. 2) — Agiveshis radio set toa mechanic for repairs.ESSENTIAL CHARACTERISTICS OF BAILMENT 1) There must be delivery of goods by one person toanother. 2) The delivery of goods must be for some purpose. . 3) The bailmentis based ona contract between the parties. CONTRACT: A bailment is usually created by an agreement between the bailor and the bailee. The agreement should be express or imp! ied. DELI ) ESSION A bailment necessarily involves deliver possession of goods by bailor to bailee. The delivery of possession may be actual or constructive or symbolic. The actual delivery may be made by physically handing over the goods bailed to the bailee. The constructive or symbolic delivery means. ‘transferring possession to the bailee without actually handing over the goods physically’. fg :- the delivery of a railway receipt amounts to delivery of the goods. FOR SOME PURPOSE: The purpose compulsory, if the goods are delivered by mistake a to a personisno bailment. RETURN OF SPECIFIC GOODS: Once the purpose is achieved, the goods should be returned or disposed of according to the directions’ ‘of the bailor. Ifthe goods are not to be specifically returned there isno bailment. In the process of bailment, possession passes from the bailor to bailee and not ownership: eee The Bailmentis classified into : : 1) Gratuitous of Bailment: A gratuitous bail is one in which bai passed with no consideration between the bailor ~and the bailee. 2) Non-gratuitous Bailment: It is'a bailment for rewarded and where some consideration passes between the bailor and the bailee. .DISTINCTION BETWEEN BAILMENT AND SALE BAILMENT 1) Inbailment, possession is transferred. 1) In sale, possession of goods and ownership are transferred. 2) The bailment is concerned with movable goods. 2) In sale, both movable and immovable goods are effected. 3) It may be even gratuitous. 3) It should have a price or consideration. 4) The bailees has to return tHe goods to the bailor or has to pose of according to his directions. Q.2: Discuss the Rights and Duties of Bailor and Bailee. Ans : The Section 148 - 171and 180 - 181 of the Indian Contract Act lay down the provisions relating to Rights and Duties of the Bailor and the Bailee. ARight of the Bailor becomes the duty of the Bailee.A right of the Bailee becomes the duty of the Bailor. RIGHTS OFABAILOR: 1) The bailor has the a right to claim in case of . mixed goods. 2) The bailor has a right to claim, the return of goods or their loss. 4) On sale, a buyer need not return the goods to the seller. The bailor has a right to receive increase or profit from goods bailed. The bailor has a right to claim damages if any wrongful use of the goodsis made. 7 OF ABAILOR: To disclose the known facts. ‘To bear extraordinary expenses of bailment. In case of premature termination, the bailor has tocompensate the bailee. To receive back the goods. To indemnify the bailee, where the title of the bailor to the goods is defective and the bailee Suffers as a consequence, the bailor is responsible to the bailee for any loss which the bailee may sustain by reason that the bailor is not entitled to made bailment or to give directions respecting them. TIES OF ABAILEE: 2. 3) 4) 5) 6) To take reasonable care of the goods bailed. Not to make any unauthorised of goods. Not to mix the goods bailed with his own goods. Notto setup an adversetitle. To return any accretion to the goods. To return the goods.The duties of a bailor are the rights of a bailee. As such, the a bailee can, by suit, enforce the duties of a bailor. The other rights ofa bailee are : 1. Delivery of goods to on 'f several joint owners of goods bail them, the bailee may deliver them back to, or according to the directions of, one joint owner without the consent of all, in the absence of anyAgreementto the contrary. q The bailor has no title to the goods, and the bailee, in good faith, delivers them back to, or accord ing to the directions of, the bailor, the bailee is not responsible to the owner in respect of such delivery. 3. ight to aj Ifa person other than the bailor, claims goods bailed, the bailee may apply to the Courtto stop the delivery of the goods to the bailor, an to decide the title to the goods. 4. ight of action If a person wrongful deprives the bailee of the use or possession of the goods bailee to him, he has the right to bring an action against that party. The bailor can also bring a suitin respect of the goods bailed. TERMINATION OF BAILMENT ated in the following When a bailmentis for a specific period, it terminates on the expiry of that period. When the bailment is for a specific purpose, terminates as soon as the purpose is achieved. Dist Abailment is terminated when the subject matter of the bailment or is destroyed is by reason of a change in its nature becomes incapable of use for the Purpose of the bailment. Death of the bailor or the bailee: A gratuitous bailment is terminated by the death either of the bailor or of the bailee. Define the term "The finder of goods' ContractAct? Ans : Finder of the goods Section 71 defines the finder of the goods. Qa. under Indian Aperson, who finds goods belonging to another and takes them into his custody is subject to the respon: ity as bailee. Section 168 & 169 of the Indian Contract Act 1872, explain the position of "finder of Lost Goods" the contract act imposes th duty on a finder of goods to perform his duties with regard to them as if he was a bailee entrusted with such goods. A finder of good, in civil law, is fixed with the ies ofa bailee.Punishment under IPC :- Section 403 of the Indian Penal Code, 1860 deals with the liability of a person, who misappropriate a thing of which he is finder, shall be punished with imprisonment of either description for a term which may extend to 2 yrs. or with fine, or with both, Ex :- A finds a cheque payable to bearer. He can form no conjectre as to the person who has lost the cheque. But the name cheque appears. A knows that ths person can direct him to the person in whose favour the cheque without:attempting to discover the owner. He is guilty of an offence under section 403 of IPC. id Duties of afinder of. 1) ‘He is a bailee. He has to perform all.the “essential duties of a bailee imposed by law. 2) He musttake reasonable care of goods found ifinspite of reasonable care the goods are lost or destroyed, he is not liable for any loss. 3) | Hemustnot mix the goods with his own. 4) He must make reasonable efforts to find the true owner of the goods. 5) He must not use the goods for his own purpose. hts of Finder ofthe Goods 1} Right oflien, i.e. right to retain the possession against the owner until he recovers the compensation for the trouble and expenses. an 2) — Rightto sure for reward for the return of goods lost. 3) Right to sell the goods in certain ircumstances. specific reward. He may sue for specific award offered by the owner of the goods. Section 168 of the contract explains that the finder of goods has no right to sue the owner for compensation for trouble and expenses voluntarily incurred by him to preserve the géods and to find the owner; but the main retain the goods against the owner until he receives such compensation and where the owner has offered as a specific reward for the return of goods lost, the finder may sue for such reward and may retain the goods until he receives it. ion of Bailment:- cases :- 1) When a bailment is for specific period it terminates on the expiry of that period. 2) ievement of the object When the bailment is for a specific purpose, terminates as soon as the purpose is achieved. 