Unit-III: General Principles of Criminal Pleadings

a. Application for Bail

Bail refers to the release of an accused individual from police custody, allowing them freedom until the conclusion of
legal proceedings. It is not a direct declaration of innocence but rather ensures that the accused can prepare their
defense while respecting their fundamental right to liberty under Article 21 of the Indian Constitution.

The term "bail" is not explicitly defined in the Criminal Procedure Code, 1973 (CrPC). However, the procedural aspects
and conditions surrounding bail are discussed under Sections 437 and 439.

Key Provisions Related to Bail

1. Section 437 (CrPC):

o Governs bail for non-bailable offences in subordinate courts (Magistrates).
o Courts decide based on factors like the nature of the crime, criminal history, and the likelihood of the
accused absconding or tampering with evidence.
o Bail may not be granted if:
▪ The accused is charged with offences punishable by death or life imprisonment.
▪ The accused is likely to repeat the offence or poses a danger to society.
2. Section 439 (CrPC):
o Empowers High Courts and Sessions Courts to grant bail for more serious cases, including those
involving non-bailable offences.
o Provides flexibility in imposing additional conditions, ensuring accountability and fairness.

The underlying principle of these provisions is to prevent unnecessary detention, maintain judicial fairness, and uphold
the accused's right to a fair trial.

Types of Offences

1. Bailable Offences

• Defined under Section 2(a) of CrPC.

• Represent less serious crimes with a punishment of three years or less.
• Examples: Simple theft, public nuisance, and certain cases of fraud.
• Bail is a matter of right:
o Police officers can grant bail at the time of arrest.
o The accused may be released with or without sureties, depending on the conditions set by the
magistrate.

2. Non-Bailable Offences

• Also defined under Section 2(a) but include all offences not classified as bailable.
• Typically involve serious crimes punishable by imprisonment of three years or more.
• Examples: Murder, rape, terrorism, and corruption.
• Bail is not a matter of right:
o The power to grant bail lies solely with the judiciary.
o Factors such as public interest, risk of absconding, and the severity of the offence are considered before
granting bail.
Types of Bail

1. Regular Bail

Regular bail is granted to an individual who is already in custody (judicial or police custody) and seeks release. It is
governed by Sections 437 and 439 of the CrPC, which provide:

• Section 437: Grants power to a Magistrate to release the accused on bail, primarily for non-bailable offences,
subject to certain conditions.
• Section 439: Empowers Sessions and High Courts to provide bail in more serious cases.

Key features of regular bail:

• The accused is released on the execution of a bond, with or without sureties.

• The bond ensures that the accused will comply with legal obligations, such as appearing in court or cooperating
in investigations.
• It can be sought for both bailable and non-bailable offences, although for the latter, it depends on judicial
discretion.
• Regular bail is crucial to prevent prolonged detention and to ensure that the accused can prepare their defense
without undue restrictions on personal liberty.

2. Anticipatory Bail

Anticipatory bail is provided under Section 438 of the CrPC and is meant for individuals apprehending arrest for a non-
bailable offence. Unlike regular bail, anticipatory bail is sought before arrest to protect personal liberty and prevent
misuse of arrest powers.

Key features:

• The accused applies for anticipatory bail if they believe an FIR or complaint may lead to their arrest.
• Once granted, the police cannot arrest the individual until the court decides otherwise.
• The court granting anticipatory bail may impose conditions such as:
o Mandatory cooperation in the investigation.
o Refraining from tampering with evidence or intimidating witnesses.
• Anticipatory bail provides a safeguard against false accusations or harassment.

3. Interim Bail

Interim bail is a temporary measure provided to the accused for a short duration until a decision on regular or
anticipatory bail is made. It is typically granted to ensure that the individual is not unnecessarily detained during the bail
hearing.

Key features:

• It offers relief in urgent situations, such as when a bail application is pending and the accused requires
immediate protection.
• Interim bail may also be extended until the main bail application is resolved.
• If the court eventually denies the main bail application, the accused must surrender upon the expiry of the
interim bail.
Conditions/Grounds for Regular Bail

The conditions for regular bail differ based on whether the offence is bailable or non-bailable.

For Bailable Offences:

• Bail is granted as a matter of right, and the Magistrate must release the accused upon compliance with
conditions like providing sureties.

For Non-Bailable Offences:

Bail is granted at the court’s discretion, and the following factors are considered:

1. No Prima Facie Evidence: If there is insufficient evidence linking the accused to the crime.
2. Health Issues: Bail may be granted if the accused is seriously ill or needs medical care.
3. Vulnerability of the Accused: Special consideration for minors, women, or individuals with disabilities.
4. Nature of the Offence: If the crime does not warrant severe punishments such as a life sentence, death penalty,
or imprisonment exceeding 10 years.
5. Role in the Crime: If the investigation finds no substantial involvement of the accused in the offence.
6. Absence of Flight Risk: Assurance that the accused will not abscond or evade judicial processes.
7. No Tampering with Evidence: Likelihood of the accused not interfering with witnesses or obstructing justice.
8.

Procedure for Obtaining Regular Bail

1. Filing a Bail Application

• The accused, through their lawyer, files a bail application before the competent court (Magistrate or
Sessions/High Court based on jurisdiction).
• The application must include:
o Grounds for bail, such as health issues, lack of evidence, or no criminal history.
o Relevant details about the accused, including their character, background, and ties to the community.
o Legal precedents and case laws to support the request.

2. Court’s Hearing and Decision

• After receiving the bail application, the court evaluates whether to grant bail based on:
o The seriousness of the offence.
o The strength of evidence presented by the prosecution.
o The likelihood of the accused tampering with evidence, influencing witnesses, or absconding.
o The overall interest of justice.
• The court may impose conditions like:
o Regular attendance at court hearings.
o Restrictions on leaving a specified area or the country without permission.

3. Execution of Bail Bond

• If the court grants bail, the accused must submit a bail bond, which serves as a guarantee that they will adhere
to all conditions set by the court.
• The bond may involve:
o A monetary deposit or surety from a third party.
o Written undertakings by the accused to comply with court orders.
• Once the bond is executed, the accused is released from custody.
Failure to Comply:

• If the accused does not appear before the court as required or violates the bail conditions, the court may:
o Forfeit the bail bond.
o Issue a non-bailable warrant against the accused.

Important Factors While Granting Anticipatory Bail in India

Under Section 438(1) of the Criminal Procedure Code (CrPC), the Supreme Court has outlined several key
considerations for granting anticipatory bail. These factors ensure that anticipatory bail is granted judiciously and only in
appropriate cases.

1. Gravity of the Crime and Role of the Accused

• The nature and seriousness of the offence must be evaluated.

• The accused's alleged role in the crime is assessed to determine whether bail would compromise the
investigation or public interest.

2. Past Criminal Record

• The accused's criminal history, if any, is examined.

• Previous convictions, particularly for non-bailable offences, are significant factors that may weigh against
granting anticipatory bail.

3. Possibility of Absconding

• The court must assess whether the accused is likely to evade justice if released.
• Risk of absconding is a critical concern, especially in cases involving grave offences.

4. Potential for Repetition of Offences

• If there is a likelihood of the accused committing similar or other offences, anticipatory bail may not be granted.

5. Malicious Intent Behind the Complaint

• The court evaluates whether the allegations are made with the intent to injure or humiliate the accused
through arrest.
• This protects individuals from false or frivolous accusations.

6. Role of the Accused

• The court considers the accused’s specific involvement in the alleged offence and whether their custodial
interrogation is essential for the investigation.

7. Risk of Tampering with Evidence or Witnesses

• If there is a reasonable apprehension that the accused might tamper with evidence, influence witnesses, or
intimidate the complainant, anticipatory bail may be denied.
Standard Conditions While Granting Anticipatory Bail

When anticipatory bail is granted, courts often impose conditions to ensure compliance with the investigation and
judicial processes:

1. Appearance for Interrogation

o The accused must present themselves before the investigating officer as and when required.
2. No Inducement or Threat
o The accused should not influence, threaten, or promise any person involved in the case to alter their
testimony or evidence.
3. Restriction on Travel
o The accused must not leave the country without prior permission from the court.
4. Additional Conditions
o Courts have the discretion to impose other conditions they deem necessary, considering the specifics of
the case.

Cancellation of Bail

Bail, including anticipatory bail, is not absolute and can be canceled under the following provisions:

1. Section 437(5) of the CrPC

• The court that granted bail can revoke it if necessary, particularly if the accused breaches bail conditions or
obstructs justice.

2. Section 439(2) of the CrPC

• Higher courts (Sessions Court, High Court, or Supreme Court) can:

o Cancel bail suo moto (on their own) or based on an application.
o Direct the accused to be taken into custody if bail is deemed unjustified.

3. Section 389(2) of the CrPC

• Appellate courts can cancel bail during an appeal process and order the accused's arrest.

Noteworthy Case Laws on Anticipatory Bail

1. Re: Digendra Sarkar

o Held that anticipatory bail can be applied for even before an FIR is registered. An FIR is not a
prerequisite for seeking anticipatory bail.
2. Suresh Vasudeva vs. State
o Clarified that Section 438(1) applies exclusively to non-bailable offences.
3. Sushila Agarwal vs. State
o The Supreme Court ruled that anticipatory bail is not time-bound, but courts can limit its tenure based
on special circumstances.
4. Gurbaksha Singh Sibbia vs. State of Punjab
o Affirmed that:
▪ Anticipatory bail need not have a fixed duration unless specific circumstances necessitate such a
limitation.
▪ Courts can impose reasonable conditions tailored to the nature of the case.
Anticipatory Bail as a Fundamental Right

Anticipatory bail serves as an important legal remedy in safeguarding individual liberty, which is a cornerstone of Article
21 of the Constitution of India. Article 21 guarantees every person the right to life and personal liberty, ensuring that
these cannot be curtailed except through the due process of law. This constitutional provision underpins the concept of
anticipatory bail.