3) Distr Abailment is terminated when the subject matter of the bailment (a) is destroyed (b) by the reason of achange in its nature becomes incapable of use for the bailor of the bailee. tion of the subject matter: "| 4) Deathofthe bailor or bailee :- A gratuitous bailment is terminated by the death either of the bailor of the bailee. Lien Lien means a right of one person to retain possession of some goods belonging to another un some debt or claim of the person in possession satisfied. Possession is essential to the creation of lien, and the possession mustbe (a) Fight ful (b) Not fora particular purposed and (c) Continuous. Right of lien may arise (a) By Statute or (b):By Express or implied contract, or (c) By a general course of dealings between parties ina particular trade. Alienunder the contract act may be 1) Aparticularlien or 2) generallien Particular Lien section 170 Aparticular lien is one which is available to the bailee against only those goods in respect of which he has render from service involving the exercise the labour or ski Bailee’s Lien Where the lawful charges of the bailee the respect of the goods bailed are not paid he may retain the goods this right of the bailee to retain the goods is known asa particular lien. 12 General Lien Section 174 AGeneral Lie ht to retain all the goods or any property (which is possession of the Holder) of the another until the claims of the holder or satisfied this is a right to retain the property of another for ageneral balance of account. 3 For example if two securities or given toa banker butloan is taken only against one of te securities the banker the retain both the securities until is client is satisfied Ex. the bankers policy brokers. . Ans: Chapter IX sec. 172 - 179 of the Indian contract act 1872 defines the pledge. DEF : A pledge is a special kind of bailment. the bailment of goods as security for payment of a debt or performance is called pledge. The bailoris called pledger or pawner and the bailee is called the pledge or pawnee. The word pledge is also used to describe the article or articles of personal property thus delivered by one person to another as security for the debt or obligation, the thing deposited as a security is called a pawn. or pledge. Essential: 1) | Thegoodsmustbe to be pledge. 2) | Thegoods mustbe delivered tothe pledge. 133) Such delivery should be secure a debt or performance ofa promise. 4) There must be a contract between Pawner & Pawnee. 5) Thetontract of pledge may be written or oral. 6) The pledge may keep the pledged goods till debtis fully discharged or the promise is performed. Ex :- A barrows the money 2,000/- Rs. from B and keeps his watch as security for payment of the debt, the bailment of a watch is a pledge. Any kind of movable property i.e. goods, documents or valuables & a saving bank pass book may be pledged. Butdelivery is necessary to complete a pledge. " The delivery may be aetual or constructive. | LEDGE BY NON OWNER | Section 178 & 178-Aof the Indian contract act, 1872 lays down the provisions that pledge can be created over goods by persons who are not their owners. The genera tule is the owner who can ordinarily crate a valid pledge. Butin the following cases even a non owners can create a valid pledge. PLEDGE BY MERCANTILEAGENT The term Merchantile agent is defined in sec. 2 (9) of the sale of goods act, 1930. Mercantile agent means a Mercantile agent having a in the customary course of | business as such agent authority either to sell goods or | 14 toconsign goods for the purpose of sale or to buy goods or toraise money on the security of goods. Where a Merchantile agent is with the consent of the pawnor in the possession of goods or the documents Of title to goods any pledge made by him, when acting in the ordinary course of business of a Merchantile agent, is a valid as if he were expressly authorised by the owner of the goods tomake the same. ‘ Pled seller or buyer in A Seller left in possession of goods.after sale anda buyer who obtains possession of goods in good faith and has no notice of the previous of goods to the buyer. 3) Pl hi ited in “Wherea person pledges goods in which he has only a limited interest, the pledge is valid to the extent of that interest(ex :- finder of goods). jossession under a Where a person obtains possession of goods under a voidable contact the pledge created by him is vali provided 1) The contract has not been rescinded before the contract of pledge & 2) The pawnee acts in gods faith and without notice of the pawnor defect of title. 15principal debtor- discuss ? . Ans : Section 128 of the Indian contract act 1872 explains the basic principle of guarantee, the liability of a surity is co-extensive with that of the principal debtor a conctract of guarantee is a contract to perform the promise or discharge the liability of a third person on case of his default. The person who gives guarantee is called the-surity. The."person in respect of whose default” the guarantee is givenis called the principal debtor. The person to whom the guaranties given is called the creditor. The guarantee may be either oral or written a contract of guarantee requires the concurrence of three personsitis tripartite agreement. Nature of surities liability Co-Extensive means in equally extending this means the surity is liable for what the principal debtor is liable. The liability of the surety can neither be more nor never than thatif the principal debtor, but never greater. The cardinal rule is that the surety must not be liable beyond the terms of his engagement where the 16 agreement is void as in case of a Minor's Agreement jor agreement is abinito) the surity is liable as a principal debtor, for a such a case the contract of surity is nota collateral contract, but a principal contract. The primary liability in a contract of guarantee is that of the principal debtor IInd is surety unless it is otherwise provided by the contract means at the time of the contract of guarantee the surety may put certain stipulation. And conditions limiting his liability or manner in which the creditor should proceed to realise. The creditor may choose to proceed against the surety first unless there is an agreement to the contratry the creditor may omit to sue the debt or and sue the debt or sue only the surety. | Rights of Surety “41) — Asurety has rightag: 2) 3) ~~ Co-Surities. Against creditor Before payment of the guaranteed debt a surety may after the guaranteed debt has become due and before is called upon to pay require the credeitor to sue the principal debtor. st one creditor. Principal Debtor. Righto Set - Off: On being sued by the creditor the surety can rely on any set-off or counter claim which the debtor has against the creditor. 47ist the creditor Q.: Explain the rights of a surities ag; principal debtor and co-surity. OR Sutity as liability is co-surities against the creditor principal debtor- discuss ? ° Ans : Section 128 of the Indian contract act 1872 explains the basic principle of guarantee, the liability of a surity is co-extensive with that of the principal debtor a conctract of guarantee js a contract to perform the promise or discharge the liability of a third person on case of his default. The person who gives: guarantee is called the-surity. in respect of whose default” the called the principal debtor. The person to whom the guaranties given is called the creditor. The guarantee may be either oral or written a contract of guarantee requires the concurrence of three personsitis tripartite agreement. Nature of surities liability Co-Extensive means in equally extending this means the surity is liable for what the principal debto ‘able. The liability of the surety can neither be more nor never than thatifthe principal debtor, but never greater. The cardinal rule is that the surety must not be liable beyond the terms of his engagement where the 16 agreement is void as in case of a Minor's Agreement (Minor agreement is abinito) the surity is liable as a principal debtor, for a such a case the contract of surity is not acollateral contract, buta principal contract. The primary liability in a contract of guaranteé is that of the principal debtor lind is surety unless itis otherwise provided by the contract means at the time of the contract of guarantee the surety may putcertain stipulation. And conditions limiting his liability or manner in which the creditor should proceed to realise. The creditor. may choose to proceed against the surety first unless there is an agreement to the contratry the creditor may omit to sue the debt or and sue the debt or sue only the surety, Rights rel 4) Asuretyhas rightagainstone creditor. 2) Pri 3) Co-Surities. pal Debtor. inst creditor Before payment of the guaranteed debt a surety may after the guaranteed debt has become due and before is called upon to pay require the credeitor to sue the principal debtor. Right o Set - Off: On being sued by the creditor the surety can rely on any set-off or counter cl: which the debtor has against the creditor. 47Where a guaranteed debt has become due and the surety as paid all that he is liable for, he invested with all the rights which the creditor had against the principal debtor. “on payment of the guaranteed debit the surety steps into the shoes of the creditor it is called the subrogation”. Against Principal debtor of liabili has been made, the surety can compel the principal debtorto relieve him from liability by paying offthe debt. ight to be relie of before the payment After the surety makes payment under the guarantee, he becomes a creditor of the principal debit and can recover from the latter the amount he has paid with interest. If the surety stains any damage beyond the amount paid, he can recover that damage also. Rightagainst Co-surities :- When a debtis guaranteed by two or more sur‘ they are called co-surities, the co-sureties are liable to contribute, as agreed towards the payment of the guaranteed debt. When one of the co-sureties makes payment to the creditor, he has a right to claim contribute from the co-sureties or co-surety. uall Co-sureties liable to contribute Where the co-sureties have agreed to guarantee different sums, they have to contribute equally subject to 18 the maximum of the amount guaranteed by each one. The sureties are liable jointly or severally under the one contract or served contracts, or without knowledge of each others is immaterial. Unit - Il , Topic - (Agency) Whatis acontract of Agency ? Essentials Definition of Agent :- Section 182 of the Indian contract act defines an agent as “a person employed to do any act for another or to represent another in dealing with third persons". Def, of Principal :- The person for who such actis done or who is'so represented is called the principal. The contract which creates relationship of principal and agentis called "Agency". Ex :- A appoints B to buy 100 bales of cotton his behalf, A is the principal and B is his agent. The relationship between theA & Bis called agency. that any person may become an agent. The function of the agents to bring his principal int contractual relations with third persons. That means ai agent is mearly connecting link between the principal é third parties. Any person who is the age of majority according t the law to which he is subject, and who is of sound mind may employ an agent. 194) Minors, 2) persons in a state of unsound mind; & 3) persons who are disqualified from contracting by law, any law, to which they are subject are not competent to contract. ration is not a Creation of Agency may be in any of the follov modes. 1) Agency by express agreement. 2) Agency byimplied agreement. 3) ) Agency asnecessity. 4) Agency of ratification. Short Notes ‘ Doctrine of "Delegatus non potest Delegare' The general rule of law is that an agent cannot delegate his authority or duties to another without the consent of the principal. This rule is expressed by the maxim "Delegated moy protest delegare”. This means the delegated powers cannot be further delegated. The agent himself is the delegate of the principle. As such, he cannot further delegate his powers. 20 Sale? What Sale is a contract whereby the seller transfers or agrees to transfer the property or ownership in goods to buyer for price. This definition applies to sale and agreementto sel é 'SSENTL IF SALE :- 1. Two parties. In sale seller‘and buyer i.e. two parties required one cannot purchase his own goods. 2. The subject matter of sale is movable goods: Itincludes Water, Gas, Electricity etc. 3. The ownership must be transferred or agreed totransfer. _4,* The consideration of sale should be the price. If goods are exchanged for goods itis barter but not sale. Sale = 2 Parties + Movable Goods + Transfer the owner ship to buyer + price. E - Vs - AGREEMENT TO SELL 1) Sale is executed contract. 1) Executory or future contract. 2) In sale buyer is owner. | 2) Selleristhe owner. 3) Ownership is already passed to buyer. 3) Ownership will pass in future date. 214) If goods are damaged the loss has to be borne by buyer because he is owner. 4) Loss is to be borne by seller. 5) Sdle is liable to Sales Tax. 5) Notliable for Sales Tax. 6. Itis a contract of present goods. 7. Insale the seller cannot re-sell the goods. 6) It is a contract of future goods. 7) The seller can re-sell the goods. 8) If buyer becomé | insolvent the seller need not handover the goods to the official receiver. 8. If buyer becomes insolvent then the seller should returned the goods to official receiver. CONDITIONS AND WARRANTIES: In a contract of sale there may be many terms. All terms may not have equal importance. those terms having much importance are called conditions and less importance are called warranties. Every condition is a term, but every term is not a condition. Because it may be warranty. eg :- One lady orders for Red Colour Saree. The saree should be sent on or before 15th August on her marriage day. It should be sent through Regd. post only. The above example, colour of the saree and time of delivery are conditions. Sending through Regd. postis a warranty. 29 Whether a term is a condition or warranty depends on agreement. Inthe absence of agreement it depends on facts of the case and nature of contract. WARRANTY CONDITION 1) Itismuchimportant. less important. 1) 2) The remedy for breach or warranty is to claim damages only. 2) For breach of condition the remedy is to annual the contract and claiming damages. 3) Breach of warranty 3) Breach of condition can cannot be treated as be treated as breach of warranty. eg :- If lady adjust with white saree: IMPLIED CO! In the absence of express agreement for sale, law provides certain implied conditions and warranties, which should be followed by the seller. IMPLIED CONDITION :- 1. Implied condition as totitle. Eg :- Seller must have title to the goods. He must be the owner of the goods, otherwise it amounts to breach of implied con 2. Sale by Sample :- When goods are sold by showing the samples the bulk of the good should correspond with sample, otherwise it 23amounts to breach of implied condition. Sale by Description :- When sale is made by description the goods sold should correspond with description. Eg :- 1989 Model Car is giving mileage 90 kms. perlitre. 4. Sale le as The goods sold should correspond with sample as well as description. Eg :- Masoori Rice and Sona Masoori Rice. It means the goods sold must be good quality goods. It should be ! fitfor human consumption. Eg :- The bread should not contain stones which damages teeth. CAVEAT EMPTOR:- It means buyer beware. It is the duty of the buyer to select good quality goods suitable to his purpose. This is an exception toimplied condition - merchantable quality. IPTORAPPLIES :- 1) When there are different purposes with one article. It is the buyer who has to select the goods forhis purpose. Eg :- Cloth can be used for packing, wearing to cover the dead bodies. The buyer has to select the goods suitable to his purpose. 