Link Between Article 21 and Anticipatory Bail

1. Presumption of Innocence:
o A fundamental principle of criminal law is that an accused is presumed innocent until proven guilty. Pre-
trial detention contradicts this presumption and can tarnish a person's reputation and disrupt their daily
life.
2. Right to Prepare for Defense:
o Being incarcerated before trial impedes the accused’s ability to gather evidence, consult with counsel,
and prepare for their case effectively. Anticipatory bail provides the necessary freedom to engage in
these activities.
3. Protection from Arbitrary Arrest:
o Anticipatory bail ensures that individuals are not subjected to unjust or malicious arrests, especially in
cases where accusations may be baseless or filed with ulterior motives.
4. Balance Between Liberty and Justice:
o While the courts recognize the need to investigate serious crimes, anticipatory bail reflects a judicial
commitment to balancing individual rights against the interests of justice.

Judicial Perspective on Anticipatory Bail

In Gurbaksh Singh Sibbia v. State of Punjab (1980), the Supreme Court clarified the scope and importance of Section
438:

• Anticipatory bail should be interpreted in line with Article 21, preserving the liberty of individuals.
• The court emphasized that the provision safeguards against arbitrary arrests, which could lead to undue
harassment.
• However, anticipatory bail is not an absolute right. Courts retain the discretion to impose conditions or deny
bail based on the merits of the case.

b. Application under Section 125 CRPC

Section 125 CrPC: Ensuring Maintenance and Social Justice

Section 125 of the Code of Criminal Procedure (CrPC) is a vital provision in the Indian legal system aimed at protecting
the most vulnerable members of society from destitution and neglect. It ensures social justice by obligating individuals
to provide financial support to their dependents. This provision transcends religious and personal laws, ensuring a
universal safeguard for those in need.

Understanding Section 125 CrPC

Section 125 CrPC empowers a Magistrate to order a monthly allowance for the maintenance of certain categories of
dependents who cannot sustain themselves. The section provides an efficient, straightforward remedy to prevent
homelessness or impoverishment and uphold human dignity.
Applicability: Section 125 applies universally, regardless of religious or personal laws, thus serving as a secular and
equitable remedy.

Purpose:

The provision’s primary aim is to:

1. Ensure dependents do not suffer due to the neglect of those legally obligated to support them.
2. Prevent individuals from becoming destitute by legally obligating financial support.

Categories of Dependents Under Section 125 CrPC

1. Wife:
o Eligibility:
A wife, including a divorced wife who has not remarried, can claim maintenance if:
▪ The husband neglects or refuses to support her.
▪ She is unable to maintain herself.
o Key Clarifications:
▪ A wife cannot claim maintenance if she is living in adultery, has voluntarily separated without
sufficient cause, or refuses to live with her husband without a reasonable reason.
▪ The provision applies to legally married women; however, the Supreme Court has widened its
interpretation to include women in long-term live-in relationships under certain circumstances.
2. Children:
o Eligibility:
▪ Minor children (legitimate or illegitimate) are eligible for maintenance if they cannot support
themselves.
▪ Adult children can claim maintenance only if they are physically or mentally incapacitated.
o Minor Female Child:
If married and her husband cannot support her, the father may be ordered to provide maintenance.
3. Parents:
o Eligibility:
Parents, including adoptive parents, who are unable to sustain themselves can claim maintenance from
their children.
o Clarification:
A parent’s financial incapacity and the child’s ability to pay are critical considerations for granting
maintenance.

Key Features of Section 125 CrPC

1. Interim Maintenance:
o The provision for interim maintenance ensures immediate relief during the pendency of proceedings.
o This reduces delays and helps prevent hardships faced by the dependents.
2. Quantum of Maintenance:
o The amount of maintenance is determined by considering:
▪ The needs of the dependent.
▪ The financial means of the person liable to provide support.
▪ The social status and standard of living of the parties.
3. Jurisdiction of the Court:
o Maintenance applications under Section 125 can be filed in a Magistrate's court where:
▪ The dependent resides.
▪ The respondent resides or works.

Defenses and Exceptions

 1. Sufficient Means of Respondent:
o The person ordered to pay maintenance must have sufficient means to do so.
o The court examines the income, assets, and liabilities of the respondent while determining their capacity
to pay.
2. Reasonable Refusal:
o The respondent can argue that they have not neglected their duty, for example, by showing evidence of
support already provided.
3. Conduct of the Dependent:
o A wife or dependent may be denied maintenance if their conduct, such as infidelity or unjust refusal to
live with the respondent, justifies it.

Judicial Interpretations and Precedents

1. Secular Nature of Section 125:

In Mohd. Ahmed Khan v. Shah Bano Begum, the Supreme Court upheld that Section 125 applies universally,
irrespective of personal laws, to protect individuals from destitution.
2. Live-in Relationships:
In Chanmuniya v. Virendra Kumar Singh Kushwaha, the court held that women in long-term live-in relationships
could claim maintenance under Section 125.
3. Maintenance Beyond Divorce:
The Supreme Court, in Danial Latifi v. Union of India, clarified that a divorced Muslim woman is entitled to
maintenance under Section 125 until she remarries or becomes self-sufficient.

Summons and Warrants Under Section 125 CrPC

Summons:
When a person is sought to provide maintenance under Section 125 CrPC, the Magistrate may issue a summons
directing them to appear before the court. The summons ensures that the respondent is made aware of the claim and is
given an opportunity to present their case.

Warrant:
If the individual fails to comply with a maintenance order without a justifiable reason, the Magistrate can issue a
warrant for their arrest. This provision ensures enforcement of maintenance orders and acts as a deterrent against
neglecting legal responsibilities.

Significant Recent Judgments

1. Rajnesh v. Neha (2020):

o The Supreme Court clarified that a wife’s earning does not automatically disentitle her from claiming
maintenance.
o Maintenance is viewed as a measure of social justice, focusing on the dependent’s financial hardship
rather than their employment status.
2. Sunita Kachwaha v. Anil Kachwaha (2021):
o The Rajasthan High Court ruled that even after remarriage, a wife may continue to claim maintenance if
it is essential for her well-being.
o The judgment underscored the ongoing nature of financial responsibility, highlighting special
circumstances where continued support is warranted.
3. Vineeta Sharma v. Rakesh Sharma (2020):
o The Supreme Court held that daughters have equal rights in ancestral property and emphasized the
importance of gender equality in property and maintenance rights.
o This landmark judgment reinforced a daughter’s entitlement to maintenance, aligning with progressive
norms of inheritance and family law.
Conclusion

Section 125 CrPC remains a cornerstone of India’s legal framework for ensuring financial support and social justice for
dependents. With progressive judicial interpretations and societal changes, this provision continues to adapt, reflecting
evolving notions of equity and fairness. By protecting vulnerable individuals and addressing financial disparities, Section
125 plays a pivotal role in upholding human dignity and the constitutional right to life under Article 21.

C. Compounding of Offences by Way of Compromise under Section 320 (i) CRPC

The Latin maxim "Interest reipublicae ut sit finis litium" emphasizes that it is in the state's interest to ensure the
conclusion of legal disputes. Delayed litigation burdens the judicial system and the individuals involved. Section 320 of
the Criminal Procedure Code, 1973 (CrPC) provides an effective mechanism for expediting justice by permitting the
compounding of certain offences, particularly those of a non-serious or private nature. This article examines the
concept, legal framework, and implications of compounding offences under Section 320.

What is Compounding of an Offence?

Compounding an offence refers to settling the matter amicably between the accused and the victim, often leading to the
withdrawal of legal proceedings.

• The concept serves as a tool to foster reconciliation in cases where private disputes outweigh public harm.
• The court’s sanction is sometimes required to ensure fairness and prevent misuse.
• Compounding leads to the cessation of a criminal trial, thus saving judicial time and resources.

In some scenarios, external factors like the complainant’s non-appearance or death, or the accused's death, may result
in the proceedings being dropped. Additionally, a conditional pardon may be awarded to an accused under special
circumstances, leading to dismissal.

Compounding of Offences Under Common Law

Historically, under common law, compounding a felony was considered a crime as it hindered justice and accountability.

• In modern jurisdictions like the United States, compounding misdemeanours is generally permitted, while
compounding felonies is widely prohibited.
• In the United Kingdom and Ireland, compounding crimes is illegal to prevent interference with the rule of law.

Key Constituents of Section 320 CrPC

Section 320 of the CrPC divides offences into two categories:

1. Offences Compoundable Without Court Permission (Section 320(1)):

Certain minor offences can be compounded without seeking judicial approval. These are listed in the first table under
Section 320.

Examples include:

Section of IPC Offence Person Who Can Compound

298 Use of language or gestures offending religious sensibilities The person offended
Section of IPC Offence Person Who Can Compound
323, 334 Voluntarily causing hurt The victim
341, 342 Wrongful restraint or confinement The person restrained or confined
426, 427 Mischief causing loss The person who suffered loss
447, 448 Trespass or house trespass The owner or lawful occupant of the property
500-502 Defamation The defamed person

Section 320(2): Compounding with Court Approval

This subsection allows for the compounding of more serious offences, contingent on the court’s consent. Approval
ensures the fairness and voluntariness of the settlement.

Examples of Compoundable Offences Requiring Court Approval:

IPC Section Offence Person Eligible to Compound

312 Causing miscarriage The woman who suffered the miscarriage
325 Voluntarily causing grievous hurt The person to whom the hurt was caused
337, 338 Causing harm or grievous harm through rash or negligent acts The injured party
357 Assault or unlawful force to confine The person assaulted or confined
381 Theft by a servant or clerk The owner of the stolen property
406, 408 Criminal breach of trust or breach by a servant or clerk The aggrieved party
418, 420 Cheating or dishonestly inducing property transfer The person cheated
494 Marrying while a spouse is alive The aggrieved spouse
500 Defamation The person defamed
509 Insulting the modesty or privacy of a woman The woman insulted

Key Points:

1. The Magistrate ensures the compounding is voluntary and lawful.

2. In cases involving harm to public interest, the court may reject the compounding request.

Section 320(3): Compounding Related Offences

If the primary offence is compoundable, any act of aiding, abetting, or attempting the commission of that offence is also
compoundable.
For example:

• If an individual assists in the theft of property (compoundable under Section 381 IPC), the assistance or attempt
is also compoundable.

Section 320(4): Special Situations

This subsection addresses compounding when the victim:

1. Is a Minor or Mentally Incapacitated:

o A guardian can compound on the victim's behalf with prior court approval.
 2. Is Deceased:
o The legal representative of the deceased can compound the offence, subject to court approval.

Section 320(5): Pending Trials and Appeals

Compounding is prohibited when:

1. The accused is undergoing trial.

2. An appeal against a conviction is pending.
The court's consent is mandatory in such cases to avoid interference with ongoing judicial proceedings.

Section 320(6): Powers of Higher Courts

The High Court and Sessions Court can allow compounding under their revisional powers:

• High Court: Section 401 of CrPC

• Sessions Court: Section 399 of CrPC

Section 320(7): Restrictions on Compounding

An offence cannot be compounded if:

1. The accused has been previously convicted of the same or similar offence.
2. The compounding would result in undue benefit to a habitual offender.

Section 320(8): Effect of Compounding

Compounding results in:

1. Acquittal of the Accused:

o The accused is discharged from all legal liabilities related to the compounded offence.
2. Closure of Proceedings:
o Even if an FIR was filed or a trial commenced, compounding legally terminates the case.

Case Law:

• Yesudas v. Sub-Inspector of Police, Kalamassery (2007): It was clarified that compounding could occur even
during the investigation stage, provided court approval is obtained.

Case Law: Gurcharan Singh Bhawani v. State (2002): The court ruled that non-compoundable offences cannot be
compounded under inherent powers (Section 482 of CrPC).

Non-Compoundable Offences: Section 320(9)

Non-compoundable offences are serious crimes that cannot be privately settled between the victim and the accused, as
their nature affects not only the individuals involved but also society at large. These offences require full legal
prosecution, as allowing settlements could harm public trust in the legal system and set a dangerous precedent.

Key Features of Non-Compoundable Offences

1. Serious Nature:
 o These offences involve significant harm, either physical, financial, or societal, and are considered a
threat to public order and morality.
o Examples include rape, murder, theft, fraud, and offences against women and children.
2. State Prosecution:
o Cases are typically initiated and pursued by the State rather than an individual, as the harm extends
beyond personal grievances.
3. No Settlement Allowed:
o Such offences cannot be privately resolved or settled between parties, even with court approval.
o A complete trial is required, leading to either conviction or acquittal based on evidence.
4. Public Policy Consideration:
o The inability to compound these offences ensures accountability and upholds the rule of law.
5. Quashing of Offences:
o While non-compoundable offences cannot be settled, they can be quashed under specific
circumstances, such as lack of evidence or abuse of legal process, by the High Court under Section 482
of CrPC.

Examples of Non-Compoundable Offences

Section Offence
326 Voluntarily causing grievous hurt using dangerous weapons.
343 Wrongfully confining a person for three or more days.
352 Assaulting a woman with the intent to outrage her modesty.
403 Dishonest misappropriation of property.
420 Cheating and dishonestly inducing delivery of property.
429 Mischief by killing or injuring cattle worth ₹50 or more.
509 Insulting the modesty of a woman through words, gestures, or acts.
483 Counterfeiting property marks or trade marks.

Difference Between Compoundable and Non-Compoundable Offences

Aspect Compoundable Offences Non-Compoundable Offences

Nature of Serious offences affecting individuals and
Relatively minor offences affecting individuals.
Crime society.
Charges can be withdrawn with or without court Charges cannot be withdrawn; trial is
Withdrawal
approval. mandatory.
Impact Primarily impacts one individual. Affects both individuals and society at large.
Filing of Case Cases are usually filed by the victim. Cases are filed by the State.
Cannot permit settlement; may quash in rare
Court's Role May allow settlement under Section 320 CrPC.
cases.

What is Plea Bargaining? How Does it Differ from Compounding Offences?

Plea Bargaining is a pre-trial negotiation between the accused and the prosecution, where the accused pleads guilty to a
lesser offence or accepts reduced punishment in exchange for concessions. It is governed by Sections 265A to 265L of
the CrPC.
Differences Between Plea Bargaining and Compounding Offences

Aspect Plea Bargaining Compounding of Offences

Admission of Guilt Requires the accused to admit guilt. Does not require an admission of guilt.
Outcome Leads to reduced charges or punishment. Results in complete acquittal.
Legal Origin Introduced in 2006 under CrPC. Originates from 1973 CrPC provisions.
Non-compoundable offences with imprisonment ≤ Only for offences listed under Section 320
Applicable Cases
7 years. CrPC.
Double Jeopardy Accused may still face charges under related Accused is fully acquitted and immune to
Rule provisions. retrial.
Involves settlement between the victim and
Victim's Role Primarily involves prosecution and court.
accused.

Grounds for Compounding Non-Compoundable Offences Under Section 320 CrPC

While Section 320 of the Code of Criminal Procedure (CrPC) specifies the offences that are explicitly compoundable,
non-compoundable offences may be considered for quashing under exceptional circumstances. The High Court, using its
inherent powers under Section 482 CrPC, can intervene in non-compoundable offences in cases where the interest of
justice or fairness demands it.

Grounds for Compounding or Quashing Non-Compoundable Offences

1. Settlement Between Parties:

o If the offence is of a private or civil nature (e.g., disputes arising from family matters, property, or
contracts), and the parties have amicably resolved their differences, courts may consider quashing
proceedings.
o This principle was reinforced in cases like Gian Singh v. State of Punjab (2012) and Narinder Singh v.
State of Punjab (2014).
2. Lack of Public Interest:
o Offences that do not harm public safety or societal order can be considered for compounding. For
example, cases involving financial disputes or minor injuries may not affect the broader public interest.
3. Likelihood of Conviction:
o If the court determines that the likelihood of conviction is low due to a lack of evidence, and continuing
the trial would cause undue hardship to the accused, proceedings may be quashed.
4. Personal Nature of the Offence:
o Non-compoundable offences with a personal element, such as certain family disputes or accidental
harm caused without malice, may be considered for settlement.
5. Rehabilitation and Reconciliation:
o Courts may permit quashing if the accused has shown remorse, made reparations, or reconciled with
the victim, promoting societal harmony.
6. Exceptional Circumstances:
o In rare and extraordinary cases, courts have exercised discretion to allow settlement for serious offences
if justice would otherwise be denied. For instance:
▪ In Y. Suresh Babu v. State of Andhra Pradesh (1987), the Supreme Court allowed a compromise
in a case under Section 326 IPC, deeming it a unique situation.

Judicial Discretion and Safeguards

1. Rejection of Compounding Applications:

 oCourts retain the discretion to reject motions to compound, even for offences that are compoundable
under Section 320 CrPC, if the circumstances do not merit leniency.
o In Bhagwan Das v. State of Uttarakhand (2019), the Supreme Court emphasized that public interest and
the seriousness of the offence must guide the court's decision.
2. Heinous or Serious Offences:
o In cases involving heinous crimes like murder (Section 302 IPC) or dacoity (Section 395 IPC), courts are
generally unwilling to permit compounding, as these affect society as a whole.
o The judgment in Gian Singh highlighted that offences against society cannot be quashed merely because
the victim and accused have settled.
3. Revisionary Powers of the High Court:
o Under Section 401 CrPC, the High Court can reverse an acquittal obtained through unlawful
compounding. For example:
▪ In Rameshchandra J. Thakkar v. A.P. (1972), the Supreme Court allowed such reversal where
compounding was found to be inappropriate.

Conclusion

While non-compoundable offences are typically outside the purview of private settlement due to their serious nature,
the judiciary has established principles to enable resolution in select cases under Section 482 CrPC. This approach
balances the need for justice with the goal of reducing unnecessary litigation. However, these powers must be exercised
with caution to ensure that public interest and the rule of law are upheld.

d. Complaint under Section 138, Negotiable Instruments Act, 1881

The Negotiable Instruments Act, 1881 (hereinafter referred to as the N.I. Act) was drafted by the 3rd Indian Law
Commission in 1866 and underwent multiple revisions before being enacted into law on March 1, 1882, as Act No. 26 of
1881. This legislation aimed to consolidate and regulate the laws concerning promissory notes, bills of exchange, and
cheques, providing a legal framework for their usage in commercial transactions.