24 2) When buyer opts trade name, Caveat Emptor applies. WHEN CAVEAT EMPTOR DOES NOTAPPLY : 1) When there is a single purpose with one article Caveat Emptor does not apply. It is the duty of the seller to give good quality goods. 2) When buyer relies the judgement of seller the | Caveat Emptor does not apply. IMPLIED WARRANTIES :- 1) The goods sold should be free from encumbrances. It includes hypothecation. * charge, pledge. 2)* The possession of the buyer should not be $ disturbed. 25UNIT -IV Q.: Nemo dat quad non Habit? ‘and state exceptions ? OR “No one can pass bettor title to goods than what he himself if has" Explain? 5 Section 27 to 30 Explains about "Transfer of Title". Ans: Meaning :-_Neno dot quod no habet means no person can pass a better title than what he has. Section 27 is to protect the property form mishandling. The owner of the property is entitled to | transfer ig title. A person, who is not the owner of the property, is notentitled to sellit. Exemptions Where the true owner by his conduct, an act or an omission, leads the buyer to believe that the seller was the authority to sell and includes the buyer to buy the goods, he shall be estopped form derying the fact of want of authority of seller they buyer is such cases get a better title than that of seller. 2) Sale bythe Mercantil Agent:- “The buyer of goods from a mercantile agent, who has no authority from the principal to sell, gets a good title tothe goods if. a) The agent is in possession of goods or document. b) The agent sells the goods while acting in the ordinary course of business of mercantile agent. 5 c) Thebuyeracti good faith and d) The buyer has not at time of the contract of sale notice that the agent has no authority to sell. 3) Sale by the buyerin ossession after sale : Where a person, having brought a agreed to buy goods obtains, with the consent of the seller, possession of the goods or documents of title to the goods and sell them either himself or thought an agent, the buyer, who acts in good faith and without notice of any lieu or other right of the original seller in respect of the goods, gets a good title. 4) SalebyAgent When Agent transfers the goods to transferee then transferee receives good title if he has no knowledge about the defective title ofthe agent. 5) npaid seller :- seller is a person to whom amount is due. | unpai ler resells the goods the transferee receives good title. 6. Saleby official receiver. 277) Saleby customs authority. 8) Sale by a person who receives under voidable contract. 9) Salein Market. 10) Sale by a finder of goods under certain ircumstances. Sec 169 of Indian Contract Act 1872. 11) Sale by: pawnee or pledge under certain ‘cumstances. 12) Sale by an official receiver or official assignee or iquidator of company. o In all'the above cases of the seller, even though he is not the owner of goods, sells the goods the buyer gets validtitle. * Q.: Who is unpaid seller ? Explain his rights for recovery of price due ? Ans: Section 45 to 54 of the sale of goods act, 1930 Explains about "Right of unpaid seller against the goods". Aselleris deemed to be an unpaid sellerwhen A) The whole of the price has not been paid or tendered. B) A bill of exchange of negotiable instrument has bee received as conditional payment, and the condition for which it was received, has not been fulfillment by the reason of the dishonour of the instrument or otherwise sec. 45 (1). Seller means not only the actual seller, but also any person whois in the position ofa seller. Ex :- Any agent of seller, whom a bill of lading was endorsed, ora consignee. Right of Unpaid Seller :- z The unpaid seller has rights ngwont the buyer and against the goods. 1) Again: a) Suitforprice. b) — Suitfordamage. c) Suitforbreach of contract. 1) Lien means right to retain the goods till he is paid whole price of the goods. 2) ~The unpaid seller has a particular lien but not generallien. If goods are sold on credit basis the unpaid seller cannot exercise right of lien. Within the credit time, if buyer become insolvent, the unpaid seller can exercise the rightoflien. 3) Hfpossessionis lost, right oflienis lost.joods in transit :- If goods are delivered to buyer or buyers agent, the unpaid seller cannot stop the goods, because if the possession is lost, right of lien is lost. The right of stoppage in transitis nothing but extension oright oflien. When goods are delivered to sellers agent or neutral agent, the unpaid seller can stop the goods or can exercise the right of lien even though the goods are in transit. ight of Re-Sale :- The unpaid seller after guising notice of resale has right to resell the goods. If there is any loss from that resale the unpaid seller can recover the loss from the buyer. If there is any profit from resale, hence not hand over the profit to buyer. Because one cannot take the advantage of his wrong. if notice is not given to buyer, the profits on resale should be given to the buyer and the unpaid seller cannot claim the loss of resale. UNIT -V Q.: Explain the rights and lial minor partner ? ies of Ans: Section 10 of the Indian Contract Act 1872 explain that all agreements are contracts if they are made by 1) the free consent of parties, 2) competentto contract, 3) for alawful consideration and a lawful object & 4) are nothere by expressly declared to be void. Section 3 of the Indian Majority Act, 1875 defines 30 the minor every person domiciled tn India shall De deemed to have attained his majority when he shall have completed his age of 18 years, and not before. A minor is not a competent person to enter the contract. The partnership arises form contract; ,and not from status. Section 30 of the partnership act 1932, permits minors to he admitted as partners to the benefits of partnership. At the same time, it lays down the necessary provisions safe guarding’ the minors from exploitation. Essential . Aminor, admitted to the benefits of partnership has aright to such share of the property and profits of the firm as may be agreed upon. Rights of Minor Right 1) ‘Aminor, admitted to the benefits of partnership has ht to such share of the property and profits of the firm as may be agreed upon. 2) ight to access and inspect accounts :: Minor has right to have access to and inspect and copy any of the accounts of the firm. Only but not other books notother books and materials. The principle of principal and agent of law of agency 31shall apply to the partners of the firm. Each partner is also personally liable to the other. Minor exempts from personal liability. Section 30(3) says such minor's shareis liable for the acts of the firm, but the minor is not personally liable for any such act. 4) nt to sue for accountan:- A minor has a right to sue the partners for an sccount or payment of his share of the property of profits of firm. LIABILITIES OF R A minor is not personally liable for any acts“of the firm. But his Share is liable for the acts of the firm. 2 Liabilit after attaini Aminorafter obtaining majority has a rightto electto become partner or not to become partner. He ha to elect with in six months after obtaining majority then he has to give public notice. | When minor elects not to become a partner his liabilities continue to be the same as that of minor upto date of public notice. Q.: Partnership is the relation between persons who have agreed to share the profits of business carried on by alorany of them acting forall - discuss 2? OR Défine partnership what are the essential element of partnership form ? 