Objective of the Act

1. Legitimizing Negotiability:
o The Act established a legal foundation to allow negotiable instruments to pass seamlessly from one
person to another through negotiation, much like goods or commodities.
2. Encouraging the Use of Cheques:
o By enhancing their credibility, the Act aimed to promote cheques as a reliable mode of payment in
financial transactions.

Over the years, significant amendments were made to address contemporary needs, especially in response to the
challenges posed by dishonored cheques, leading to the insertion of Sections 138 to 142 in 1988, under Chapter XVII of
the Act. Further amendments in 2015 and 2018 reinforced these provisions.

Key Definitions and Provisions

Section 13: Negotiable Instrument

A negotiable instrument includes:

1. Promissory Notes
2. Bills of Exchange
3. Cheques payable either to order or to bearer.
Explanations under Section 13

1. Payable to Order:
o A negotiable instrument is payable to order if it explicitly states this or is payable to a specific person
without restricting its transferability.
Example: "Pay to John or order."
2. Payable to Bearer:
o An instrument is payable to bearer if it specifies so or has a blank endorsement as the last recorded
endorsement. Example: "Pay to bearer."
3. Payable to a Specified Person:
o Even if an instrument specifies that it is payable only to a specific individual, it can be made payable to
the individual or to their order at the payee's discretion.

Sub-Clause (2):

Negotiable instruments can be made payable:

1. To two or more payees jointly.

Example: "Pay to A and B jointly."
2. Alternatively, to one of the payees or a group of payees.
Example: "Pay to A or B."

Importance of the Act

The Negotiable Instruments Act, 1881, has played a pivotal role in:

• Facilitating trade and commerce by simplifying payment methods.

• Providing legal certainty and enforceability to transactions involving negotiable instruments.
• Preventing misuse by introducing penal provisions, especially under Section 138, which criminalizes cheque
dishonor.

This framework has evolved through amendments to remain relevant to the changing financial ecosystem and ensure
the efficient resolution of disputes involving negotiable instruments.

Negotiable Instruments Act, 1881: Understanding Cheques and Section 138

The Negotiable Instruments Act, 1881, governs the functioning and legal treatment of negotiable instruments, including
promissory notes, bills of exchange, and cheques. Among these, the cheque is the most commonly used negotiable
instrument in modern commerce, and Section 138 of the Act specifically addresses the issue of cheque dishonor, aiming
to safeguard the credibility of this instrument.

What is a Cheque?

Section 6 of the Act defines a cheque as:

• A bill of exchange drawn on a specified banker, not expressed to be payable otherwise than on demand.
• Includes:
1. The electronic image of a truncated cheque.
2. A cheque in electronic form.

Explanation of Key Terms:

 1. Cheque in Electronic Form:
o A cheque generated electronically using computer resources and signed with:
▪ A digital signature or
▪ An electronic signature (with or without biometric authentication).
2. Truncated Cheque:
o A physical cheque converted into an electronic image during the clearing cycle, eliminating the need for
further physical movement.
3. Clearing House:
o An institution (managed or recognized by the Reserve Bank of India) facilitating cheque clearance and
settlement.
4. Definitions from the Information Technology Act, 2000:
o Terms such as digital signature, asymmetric crypto system, and electronic signature are defined under
the IT Act.

Section 138: Penalizing Dishonor of Cheques

While cheque dishonor is not inherently an offence, Section 138 prescribes penal consequences when specific
conditions are met.

Ingredients of the Offence:

To constitute an offence under Section 138, the following conditions must be satisfied:

1. Cheque Issuance: The cheque must have been issued by the drawer to the payee/complainant against an
account maintained by the drawer.
2. Debt or Liability: The cheque must be issued to discharge a legally enforceable debt or liability, in full or part.
3. Dishonor by the Bank:
o The cheque is returned unpaid due to:
▪ Insufficient funds.
▪ Exceeding the arrangement with the bank.
4. Timely Presentation: The cheque must be presented within 3 months (previously 6 months) from the date it is
drawn or within its validity period.
5. Demand Notice: The payee/holder must issue a written demand notice within 30 days of receiving information
about the dishonor.
6. Non-payment: The drawer fails to pay the cheque amount within 15 days of receiving the notice.
7. Legally Enforceable Debt: The debt or liability must be legally valid (e.g., cheques issued for time-barred debts
or illegal activities, like "supari" money, do not attract Section 138).

Time Frame for Proceedings under Section 138

1. Cheque Presentation: Within 3 months from the date of issuance.

2. Demand Notice: To be issued within 30 days of dishonor notice from the bank.
3. Drawer's Response Period: 15 days from receipt of the demand notice to make payment.
4. Complaint Filing: Within 1 month from the expiry of the 15-day notice period under Section 142.

Objective of Section 138

The primary purpose of Section 138 is:

• Enhancing Credibility: To ensure the sanctity of cheques in business transactions and restore faith in banking
operations.
• Punitive Measures: To deter erring drawers and safeguard honest payees.
 • Faster Resolution: Providing an efficient remedy for dishonored cheques, bypassing the lengthy civil litigation
process.

The Supreme Court emphasized in Vinaya Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd., (2008) and Bir Singh v.
Mukesh Kumar, (2019), that the provision aims to inculcate financial discipline and prevent the misuse of cheques.

Important Judicial Interpretations

1. Existing Debt or Liability:

o In Somnath v. Mukesh Kumar (2015), the Punjab & Haryana High Court held that Section 138 does not
apply if the cheque is issued for a time-barred debt or illegal consideration.
2. Commercial Discipline:
o In Goa Plast (P) Ltd. v. Chico Ursula D'Souza (2004), the Supreme Court highlighted that Section 138 is
designed to protect genuine creditors and ensure commercial accountability.
3. Role of Amendments:
o Amendments in 2002 introduced Sections 143 to 147, simplifying procedures for cases under Section
138 and allowing compounding of offences.

Section 138 of the Negotiable Instruments Act, 1881: Components of the Offence

Section 138 of the Negotiable Instruments Act, 1881 (N.I. Act) addresses the dishonour of cheques, transforming a
financial default into a criminal offence under specific conditions. This provision aims to uphold the credibility of
cheques as negotiable instruments, ensuring that individuals do not misuse cheques to defraud creditors. To constitute
an offence under Section 138, several essential elements must be fulfilled. This section delves into these components,
supported by relevant case laws and judicial interpretations.

Components of the Offence Under Section 138 CrPC

For an offence under Section 138 to be established, the following components must be satisfied:

1. Drawing of the Cheque for a Specific Amount

o Definition: The accused (drawer) must issue a cheque for a specific monetary value from their bank
account.
o Legal Context: The cheque should be drawn for the discharge, either wholly or partially, of any legally
enforceable debt or liability.
o Case Reference: In Sivakumar Vs. Natrajan (2009), the Supreme Court held that the cheque must be
issued for a legal liability, and issuing a cheque as a gift does not attract Section 138.
2. Presentation of the Cheque to the Bank
o Definition: The cheque must be presented to the drawee bank (the bank on which the cheque is drawn)
within its validity period.
o Legal Context: The cheque is typically presented for encashment or deposit at the bank. The Reserve
Bank of India (RBI) specifies that cheques must generally be presented within three months from the
date of issuance.
o Case Reference: In Central Bank of India and Another Vs. Saxon Farms and others (1999), the Supreme
Court clarified that the cheque must reach the drawer’s bank within the validity period to be honored.
3. Return of the Cheque Unpaid by the Drawee Bank
o Definition: The cheque is dishonoured if it is returned unpaid by the bank due to insufficient funds or
because it exceeds the arranged limit with the bank.
o Legal Context: Dishonour reasons include insufficient funds, stop payment instructions, or discrepancies
in the cheque details.
 o Case Reference: Harman Electronics Pvt. Ltd. Vs. National Panasonic India Ltd. (2009) emphasized that
dishonour must be due to insufficient funds or exceeding the arranged amount.
4. Issuance of a Demand Notice by the Payee
o Definition: Within 30 days of receiving information about the cheque’s dishonour, the payee (holder of
the cheque) must issue a written demand notice to the drawer.
o Legal Context: The demand notice serves as a formal request for the drawer to make payment of the
cheque amount.
o Case Reference: In Damodar S. Prabhu v. Sayed Babalal H. (2010), the Supreme Court held that the
notice must be served within the stipulated timeframe to maintain the cause of action.
5. Failure of the Drawer to Make Payment Within 15 Days of Receiving the Notice
o Definition: The drawer must fail to honor the cheque by making the payment within 15 days of receiving
the demand notice.
o Legal Context: This failure establishes the drawer’s intention not to honor the cheque, thereby fulfilling
the offence under Section 138.
o Case Reference: D. Vinod Shivappa v. Nanda Belliappa (2006) highlighted that the drawer’s non-
payment within the 15-day period is a crucial element for the offence.
6. Legally Enforceable Debt or Liability
o Definition: The cheque must be drawn to discharge a debt or liability that is legally enforceable.
o Legal Context: The debt should be recoverable under law, excluding time-barred debts or those arising
from illegal activities.
o Case Reference: In Somnath vs. Mukesh Kumar (2015), the court ruled that cheques issued for time-
barred debts or supari money do not attract Section 138.
7. Account Maintained by the Drawer in the Bank
o Definition: The cheque must be drawn from an account maintained by the accused in the bank.
o Legal Context: The drawer must have a valid account with the drawee bank at the time of cheque
issuance.
o Case Reference: In Jugesh Sehgal v. Shamsher Singh Gogi (2009), the Supreme Court held that if the
cheque is not drawn from the accused’s account, the offence under Section 138 is not established.
8. Compliance with Procedural Requirements
o Definition: All procedural steps, including timely presentation, demand notice, and filing of the
complaint, must be adhered to.
o Legal Context: Non-compliance with any procedural requirement can render the complaint under
Section 138 invalid.
o Case Reference: In MSR Leathers Vs. S. Planniappan and Another (2013), the court emphasized the
need for strict adherence to procedural norms for the maintenance of the complaint.