32 Ans : Section 4 to 8 of the partnership act, 1932 defines partnership, partner, firm & firm name. Definition :- Partnership is the relationship between persons who have agreed to share the profit of a business carried on by al or any of them acting for all persoris who have entered into partnership which there business is carried onis called the firm name. itial of Pal hip :- Agreement :-Agreement require minimum two parties, | the maximum number for the partnership business is 20 | as regards the maximum numbers of partner in a firm, section 11 of companies act 4956 provides that the number of partners in a firm carrying on banking business should not exceeds 10 and any other business 20. Partners must be a major. Partnership in a result o an agreement only. Firm is not a legal person so firm cannot be come a partner. A company, corporation is a legal person soit canbecome partners. An agreement become the partners is the basis of the contract the agreement may be express or imp| d the agreement may be for fixed period or execution of particular advancher or it may give opinion to partners to withdraw firm partnership is the created by contract. Partnership agreement any other contract must have all essential elements of valid contracts. Business means there must be series of transaction,. The world business generally convey the or running business involving numerous transaction. The business to be carried out by 33firm must be legal, club is not a firm because there is no business. Business include every trade occupation and profession. aring Profits :- Every partner must have an authority to share the profits. The object of partnership must be to make profits. Profits must be distributors among the partners in an agreed ratio. However a person who share the profits need not be a partner. Ex :- Money Lender. 4) Mutual Agen r double role :- The business of partnership may be carried by al the partners or any of them acting for all. A partners is both an agent and principal. A partner can bind the other partners similarly a partner istiable for other partners fraud. 4 ? 5) Who may be a partner :-Acontract of partnership may be entered in to by every, person who is competent to enter into contract. i= Alien enemy cannot entered into a contract of partnership with an Indian citizen. Persons of un si id mind :- A person unsound mind is not competent to enter into a contract of partnership. jinor :- A minor cannot become a partner in a firm but the consent of all other partners, he may be admeted to the benefits of partnership. Corporation :- A registered company can enter into a contract of partnership as a single individual. Paper - Il: Family Law - Il (Muslim Law and Other Personal Laws) 351) 2) 3) 4) | ° | MUSLIM LAW - Il Source of Muslim Law. a Whatare the various Schools of Muslim Law ? Whatis Dower mehrAccording to Muslim Law? What are the essential requirements of a valid marriage under Muslim law? Explain the grouds of divorce appl jicable to muslim women under the dissoution of muslim marriage: act 1939? 36 SHORT NOTES |. SOURCE OF MUSLIMLAW The following are the main sources of MuslimLaw. 41. Holy Quran, 2. Sunna 3. Ijmaa 4. Qiyas Of these four sources, Holy Quran is the main source of Muslim Law. 4.) Holy Quran: Holy Quran is the revealed and bestowed Book of Allah. It is the main source for dealing the matters of marriage, inheritance, divorce, will etc., It contained above 5000 verses and of these, 200 deal with rules and principles of Law. Itis considered by many islamic scholars as a code of law. The Holy Quran is considered and treated as the highest authenticity. I THE DIFFERENCE BETWEEN. IJMAAAND The “limaa” is a consensus of opinions of the companions of the prophet. Ijmaa is a narration of explanation elucidations and the decisions given by the companions of the prophets. 7The Qiyas ts a analytical reasoning. Reasoning by individuals is given importance and for any issue the principle of reasoning is used for knowing the truth in it. The prophet had given much importance to customs. The customs of prehistoric period had a say in the matters of administration of justice. Many of the customs were broughtinto the Islamic Law. The essentials ofa valid custom are: It should bé reasonable and be in conformity with the principles of justice. It should not be against the principles of Holy Quran. It should be immoral and enjoyed Peacefully. It contained more than five thousand verses and of these verses, two hundred verses contain the rules and principles of law. The principles of law are so elaborate that one need not refer to any law for dealing with matters heritance, guardianship, marriage, dower, _ divorce, will etc., Some jurists opine that the Holy Quran is a code of law, butin fact, itis not a code and its preacher - prophet Mohammed was not a law giver. Yet the Holy Quran is the highly regarded and venerated authentic book. Best owed byAllah. 2.SUNNA The term "Sunna” conveys: 1. Utterances, Deeds and Practices of Prophet. 2. Away of action, ora kind of precedent. 38 The Sunnas ar elike "Upanishads's of Hindu religion. The utterances and words spoken on the way of ing by the companion, successors of prophet or from the proceedings of a general gathering of the "Ulemas"-A religious leader of a religious congregations of Ulemas. SUNNISAND SHIAS: The Sunnas are divided into many groups as “Sunnis” also called "Hanafis" and "Shias"/ SUNNIS: The Sunnis or Hanafis adopt all the sayings of successors of the prophet. SHIAS: The Shias sect deviate from proceedings adopted by Sunnis. The Shias do not give credence to a Sunna or an Utterance, unless it comes from the kith and kin of the prophet. The Sunnis and the Shias derive much from Holy Quran which is placed in high religious esteemed by all muslims. 2.1JMAA: The term "“Ijmaa" denotes the ‘consensus of opinions’ of the companions of the Prophet. The opinions can either be explanations, elucidation, utterances or decisions of the disciples of the prophet. The 'Hadis' - a new terminology says of the utterances of prophetas : "People who followed need not agree on any wrong 39Thisis the basis of the "Ijmaa”. The prophet gave much importance to changing times and new issues or problems which need new decisions. The "Ijmaa” in fact can be termed as ‘Religious Legislation’. 4 YAS The term "Qiyas" is the last of the four sources of Islam. Itis baséd on the sense of reasoning. The meaning of "Qiyas" equates with the meaning of “Judicial Discretion" of English Jurisprudence. It is a term borrowed from a jewish word "HIQQUISH" meaning ‘to cong iogetner. On the meaning of Qiyas, it is interesting to note an intellectual and logical conversation that took place between the prophet who appointed one of his companions as Governor of a province to administer justice. During his times, there were no trained lawers. When the prophet asked companion as to how he would administer justice, his companion replied that he would followed the scriptures of God, if there were no such tures of God, he would go by the trad Messenger of God and even in the absence of tradition, he said, he would interpret with his reason. The application of Qiyas is nothing but the application of intuition. This might lead to a narrow reasoning. The Qiyas is accepted by the Sunnis and the Shias had rejected the source of Qiyas. 40 |. 