Time Frame for Proceedings Under Section 138 CrPC

1. Presentation of Cheque
o Requirement: The cheque must be presented to the bank within three months from the date of
issuance (reduced from six months as per RBI Notification).
o Legal Reference: Section 138 Proviso (a).
2. Issuance of Demand Notice
o Requirement: Within 30 days of receiving information about the cheque’s dishonour.
o Legal Reference: Section 138 Proviso (b).
o Case Reference: In Sadanandan Bhadran vs. Madhavan Sunil Kuar (1998), the court held that failure to
issue the notice within 30 days affects the validity of the complaint.
3. Drawer’s Response Period
o Requirement: The drawer must make the payment within 15 days of receiving the demand notice.
o Legal Reference: Section 138 Proviso (c).
o Case Reference: Prem Chand Vijay Kumar vs. Yashpal Singh & Anr. (2005) emphasized that non-
payment within 15 days is crucial for maintaining the cause of action.
4. Complaint Filing
 o Requirement: The complaint must be filed within one month from the date the cause of action arises,
i.e., after the 15-day period post-notice.
o Legal Reference: Section 142.

Judicial Interpretations and Key Case Laws

1. Bhagwan Das v. The State of Uttarakhand & Anr. (2019)

o Summary: The Supreme Court ruled that even if an offence is compoundable under Section 320, the
court retains discretion to reject the compounding motion based on the offence’s nature and public
interest.
o Implication: Reinforces that public interest and the seriousness of the offence can override the
compoundability under Section 320.
2. Gian Singh v. State of Punjab (2012)
o Summary: The High Court must not dismiss criminal cases involving serious or heinous offences or those
affecting public interest.
o Implication: Upholds that compoundable offences cannot undermine public interest, ensuring that
serious crimes are prosecuted fully.
3. Narinder Singh v. State of Punjab (2014)
o Summary: The Supreme Court held that the High Court can terminate criminal prosecution under
Section 482 CrPC if there is little chance of conviction and the accused would suffer significant injustice.
o Implication: Provides flexibility to courts to quash proceedings even in non-compoundable offences
under exceptional circumstances.
4. Rameshchandra J. Thakkar v. A.P. (1972)
o Summary: If a compounding acquittal is later found unlawful, the High Court can reverse the acquittal
using its revisionary powers.
o Implication: Ensures that compounding cannot be misused to grant wrongful acquittals.
5. Y. Suresh Babu v. State of Andhra Pradesh (1987)
o Summary: The Supreme Court permitted a compromise in a Section 326 IPC charge, highlighting it as a
unique instance.
o Implication: Although rare, courts can allow compounding in non-compoundable offences under special
circumstances.
6. Damodar S. Prabhu v. Sayed Babalal H. (2010)
o Summary: Applications for compounding should be made early in the proceedings. Late applications
may require additional costs.
o Implication: Encourages timely settlements to prevent prolonged litigation.
7. Aparna A. Shah Vs. Sheth Developers Pvt Ltd and Anr. (2013)
o Summary: In joint account scenarios, only the drawer is liable unless both parties consent.
o Implication: Clarifies liability in compoundable offences involving joint accounts.
8. N Harihara Krishna Vs J. Thomas (2017)
o Summary: The Supreme Court reiterated that joint account drawers are individually liable for
compoundable offences.
o Implication: Strengthens the responsibility of individual account holders in compoundable offences.

Objectives of Section 138 and Its Amendments

1. Regulating Business Transactions

o Purpose: To instill financial discipline and accountability among individuals and businesses using
cheques for transactions.
o Legal Reference: Krishna v. Dattatraya (2008) emphasized restoring cheque credibility to prevent
fraudulent practices.
2. Promoting Vigilance in Financial Matters
o Purpose: To ensure that financial dealings are conducted responsibly, discouraging the misuse of
cheques as tools for defrauding creditors.
 oLegal Reference: Goa Plast (P) Ltd. v. Chico Ursula D'Souza (2004) highlighted the need to protect
genuine creditors and maintain business integrity.
3. Safeguarding Credibility of the Drawer
o Purpose: To protect honest individuals from fraudulent claims and ensure that defaulters are held
accountable.
o Legal Reference: Vinaya Devanna Nayak v. Ryot Sewa Sahakari Bank Ltd. (2008) underlined the dual
objective of punitive and compensatory measures.

Conclusion

Section 138 of the Negotiable Instruments Act, 1881 plays a crucial role in maintaining the integrity of financial
transactions in India. By criminalizing the dishonour of cheques under specific conditions, it deters defaulters from
misusing cheques and ensures that creditors receive due compensation. The detailed components of the offence ensure
that only genuine cases of dishonour attract criminal liability, thereby balancing the interests of both creditors and the
accused.

e. Application under Section 482, CRPC

Powers of High Courts Under Section 482 CrPC

Section 482 of the Code of Criminal Procedure, 1973, grants inherent powers to High Courts to prevent the misuse of
the legal process and ensure justice. This provision serves as a safeguard for maintaining the integrity of the judicial
system and ensures that justice prevails without procedural roadblocks. It is instrumental in preserving the ideals of the
Indian Constitution and allows High Courts to render complete justice.

Brief History of Section 482 CrPC

The Hon’ble Supreme Court first elaborated on the circumstances under which the inherent powers of the High Courts
could be exercised in 1960. These included situations where:

1. A legal bar existed against the initiation or continuation of proceedings.

2. Allegations in an FIR or complaint did not constitute an offence.
3. There was no legal evidence, or the evidence failed to substantiate the charges.

In 1977, the Supreme Court revised these criteria into three broad categories, which continue to guide the High Courts:

1. To give effect to orders under the Criminal Procedure Code.

2. To prevent abuse of the court’s process.
3. To secure the ends of justice.

Purpose of Section 482 CrPC

The inherent powers under Section 482 serve multiple purposes:

1. Preventing Abuse of Process and Securing Justice:

High Courts can intervene to prevent cases filed with malicious intent or for harassment. This power ensures
that procedural delays or technicalities do not hinder justice.
2. Quashing Criminal Proceedings and Protecting Innocent Individuals:
High Courts may quash criminal proceedings, FIRs, or complaints in cases where no evidence supports the
charges or where the accusations are baseless. This power safeguards innocent individuals from wrongful
prosecution.
 3. Setting Aside Illegal Orders:
Section 482 enables High Courts to nullify illegal or unsustainable orders. This includes orders made without
jurisdiction or those violating natural justice principles.

Discretionary Nature of the Power

The exercise of inherent powers under Section 482 is discretionary. High Courts evaluate each case on its individual
merits and may choose not to exercise their authority if the circumstances do not warrant intervention. This ensures a
balance between judicial intervention and the autonomy of lower courts.

Quashing of FIR: Guidelines by the Hon’ble Supreme Court

The Hon’ble Supreme Court of India has set out comprehensive guidelines for quashing FIRs under Section 482 of the
Criminal Procedure Code (CrPC), ensuring a balanced use of judicial discretion. These principles were primarily
established in the landmark case of State of Haryana and Ors. vs Bhajan Lal and Ors. and further refined in subsequent
judgments.

Categories for Quashing FIRs Under Bhajan Lal Judgment

The Supreme Court identified specific situations where High Courts can exercise inherent powers to quash FIRs:

1. No Offense Made Out:When the allegations in the FIR or complaint, even if taken at face value, fail to constitute
an offense or make a case against the accused.
2. Lack of Cognizable Offense: When the allegations in the FIR and accompanying materials do not disclose a
cognizable offense requiring police investigation under Section 156(1) of the CrPC, or when investigation under
non-cognizable offenses lacks a Magistrate’s order under Section 155(2).
3. No Evidence of Offense: When the FIR and supporting evidence do not reveal the commission of any offense.
4. Non-Cognizable Offense: When the FIR outlines a non-cognizable offense, barring police investigation without a
Magistrate's approval under Section 155(2).
5. Absurd or Improbable Allegations: When the allegations are so improbable or absurd that no reasonable
person would find sufficient grounds to proceed.
6. Legal Bar to Proceedings: When a specific legal provision or alternative legal remedy prohibits criminal
proceedings, making the FIR inadmissible.
7. Malicious Proceedings: When the FIR is motivated by malice or ulterior motives, such as personal vendettas,
rather than a genuine intent to seek justice.

Principles for the Application of Section 482 of CrPC

Section 482 of the Criminal Procedure Code (CrPC) empowers the High Courts to exercise inherent jurisdiction to
prevent abuse of legal processes and ensure justice. Several landmark judgments have elaborated on the principles and
scope of this provision:

General Principles Governing Inherent Jurisdiction

The Supreme Court in Madhu Limaye v. Maharashtra (1977) outlined key principles:

1. Alternative Remedies:
Inherent power cannot be invoked if specific provisions in the law provide alternative remedies for grievance
redressal.
2. Prevention of Abuse:
The power should be exercised sparingly and only to prevent abuse of the judicial process or to secure justice.
3. Non-Contradiction of Statutes:
The inherent jurisdiction must not override express statutory provisions.
Situations Where Powers Cannot Be Invoked:

1. Ongoing Police Investigation: High Courts cannot quash investigations into cognizable offenses solely because
the FIR does not disclose an offense; the police may gather evidence through investigation.
2. Interlocutory Orders: Inherent powers cannot be applied to challenge interim or interlocutory orders.
3. Reliability of Allegations: Courts cannot assess the genuineness or reliability of allegations during an ongoing
investigation.
4. Bail and Arrest:
o Section 482 cannot be invoked to reopen or alter bail orders decided on merits.
o It cannot grant bail directly or order a stay of arrest during investigation.

Quashing of Proceedings

In R.P. Kapoor v. State of Punjab (1960), the Court ruled that proceedings may be quashed in cases where:

1. There is a legal bar on initiating or continuing proceedings.

2. Allegations do not constitute an offense.
3. Evidence presented fails to support the charges.

Key Judgments Highlighting Section 482 Applications

1. Fresh Investigation:
In M/s Pepsi Food Ltd. v. Special Judicial Magistrate (1998), the Court held that High Courts could order fresh or
re-investigations after the filing of a chargesheet if required to secure justice.
2. Alternative Remedies:
In Sakiri Vasu v. State of U.P. (2008), the Court emphasized that Section 482 petitions should be avoided for
unregistered FIRs, urging aggrieved parties to first approach police or Magistrates.
3. Second Petitions:
In Bhisham Lal Verma v. State of Uttar Pradesh (2023), the Court clarified that second petitions under Section
482 are not maintainable on grounds available at the time of filing the first petition.

Misuse of Section 482 CrPC

Section 482 of the Criminal Procedure Code (CrPC) serves as a vital provision to prevent abuse of judicial processes and
to secure justice. However, its misuse can undermine the integrity of the legal system.

Forms of Misuse

1. Scuttling Investigations or Prosecutions:

Accused individuals may exploit Section 482 to disrupt or delay ongoing investigations or prosecutions. Filing
frivolous petitions to halt legal processes, even in cases where valid grounds exist for investigation or trial, can
obstruct justice and burden the judiciary.
2. Bypassing Statutory Remedies:
Some individuals misuse Section 482 as a shortcut, bypassing established statutory remedies under the CrPC. For
example:
o Accused persons may directly seek quashing of an FIR or charge sheet without first applying for
anticipatory bail or regular bail, as provided under the law.
o Such attempts not only bypass procedural safeguards but also place undue pressure on the High Courts.
3. Seeking Interim Stays Improperly:
Another common misuse involves requests for interim stays of legal proceedings under Section 482, especially
when such relief has been denied by lower courts. This tactic delays the legal process and may hinder the rights
of other parties involved.
Conclusion

While Section 482 CrPC is a critical tool for ensuring justice, its potential for misuse calls for judicial vigilance. The
provision must be exercised judiciously, with due regard for procedural safeguards and statutory remedies. Misuse not
only delays justice but also undermines the credibility of the judicial system. Courts must balance their discretion under
Section 482 to protect both the rights of the accused and the integrity of the legal process.

Unit-IV: Conveyancing

a. Notice to the Tenant under Section 106 of Transfer of Property Act

The introduction provides a broad understanding of what constitutes a transfer of property. It explains that a transfer
could involve gifts, sales, mortgages, leases, or exchanges of immovable property. It highlights the essential aspect that
this transfer is typically from one person (the owner) to another living person, granting the latter the right to use or
enjoy the property temporarily or permanently.

Key takeaway:

• A transfer of property legally shifts certain rights of the owner to another party.
• The owner may retain full ownership or transfer rights for a limited time, depending on the type of transfer.

Lease Under the Transfer of Property Act, 1882

This paragraph narrows the focus to leases, emphasizing that a lease involves transferring the use of property in
exchange for money for a specific duration without transferring ownership.

Important highlights:

1. Owner Retains Ownership: Even when a property is leased, ownership remains with the lessor (the property
owner).
2. Mutual Agreement: The terms can be written or verbal, giving flexibility based on the parties' convenience.
3. Governed by Section 106: In cases where no written agreement exists, Section 106 of the Transfer of Property
Act governs the terms.

Essential Elements of a Lease Under Section 105

Section 105 lays out the fundamental requirements for a valid lease agreement. Below is an explanation of each
element:

1. The Parties: A lease involves two primary parties:

• Lessor: The owner who transfers the right to use the property.
• Lessee: The person who receives the right to use the property.

This element ensures that a lease transaction is bilateral and clearly defines who holds ownership and who holds
possession.

2. The Demise: The term demise refers to the act of leasing property. It signifies the legal transfer of possession from the
lessor to the lessee, granting the lessee the right to enjoy the property for the agreed period.
Example: If the owner of a building leases it to a tenant, the tenant has the right to live in or use the building as agreed
in the lease.

3. The Term (Duration): A lease has a fixed duration agreed upon by both parties. The lessor specifies the length of time
for which the lessee can use the property. The duration can vary based on the agreement or be governed by custom or
local practice if not documented.

Example: A one-year residential lease or a 99-year commercial lease agreement.

4. The Consideration: This refers to the payment or benefit exchanged for leasing the property. It could be:

• Rent: A regular monetary payment (e.g., monthly rent).

• Other Forms: Services, goods, or contributions specified in the agreement.

The lessor determines the rent or premium, which acts as compensation for allowing the lessee to use the property.

Agreement to Lease

This is the formal agreement between the lessor and the lessee. Key aspects include:

• Ownership Retained by Lessor: Ownership of the property remains with the lessor, but the right to use or enjoy
the property is transferred to the lessee.
• Flexibility: Agreements can be verbal or written based on mutual consent. Written agreements are
recommended for clarity and legal enforceability.
• Premium or Rent: The lease price is pre-decided and must be paid by the lessee regularly or as per the
agreement.

Example: If A leases a house to B for one year in exchange for ₹50,000, A retains ownership but gives B the right to use
the property. This creates a formal relationship between the two parties, governed by the lease terms.

Duration of Certain Leases: Section 106 of the Transfer of Property Act, 1882

This section applies in the absence of a formal lease contract or established local practice and governs leases based on
the type of use. It categorizes leases into two main types: agricultural/manufacturing leases and other leases, and
prescribes the notice periods for termination.

Agricultural and Manufacturing Leases

• Duration: These leases are assumed to operate on a year-to-year basis.

• Notice for Termination: Either party can terminate the lease by providing six months' notice in writing.
• Typical Use Case:
o Agricultural leases: A landlord allows a farmer to use the land for farming purposes.
o Manufacturing leases: The lessee uses the land for industrial or manufacturing activities involving labor
or machinery.

Other Leases

• Duration: These are presumed to be month-to-month leases.

• Notice for Termination: Requires only 15 days’ notice for termination.

This distinction ensures flexibility for agricultural/manufacturing leases requiring longer notice periods while keeping
short-term leases easier to terminate.
Types of Leases

1. Agricultural Purposes

• The lease is for cultivating crops or other farming activities.

• Payment can be:
o Fixed monetary rent.
o A share of the agricultural produce (e.g., rice or wheat).
• Agreements can be:
o Formal (written): Provides clarity on terms.
o Verbal (implied): Common in informal setups.

Termination:

• Requires 6 months' notice for year-to-year leases.

• Requires 15 days' notice for month-to-month leases.

2. Manufacturing Purposes

• The lease involves the use of property to manufacture goods through labor or machinery.
• A valid lease may require a clear definition of the manufacturing process to distinguish it from general
commercial use.
• Agreements:
o Can be formal or verbal.
o Payments are typically made monthly or annually.

Termination:

• Similar notice requirements as agricultural leases:

o 6 months' notice for yearly leases.
o 15 days' notice for monthly leases.

Composite and Integrated Tenancy

• Composite Tenancy: Refers to leasing premises for mixed purposes (e.g., a building for residential and
commercial use by the same lessee).
• Integrated Tenancy: Different portions of the premises are allocated for specific purposes, such as one part for
living and another for a business.
• These tenancy types offer flexibility for dual-use purposes but require clarity in agreements to avoid disputes.

Notice to Terminate a Lease

Section 106 also governs the process of serving notice to terminate leases. Here are the key points:

1. Notice Periods:
o 6 months’ notice for agricultural or manufacturing leases (year-to-year basis).
o 15 days’ notice for other leases (month-to-month basis).
2. Effectiveness of Notice:
o The notice period begins the day the lessee receives the notification.
o Even after the notice period expires, the lease can be terminated through a legal suit.
3. Requirements for Valid Notice:
o The notice must be in writing and signed by the party issuing it.
o It can be personally delivered to the lessee, a family member, or a servant at their address.
Case Law: Shanthi Prasad Devi v. Shankar Mahto (2005)

This Supreme Court case clarified the application of Section 106 concerning lease renewals.

• Facts:
o The lessee was running a petrol pump under a registered lease for 15 years.
o Despite the lease expiration, the lessee continued paying rent, which the lessor accepted.
o The lessee claimed the acceptance of rent was consent to renew the lease.
• Judgment:
o The Court held that Section 106 does not automatically renew leases unless explicitly agreed upon.
o The lessee was ordered to vacate within two months, maintaining the premise's original condition.