2: Whatare the various Schools of Muslim Law major Ans:The Muslim Law contains two main and schools of Law. 1. Sunniand 2. Shia The Sunni sect of Muslims consists of majority among the Muslim world. The Sunni and Shias schools were has four and these sub schools are known by the jurists of slamicLaw. The important distinction between these major schoolsis with regard to the Election or the Succession to the appointment ofthe spiritual leader of Islam. The Sunnis adopt the principle of election for the appointment of Imamat- the spiritual leader. The Shias adopt the principle of succession for the appointment of Imamat. The succession should:-take place by the successors of the prophet. In addition to this major difference, the schools differ in their approach to the matters of marriage, inheritance, wills, divorce etc. The Sunnis are more in India and among.them, Hanafis contain the entire the population of Sunnis. The sub Schools ofare: 42 3HY 1. The Hanafi School T 2. The Maliki School 2 Quo 3. The Shafel School z 4, chool 41I 4. THE HANAFI SCHOOL The School was named after Abu - Hanifa an Nu'man ibn Thabit. He was known as the defender of Private Judgement. He introduced the doctrine of juristic euity knownas"Isthihsan”. The school had never accepted the oral traditions and it adopted the methods of reasoning and logical induction (Qiyas). 2. THE MALIKISCHOO! The School was named Malik ibn Anas, who was a Mufti and taughtat Madina. The School adopted all the teachings of Holy Quran and the traditions. rf THE SHAFEISCHOOL The School was named after Mohd. Shafei who was founder of the doctrine of Qiyas. He rejected the principle of Equity of Jurists propounded by Abu Hanifa. 4. THE HANBALI SCHOOL The School was named after Ahmed ibn Hanbal. Who preached. THE SHIASCHOOLS The term "Shia" means "Faction". The shias are group separated from Sunnis and who are the followers of Ali the-son in law of the Prophet. Ali the son in law of the prophet and Fatima the daughter of the prophet were the successors of the prophet. a0 The Shias by belief rejected the principles of Qiyas and they do not credence to equity, public policy etc. the Shias Schools are divided into 3 sub schools : 4, AthnaAsharia School o 2. IsmaliyaSchool 3. Zaidya School 4. THE ATHNAASHARIA SCH! The Athna Asharia School is the largest sub school of the Shias Schools. It had 12 Imams - the spiritual leaders. _This school is further divided into two sub schools: Akbhari_: The followers of the sub school are traditionalists and observe the norms very rigidly. Usuli ; The followers are liberal in interpreting Holy Quran. 2. THEI SCHOO! The followers of Ismail-are called Ismaliyas. They contend that there were only 7 Imams and Ismail was the 7th Imam. 43UNIT -1 Q.3: What is "DOWER MEHR" according to Muslim Law. Ans : Definitions of "DOWER MEHR" . Various Islamic Scholars defined "Dower - Mehr" in different ways. Ameer Ali, a noted Islamic scholar defined "Dower" as. "Dower is a consideration which belongs absolutely tothe Wife”. This definition has similarities with "STREE DHANA" of Hindu Law. According to Wilson, anoted English Jurists” "Dower is a consideration for the surrender of person by the wife". h Dr. Jung, the other noted jurist who defined "Dower" as "Dower is the property or its equivalent, incumbent on the husband either by reason of being agreed in the contract of marriage or by virtue of a separate contract, as a special consideration of Buza, the right of enjoyment itself". The Supreme Court of India defined “Dower - Mehr" inamaterialistic way. The Apex Court defined "Dower" as Muslim marriage is like a contract of sale in which the wife is the property and doweris the price”. A4 The “Dower - Mehr" can be termed as @ "consideration of Dower is of three kinds. Dower can be paid by the husband. 1. ‘Atthe time of performance of marriagd. 2. After the performance of marriage. 3. _ Itcan be paid after death of the husband also from his estate or from his assets. The term "Dower - Mehr" has a significance in Muslim Law. The "Dower' Mehr"is classified as : 4. Sper 2. Proper Dower ied Dower ~The first category of Dower - the specified Dower is again sub classified as : Sy Prompt Dower 2. DeferredDower In "Specified Dower". the bridegroom accepts to pay the bride, a fixed or agreed sum either before the marriage. ‘A Prompt (Specified) Doweris that which is p: demand, by the bridegroom to the bride. A Deferred (Specified) Dower is that one which is payable to the bride on dissolution of marriage either by divorce or by the death of the husband. The limitation tc pay by the husband and to receive by the bride, starts from the date on which the death of the husband occurs from the date of dissolution of marriage. 45| | The speciality of the Deferred Dower is that it allows other heirs of a Muslim wife to claim "Deferred Dower" after her death. A Muslim wife has a vested right over the Deferred Dower. AMuslim wife is not entitled to convert the "Deferred Dower" to "Prompt Dower". The husband, who gives "Dower" has a right to convertit from a deferred dower toa prompt dower and he can even transfer any of his properties in lien of the amount of dower payable to his wife. The Govt. of India which enacted “The Dowry Prohibition Act" in the year 1961 excluded “payment and receipt of Dower" from the purview of theAct. i UNIT -1 > Q.4: What are the essential requirements of a valid marriage under Muslim Law. Ans:The word "Marriage" has an equivalent in Arabic language "NIKAH". Nikah in Muslim Law means a "Contract of Marriage". As in the Law of contract. Muslim Law has two main ingredients - "PROPOSAL" and "ACCEPTANCE", meaning The 'Proposal’ come from the bridegroom, and the ‘Acceptance’ is from the bride. The ‘proposal is Arabic called "IAB" and the “ACCEPTANCE” meaning “QABOOL". The valid Marriage where the bride is seated amidst her relatives. The ‘Qa: who performs the marriage or the 'Nikah’ is assisted either ike and enactment of a scene 46 by two male witnesses or by one male and two female witnesses. These witnesses are necessarily to be Muslims. The role of witnesses is to go near the bride and convey the ‘proposal or 'Ijab' of the bridegroom or on his behalf of the legal guardian. When the proposal 6r'Ijab' is conveyed to the bride, she expresses her willingness to marry him, by accepting or expressing "Qabool” in Arabic. On her acceptance or expressing “Qabool" - one of the main requirements ofa valid marriage, the marriage is fulfilled and the marriage between them becomes a valid marriage. The other important point to be observed is that both the ‘proposal’ and ‘acceptance’ - ‘Ijab' and 'Qabool' in Arabic respectively are to be performed in one meeting and tfiere should not be attwo different places. . The third one is the "Consent" which should be free from coercion and influence and from any misrepresentation. A marriage under compulsion is not accepted under Sunni and Shia Schools, but is accepted under Hanafi class -a sub school of Sunni School. iT OF VALID MARRIAGE ESSENTIAL REQUIRE! UNDER MUSLIM LAW 4. For a valid marriage under Muslim Law, a "Proposal" from the bridegroom and an "Acceptance" from the bride are required. 2. | The husband agreeing to the "Dower meaning Mehr" confirms the requirement of a valid marriage. 47yr “If a women be prejudiced by a marriage, let it be broken off". The situation existing then was that Muslim women were denied the rights of dissolution available to them, under the Shariat. In order to resolve the problem of Muslim women, Qasi Mohammed Ahmed Kazmi the noted Islamic scholar introduced a Bill in the Central Legislature on 17-4-1936. After discussions, the Bill was passed by the Assembly with a few modifications and the Bill became Law on 17-3-1939, known as "THE DISSOLUTION OF MUSLIM MARRIAGES ACT 1939 (Act. No VIII of 1939). ALIENT FEATURES OF THE ACT There are two main features of the Act which are 1. The Act restored the right to Muslim women according to them by the Shariat. 2. The act treated all Muslims alike giving no important to schools. GROUNDS FOR OBTAINING A DECREE FOR DISSOi. IM MARRIAGE: AMuslim women married under the Act can obtain a decree for the dissolution of her marriage on any of the grounds cited: 1. | When Whereabouts of the husband are not known fora period of four years. 2! When the husband neglects or fails to provide forher maintenance for a period of two years. 3. When the husband is sentenced te imprisonment for a period of seven years 01 above. 