Acceptance of Rent After Notice

• General Rule: Acceptance of rent by the landlord after issuing an eviction notice does not imply that the lease is
renewed. The notice serves to terminate the lease, and the act of paying or receiving rent does not override this
intention.
• Implication: A tenant cannot rely on rent payment as evidence of the lease's continuation once notice has been
served.

Case: Munnar Lavten Yadav v. Ashok Dalvi (2021)

• Facts:
o The petitioner was the landowner, and the respondent was a monthly tenant.
o The respondent owed rent but refused to pay despite repeated reminders.
o The petitioner issued an eviction notice under Section 106 of the Transfer of Property Act, 1882, thereby
terminating the tenancy.
o The respondent failed to vacate the premises even after the notice and continued non-payment of rent.
• Judgment:
o The Bombay High Court directed the respondent to hand over peaceful possession of the property to
the petitioner within two months.
• Key Takeaway: Non-payment of rent and failure to comply with an eviction notice lead to legal enforcement of
termination.

Deposit of Rent in Court

• Tenants may deposit rent in court under specific circumstances as provided under the Rent Control Act, 1948:
o When the landlord refuses or fails to issue a receipt for rent paid.
o When the landlord does not accept the rent offered by the tenant.
o When the tenant is unsure of the rightful person to whom rent should be paid.
• Process:
o The tenant submits the rent to the court.
o The court sends the rent to the landlord via registered post and also issues copies of the application and
notice to the landlord.
• Purpose: This process protects tenants from eviction due to alleged non-payment of rent and ensures landlords
receive their dues.

Permissive Occupancy

• Definition: Permissive occupancy refers to the landlord granting temporary permission for someone to occupy
their property without creating a formal lease.
• Characteristics:
o It implies the owner's tolerance and does not transfer ownership or leasehold rights to the occupant.
 o The landlord retains full ownership rights.
• Legal Protection:
o Permissive occupancy can be extended or terminated at the landlord's discretion, but the occupant's
rights can be claimed against third parties during the permissive period.

Effect of Redemption on Tenant-Mortgagee

• When a tenant-mortgagee (a tenant who has also mortgaged the property) redeems the mortgage:
o No landlord-tenant relationship exists beyond the mortgage period unless explicitly agreed.
o The mortgagor regains ownership and becomes entitled to future rents.
o A mortgagee cannot create interests in the property that extend beyond their mortgage rights.
• Impact: This prevents conflicts regarding the property’s usage and ownership after mortgage redemption.

Supreme Court Decision: Nand Ram & Ors. v. Jagdish Prasad & Ors.

1. Unregistered Agreement:
The lease agreement for five years required mandatory registration under Section 17 of the Registration Act,
1908. Since it was unregistered, it was inadmissible as evidence, except for collateral purposes (e.g., identifying
possession).
2. Applicability of Section 106 (TP Act):
The court ruled the lease was month-to-month, requiring only 15 days’ notice for termination, as the tenant
failed to prove the premises were used for manufacturing purposes.
3. Manufacturing Activity Not Proven:
The tenant’s claim of "manufacturing" lacked evidence of transforming raw materials into new products. Stating
that he dealt in rubber was insufficient.
4. Outcome:
The landlady's 15-day notice was valid, and the tenant's appeal was dismissed. The tenancy was deemed
terminated.

NOTICE UNDER SECTION 106 OF THE TRANSFER OF PROPERTY ACT, 1882

[Owner's name]
[Owner's address]
[City, State, PIN code]

Dated: [Insert Date]

To,
[Name of the Tenant]
[Complete Address of the Tenant]

Subject: Termination of Tenancy – Notice under Section 106 of the Transfer of Property Act, 1882

Dear Sir,

Under instructions from and on behalf of my client, Shri [Client’s Name], I hereby serve you this notice as outlined in the
following paragraphs:

1. Tenancy Details: You are a tenant of my client in the premises located at [Full Address of the Property] on a
monthly rental of Rs. [Amount].
2. Commencement of Tenancy: Your tenancy commences on the 7th day of each English calendar month.
 3. Termination of Tenancy: By this notice, your tenancy is hereby terminated with effect from [Date], which is the
[Day] of [Month], [Year].

You are hereby advised to vacate and deliver peaceful and vacant possession of the aforementioned premises on or
before [Date]. Should you fail to comply with this notice and fail to vacate the premises by the stipulated date, I have
been instructed by my client to initiate necessary legal proceedings for your eviction in the competent court at your risk
and cost.

Please be advised that a copy of this notice has been retained in my records for any future necessary action.

Yours faithfully,
[Signature]
[Your Name]
[Your Designation, if applicable]
[Your Contact Details]
[Law Firm/Organization, if applicable]

b. Notice under Section 80 of CPC

Section 80 of the Civil Procedure Code, 1908, is a legal requirement for individuals or entities who intend to file a lawsuit
against the Government or a public officer in relation to any act they performed in their official capacity.

Section 80 CPC mandates that before filing a suit against the Government or a public officer, the plaintiff must give a
written notice to the concerned authority. This notice is intended to give the Government or the public officer an
opportunity to resolve the issue or take action to prevent litigation.

2. Key Details in the Notice

• Recipient: The notice should be sent to the relevant authority:

o For the Central Government (except for railways), it goes to the Secretary of the Government.
o For railway-related matters, it goes to the General Manager of the railway.
o For state governments, it should be sent to the Secretary of that state or the district Collector.
o For the Government of Jammu and Kashmir, it goes to the Chief Secretary or an authorized officer.
o For a public officer, the notice should be delivered to the officer in question.
• Content: The notice must include:
o The name, description, and residence of the plaintiff.
o The cause of action, which is the reason for the lawsuit.
o The relief being sought by the plaintiff.

3. Time Requirement

• Notice Period: The plaintiff must wait for two months after delivering the notice before initiating the suit. This
period allows the Government or the public officer to take action to address or resolve the issue.
• Urgent Cases: If the plaintiff requires immediate relief, they can go to court without serving the notice, but must
obtain the court’s permission. However, even in urgent cases, the court will only grant relief after giving the
Government or public officer an opportunity to respond. If the court finds there is no urgency, the plaint (initial
legal document) will be returned to the plaintiff for compliance with the notice requirement.
4. Defects in the Notice

• No Dismissal for Minor Errors: A suit will not be dismissed just because of minor errors or defects in the notice
if:
o The plaintiff's name, description, and residence are adequately provided to help identify them.
o The notice was delivered to the correct office and mentioned the cause of action and relief sought.

5. Implications of Section 80

• This requirement helps the Government and public officers prepare for the lawsuit, potentially leading to an
out-of-court resolution.
• Failure to comply with this section, except under urgent circumstances, may result in the dismissal of the suit for
not meeting procedural requirements.

What Is Section 80 of the CPC?

Section 80 of the Civil Procedure Code (CPC) of 1908 is a provision that requires individuals to provide a formal notice to
the government or a public officer before filing a lawsuit against them for acts performed in their official capacity. This
provision ensures that the government or public officer has an opportunity to address the issue before the matter is
taken to court. Here is a breakdown of the section:

Key Points of Section 80 CPC

1. Purpose of the Section:

o Pre-suit Notice: Section 80 CPC is meant to prevent premature lawsuits against the government or
public officers by providing them with a chance to respond or resolve the matter. This helps save time
and public resources by potentially avoiding unnecessary litigation.
2. Applicability:
o Suits Against the Government: Notice is mandatory for lawsuits against the government.
o Suits Against Public Officers: Notice is required when suing a public officer for acts performed in their
official capacity.
3. Sub-sections of Section 80:
o Section 80(1): Notice Delivery Requirements:
▪ Specifies where the notice should be delivered based on the category of the suit:
▪ For the Central Government (excluding railway matters), the notice should go to the
Secretary of the government.
▪ For railway-related matters, the notice should be given to the General Manager of the
railway.
▪ For the Government of Jammu and Kashmir, the notice should be directed to the Chief
Secretary or an authorized officer.
▪ For other state governments, it should go to the Secretary or the Collector of the
district.
▪ For public officers, the notice should be delivered directly to the officer.
▪ The notice must include the plaintiff’s name, description, place of residence, the cause of action,
and the relief sought. The plaint must mention that such a notice has been given.
o Section 80(2): Exception for Urgent Relief:
▪ Allows the plaintiff to file a suit without giving the notice if the court is convinced that
immediate relief is needed.
▪ If the court finds no urgency, it will return the plaint, and the plaintiff must comply with the
notice requirement before re-filing.
o Section 80(3): Requirements for Notice:
▪ Specifies that the suit should not be dismissed due to minor errors or defects in the notice, as
long as:
 ▪ The plaintiff's identity is clear.
▪ The notice was delivered to the correct office as specified in Section 80(1).
▪ The notice substantially indicates the cause of action and relief sought.

Case Law and Interpretations

• State of Maharashtra v. Chander Kant: Clarified that a notice must be given in suits against the government. For
suits against public officers, notice is only needed when the act in question was performed in an official capacity.
• State of Madras v. Chitturi Venkata Durga Prasadrao: Discussed interpretations of the phrase "act purporting to
be done," concluding that it includes acts performed in the past and potentially acts planned for the future, but
this interpretation may vary based on context.

Objective and Legislative Intent

• Purpose: Section 80 CPC aims to provide an opportunity for the government or public officer to consider the
matter and respond, potentially leading to an out-of-court settlement and saving public resources.
• Prevention of Wasteful Litigation: The requirement helps avoid unnecessary court cases, which would
otherwise be a financial burden on the public and government resources.
• Encouragement for Negotiation: This provision encourages dialogue and negotiation before resorting to
litigation, aligning with the idea of using public funds efficiently.