4 4. When the husband fails to perform, withou' reasonable cause his marital obligations for a period of three years. 5. | When the husband is found to be impotent a’ the time of marriage and continues to be so.- 6. | When the husband is insane for a period o' two years or is suffering from leprosy or 2 virulent venereal disease. 7. When the women is given in marriage by he ~ rfather or her guardian before she attainec the age of fifteen years. And repudiated the marriage before attain the age of eighteen years, provided that the marriage not consummated. 8. Cruelty of the husband and associates with women ofill repute. 9. Forces the women tolead ai mortal life. These are some of the important grounds for obtaining a Decree for Dissolution of Marriage under the Act. meat| Paper -Til: Constitutional Law - Il 52 UNIT -1 Q.1: Define Delegated Legislation ? Ans:The constitution of India has created three important branches to administer the functioning of the Government - the Legislature, the Executive and the Judiciary. These three can be compared to Brahma - the Creator, Vishnu - the Executor and Shiva - the Destructor. The three wings have similar functions. The Legislature the Supreme wing, which expresses the sentiments and wants of the people. The elected representative voice the needs and grievances of the people in parliament. The functioning of Legislature is vast and it cannot function all alone and it therefore needs assistance. The assistance in the form of ordinances, orders, by-laws, rules, regulations and notifications. Article 13 (Cl. 13) of the Constitution of India stipulates the powers to legislature through these subsidiary functionaries. This is called "DELEGATED LEGISLATION". The Delegated Legislation is of two kinds. The Supreme Legislation is supreme because a law is made by the Parliament cannot be repealed, annulled orcontrolled by any other legislative authority. The Delegated Legislation is addressed as "Subordinate Legislation" Salmond a well known authority on Jurisprudence defines Subordinate Legislation as : 53"Subordinate Legislation is that which proceeds 1. from any authority other than sovereign power, and is therefore dependent for its continued existence and validity on some superior or supreme author The Parliament due to its exigencies of work or due to expertise makes rules or regulations for any institution or body for its smooth functioning. This is delegation of powers to a body subordinate to Parliament. It is the "VOX POPULI" - the voice of people expressed through the elected representatives to the Parliament or State Legislatures. 2. The Powers of the Legislature is delegated.due to 3. various reasoons. 3 ~ 4. Exigencies or Pressure of Work. ‘ . 4. 2. Technically. 3. AnInnovationoran Experiment. 4. DemergentNeed. 5. Unforeseen Circumstances. t 6. Q.2. Howis President of India Elected ? { Ans : The President of Indiais the Head of State. Article 54 of the Constitution of India stipulates the procedures through which the President of India is elected. The members who elect are called Electoral College which consists of : Ba The elected members of both houses of Parliament. The elected members of the Legislative Assemblies of State. , “To get elected as the President of India one has to posses or have the following qual fications. The person seeking election should be a Citizen of India. The person should be above 35 years of age. The person should be eligible to contest for election as a Member of the House of the People. The person seeking election should not hold any office of profit under the control of the Government of Indian or the Government of any State or under any local or other authority subject to the control of any of the Governmental agencies. By virtue of "The Presidential and Vice Presidential Elections" (Amendment Act, 1974) the person seeking election should now be proposed by at least 10 electors and be seconded 10 by 10 electors. Article 55 (c. 2) of the Constitution of India has a worked out formula by which the President of India is elected. The article provides uniformity among the states 55inter-se between the States and Union, the number of votes which each elected member is provided and is entitled to castin the formula in the following manner. 1. Every elected member of the Legislative Assembly of a State has as many votes as there are multiples of one thousand in the quotient obtained by dividing the population of the States by the total number of the elected members of the Assembly. 2. — After taking multiples of one thousands, the remainder is not less than five hundred, then ‘the vote of each member is increased furthered by one. “ 3. Each elected members of either House of Parliament has such number of votes as may be obtained by ing the total number of votes assigned to the members of Legislative Assemblies of the States under the above clauses by the total number of the elected members o both Houses of Parliament, fractions exceeding one half being counted as one and other fractions being disregarded. Itis as easy as two plus two. The formula works like this the total population of a State is divided by the total number of MLAs and the resultant factor is divided by 1000. 56 Presuming the Telangana’s population as = 6,70,00,00( The total number of seats in Telangana State Assembly = 294 67000000/294 = 227890 ” 227890/1000 = 227.890r228 Each MLAwill have the number of votes : 228 The total number of AP is 67,032. Q.3: Give a brief account of the Powers of th President of India. Ans: The Constitution of India is the life force of the peopla of India and Democracy is the spine of the Constitution of India. All the powers of the Executive are vested in the President as the President is the Executive Head ofthe Union. Article 53 of the Constitution of India stipulates the powers of the President of India. the framers of the Constitution of India made the President of India as the unique Head Yielding powers of the Executive, yet he | she is neither strong or weak. All powers of the Executive are carried-out in the name of the President of India for the entire Union of India and Government for each State. In reality, all the executive authority centres round the Prime Minister, aided and assisted by the Council o! Ministers. 87Article 53 of the Constitution of India stipulates all the executive powers are vested in the President of India. His / her executive powers are carried out by officers / Officials subordinates to him / her. These officers or the Ministers function under the patronage of the Prime Minister of India. Article 78 of the Constitution of India makes mandatory that the Prime Minister shall keep the President of India informed of all the decisions taken in the name of the President of India. The powers as stipulated in Art. 53 are as follows. a. Legislative Powers b. , Judicial Powers o c. ‘Emergency Powers d. Administrative Rowers e. Diplomatic Powers f. Military Powers g. . Powers tomake Treaties. Article 74 provides the powers which are vested in the President. These legislative powers are executed with the "A"D and ADVICE of the Council of jisters. The president has the power to summon, prorogate or dissolyte the Parliament. The President makes inaugural speech before the commencement of the proceedings of the Parliament (vide Article 87). The President has the power to nominate 12 members who belong to different fields like literature science art and social service (vide Article 80). The President has the power to nominate 2 members to the House of the people from Anglo - Indian community (vide “Article 331). The President lays before the Parliament a! the Annual Financial Statements, the Reports of the Auditor - Comptroller General of India and the Report o the Union Public Service Commission and any othe: Reportwhich needs the approvalofthe Parliament. - The power of Promulgation of Ordinances - a powe which is peculiar to the Constitution of India. The framers of our Constitution created a new power called the "Powe: of making Ordinance". Article 123 of the Constitution o India vests such Ordinance Power in the President o India. This power is not found in any Cons‘ in of tiie World where Democracy is the Rule of Law. _The President can promulgate Ordinance durin recess of Parliament. An Ordinance promulgated has the effect and force as an Act of Parliament. All suct ordinances are subject to scrutiny by the Parliament. The fe of the Ordinance ends on completion of six weeks o the reassembly of the Parliament. The main objective o the Article is to make the President to deal with an unforeseen and urgent matters. The Courts have nc power to inquire into the reasons for promulgation of the Ordinance. The power of promulgation of Ordinancé under Article 123 is subject the prov in of Article 74 which stipulates that the President has to act or “ADVICE" of the Council of Ministers.There have been judicial discussions and debates the Supreme Court of India on the power of Promulgation of Ordinances by the Governors of States. In a case decided in D.C. Wadhwa Vs. State of ihar, the Supreme Court of India observed that the Governor of Bihar issued 256 Ordinances during the years 1967 - 1981 and that they were kept alive for periods ranging from one year to 14 years by extending the life ofthe Ordinances. The Supreme Court of India condemned the act as "Subversion of the Democratic process", "Colourable Exercise of Powers" and "Unconstitutional 2. Judicial Powers : r > The power of Pardoning under Article 72 is vested in the President of India. Article 72 empowers of the President of India to grant pardon, commute punishment reprieve. The judicial power to "reprieve" means to suspend "Death Sentence" till a petition praying mercy for apardoning is decided. The power of pardoning is subject to the "advice" of the Council of Ministers. The pardoning power has three important cases decided by the Supreme Courtof India. a. Kuljeet Singh Vs. Lt. Govenor of Delhi - AIR 1982 SC 774 b. Sher Singh Vs. State of Punjab - AIR 1983 SC 361 C_ Chalapathi Rao and Vijayavardhan Rao Vs. State of A.P. 60 a. Kuljeet Singh Vs. Lt. Governor of Delhi This is a very interesting case, in which the power o the President under Art. 72 was questioned. Th brief facts of the case are that two accused Ranga ‘and Bille murdered two innocent children. The Sessions Cour awarded death sentence, which was challenged in Higt Court. The High Court confirmed the sentence. Then the accused preferred an Appeal before the Supreme Court through Special Leave Petition under Art. 136 for mercy which was rejected. They filed again alleging that the President had nothis discretionary power. This resulted ir Supreme Court staying (throughout country) deat sentences, pending for execution. On finding the case which did not deserve any reconsideration, the Supreme Courtlifted the stay. Sher Singh Vs. State of Punjab. In this case, the Supreme Court fixed the time o three months for disposal of cases of death sentences. 3. Chalapathi Rao Vs. State of A.P. The two accused in this case poured diesel an burntaRTC Bus, killing 32 persons. The Sessions Court at Guntur imposed Capite Punishment which was confirmed by High Court an Supreme Court. The accused submitted Mercy Appez before the President. Sri K.R. Narayanan was th President then, who pardoned them converting it into Ii imprisonment. The pardoning of the President wa questioned by many legal experts. 61 The decision of the President is final, it cannot be questioned in any Court of law Supreme Court of Law.) UNIT - II Q.4: How Independence of Jui our Constitution ? Ans : Articles 124 and 125 of the Constitution of India deal with the Independence of the Judiciary in India. In the words of Alladi Krishnaswamy lyer an eminentjurist: jary is protected in “The Supreme Court of India has more powers than any Supreme Court in any part of the World. The Indian Constitution is a great modern equalitarian democracy. its provisions can be comprehended only by a spacious, social approach not by pedantic, traditional legalism". 62 The Constitution of Ind drafted by our framers o our Constitution as to protect it from evil designs o politicians and secure independence of the judiciary fri the clutches of Legislature and Executive. They followe: and adopted the "Doctrine of Separation of Powers". The Judiciary is kept above the Legislature anc Executive so as to solve any legal or constitutiona intricacies. The framers of our Constitutions created some o the best Articles which check the Supremacy o Legislature or the Executive. Article 121 and 211 stipulate that no discussion o debate should take place in Parliament over the conduc! or any Judge of the Supreme Court or of a High Court the discharge or funct 1g of his / her duties in the Parliament or the State Legislature. However these Articles do not restrict the Legislature in bringing a motion against a Judge on allegations of Corruption, nepotism, favourtism. Article 124 of our Constitution stipulates appointments of Judges of Supreme Court or ofa High Court. Article 124 - Clause 4 lays down a lengthy procedure for removing a Judge only after issuing an order by the President of India after an address by each House of the Parliament supported by a majority of the total membership and by a majority of not less than two thirds of the members of the House present and voting ispresented to the President in the same session for such removal on the ground of proved misbehavior or incapacity. Articles 129 and 217 empower Supreme Court and High Courts respectively to punish forcontempt, as they are the Courts of Records. The other important Article is 50 (Part - IV on Directive Principles of State Policy) which stipulates the power to separate the judiciary from the executive in the public services of the state. Q.5: Discuss the Writ Jurisdiction of the Supreme Court under the Article 32 of the Constitution. Ans:The, Writ Jurisdiction of the Supreme Court is provided iin article 32 and discussed under the following heads: 1. Territorial Jurisdiction 2. Subject-Matter 3. The Power of Supreme Court to issue Writ is concurrent with that of the High courts. 4. Nature ofright to remedy underArticle 32. 4. Territorial Juri: ion: The Supreme Court can issue writ through out of the territory of India. The Supreme Court can issue a writ against authority also which is subject to the control of the Governmentof India. 64 The Writ Jurisdiction of the Supreme Court under Article 32 is confined to enforcement of fundamental rights only. The Writ jurisdiction of the High Courts is rather wide much as, they can issue writs under Articles 226 for the enforcement of the fundamental rights as well as for any other purpose. Article 139: empowers to the Parliament by law to confer upon the Supreme Court the power to issue Writs for purposes other than those mentioned in Articles 32(2). No law having been made so far the power of the Supreme Court remains limited to issuing Writs only for the enforcement of fundamental rights and for no other purpose. 3. The Power of reme Court to Writ i with that of the High Court: The power of the Supreme Court to issue writs for the enforcement of fundamental rights is not exclusive, butis concurrent with that of High Court under Article 226. Thus, in case of violation of a fundamental right the aggrieved party is free to choose and decide whether to present his petition in a High Court or in the Supreme Court. The following cases decided by the Supreme Court of India could illustrate the judicial bent of mind on the provision of Art. 32. 65