Filing Suit Without Notice: Section 80(2) CPC

Section 80(2) of the Code of Civil Procedure (CPC), 1908, acts as an exception to the general rule in Section 80(1), which
mandates that a plaintiff provide two months’ notice before filing a suit against the government or a public officer. This
exception applies in cases where the matter is urgent, and the plaintiff seeks immediate relief. However, the plaintiff
must first obtain permission from the court to proceed without notice.

Urgency as the Key Factor

The provision is designed to address situations where delaying action for the mandatory notice period would cause
irreparable harm or injustice to the plaintiff. The urgency of the matter is the primary consideration for the court in
granting permission. If the court determines that there is no genuine urgency or that immediate relief is not essential, it
may decline to grant leave under Section 80(2), directing the plaintiff to comply with the notice requirements.

Court’s Role and Discretion

The court exercises significant discretion under Section 80(2). It carefully examines whether the plaintiff’s claim of
urgency is reasonable and substantiated. If satisfied, the court permits the plaintiff to file the suit without serving prior
notice. However, if the urgency is not justified, the court may return the plaint, advising the plaintiff to adhere to the
procedural requirements of Section 80(1).

Balancing Public and Private Interests

While Section 80 generally seeks to give the government or public officers time to consider the claims and settle
disputes out of court, the exception under Section 80(2) acknowledges the need for flexibility in urgent cases. This
ensures that a plaintiff is not left without recourse in situations where waiting for the notice period could cause harm,
while still maintaining safeguards against frivolous or hasty litigation.

Errors or Defects in Notice under Section 80 CPC

Not every minor defect or error in a notice issued under Section 80 CPC renders the notice invalid or fatal to the
plaintiff’s claim. The courts take a pragmatic approach, emphasizing substance over form. If a notice reasonably provides
all essential information mandated by the statute, incidental defects or errors can be overlooked. This principle was
affirmed in The State of A.P. vs. G.V. Suryanarayana, AIR 1965 SC 11.

Interpretation of Notices under CPC

The courts adopt a balanced and practical approach when interpreting notices under Section 80 CPC. Adherence to
procedural requirements is important but should not be overly rigid. A notice is not to be scrutinized pedantically;
common sense and practicality should guide its interpretation. This perspective is supported by judgments such as State
of Madras vs. C.P. Agencies, AIR 1960 SC 1309 and Dhian Singh Sobha Singh vs. Union of India, AIR 1958 SC 274.

Suits Against Railway Administration

In cases involving compensation claims against railway administrations, Section 80 CPC is applicable, and the Union of
India must be impleaded as a necessary party. The Supreme Court affirmed this in State of Kerala vs. G.M., Southern
Railway, Madras, (1977) 1 SCR 419.

Non-Impleadment of State and Consequences

Failure to implead the state as a party or serve notice under Section 80 CPC can lead to the dismissal of the suit. For
example, in Sooraj vs. S.D.O., AIR 1995 SC 872, the Supreme Court held that a declaration suit was not maintainable
without the state being impleaded.

Definition of Public Officer

Under Section 2(17) CPC, the term "public officer" encompasses individuals such as judges, officers of courts,
government officers, and those entrusted with public duties, including financial and administrative tasks. The Supreme
Court clarified in Coal Mines Provident Fund Commissioner vs. Ramesh Chandra Jha, AIR 1990 SC 648, that public officers
are subject to the notice requirements of Section 80 CPC.

Government Pleader under CPC

Defined in Section 2(7) CPC, a "Government Pleader" is an officer appointed to represent the government’s legal
interests. They are also the designated agents for receiving court processes under Order 27, Rule 4 CPC.

Procedural Exemptions and Fairness

Section 80(2) CPC permits exemptions from the two-month notice requirement in urgent cases, but the court must
observe principles of natural justice. For instance, in Suresh Chandra Nanhorya vs. Rajendra Rajak, 2006 (65) ALR 323
(SC), the court emphasized the need to issue notice to the government’s counsel, allowing them an opportunity to
respond.

Key Exceptions and Waivers

1. Amendment of Plaint: If a new cause of action arises due to an amendment, fresh notice under Section 80 CPC
is required (Bishan Dayal vs. State of Orissa, (2001) 1 SCC 555).
2. Withdrawal of Suit: When a suit is withdrawn and refiled on the same cause of action, fresh notice is not
necessary (Amar Nath Dogra vs. Union of India, AIR 1963 SC 424).
3. Waiver of Notice: Authorities can waive notice under Section 80 CPC, and their inaction or non-appearance can
imply waiver (Gaja vs. Dasa Koeri, AIR 1964 All 471).

Notice to State Only

Serving notice to the state but not to individual public officers does not invalidate a suit, as held in Ghulam Rasool vs.
State of J & K, AIR 1983 SC 1188.

Conclusion

Section 80 CPC ensures procedural fairness and accountability in lawsuits against the government and public officers.
While it mandates prior notice, courts recognize exceptions for urgent cases and emphasize a practical approach to
interpreting compliance. This balance safeguards both government resources and access to justice.

By Registered A.D.
[Your Name and Address]
[Your Phone Number and Email Address]

Date: [Insert Date]

To,
The Secretary to the Government of [State/Central Government]
[Name of the Department]
[Complete Address]

Subject: Legal Notice under Section 80, Code of Civil Procedure, 1908

Dear Sir/Madam,

Re: Notice of Suit against the Government of [State/Central]

Under instructions from my client, Mr./Ms. [Full Name], son/daughter of [Parent’s Name], resident of [Complete
Address], I hereby issue this notice as required under Section 80 of the Code of Civil Procedure, 1908.

My client intends to initiate a civil suit against the Government of [State/Central] in the [Name of the Court] for the
cause of action and reliefs detailed herein.

Details of the Cause of Action

Facts Leading to the Cause of Action

1. Circumstances of the Incident:

On [insert date], my client, Mr./Ms. [Full Name], was subjected to significant hardship due to the
actions/inactions of officials from [Name of Department].
2. Nature of the Incident:
The incident occurred at [specific location, e.g., a government office or public space], where officials failed to
[describe the omission or act, such as refusal to issue a document, negligence, arbitrary action, or wrongful
conduct].
3. Impact on My Client:
These actions/omissions have directly resulted in [specific damages or harm, e.g., financial loss, emotional
distress, violation of rights, or breach of statutory duty].
 4. Attempts for Resolution:
Despite several attempts by my client to resolve the matter through [e.g., filing complaints, contacting relevant
officials], no satisfactory resolution has been provided.

Violation or Grievance

1. My client has been aggrieved by the government’s failure to [specific act or inaction, e.g., issuing a necessary
approval, taking timely corrective measures, or providing a legitimate service].
2. These actions/inactions amount to a [breach of statutory duty, violation of fundamental rights under the
Constitution, arbitrary use of power, negligence, etc.], which have caused irreparable harm to my client.

Relief Sought

1. My client seeks the following reliefs from the court:

a) Primary Relief: Compensation of INR [amount] for the financial, physical, and emotional damages incurred.
b) Additional Reliefs:
o A declaratory judgment against the wrongful actions/inactions of the department.
o An injunction restraining the department/officials from continuing such acts.
o Costs incurred during the legal process, including litigation fees.

Efforts Made for Resolution

1. Correspondence and Communication:

My client has sent multiple complaints, including letters/emails on [specific dates], to [specific officials or
department].
2. Meetings and Requests:
Personal visits and verbal appeals were also made on [dates], but these efforts were either ignored or met with
undue delay.
3. Final Attempt for Amicable Resolution:
A formal grievance was filed on [date], but no action or acknowledgment was provided, necessitating this legal
step.

Legal Grounds

1. The actions/inactions of the government/department contravene the following legal provisions:

o [Specify sections of relevant laws, such as breach of the Right to Information Act, failure to comply with
administrative law, or violation of constitutional rights under Articles 14/21 of the Constitution].
2. Relevant Judicial Precedents:
o In similar cases, courts have upheld the plaintiff's right to relief, such as in [case name, citation], where
[brief description of precedent].

Notice Period

1. In compliance with Section 80 CPC, this notice serves to provide the required two-month period for:
a) Responding to my client’s grievances.
b) Initiating corrective measures or amicable resolution.
2. If no satisfactory resolution is provided within this period, my client shall proceed with filing a civil suit against
the Government/Department in the competent court of law.

Documents Enclosed

1. Draft copy of the plaint intended to be filed in the court.

2. Copies of supporting documents, including:
 o [Name of Document 1]
o [Name of Document 2]
o [Any other supporting documents].

Yours faithfully,
[Signature]
[Name of the Advocate]
[Complete Address]
[Contact Details]

Copy to:

• [Include other relevant parties, if necessary].

c. Notice under Section 434 of the Companies Act

The Companies Act serves as the cornerstone of corporate governance in India, providing a structured legal framework
for the establishment, management, and dissolution of companies. Within this framework, Section 434 holds particular
significance as it governs the transfer of specific pending proceedings to the National Company Law Tribunal (NCLT) or
its Appellate Tribunal. This section has been designed to streamline judicial processes, ensuring that corporate disputes
and regulatory matters are handled by specialized tribunals for efficiency and expertise.

Section 434 is pivotal in facilitating the transition from the Companies Act, 1956, to the more contemporary and
comprehensive Companies Act, 2013, and the Insolvency and Bankruptcy Code (IBC), 2016. The section provides clarity
on which cases are to be transferred, the timelines for such transfers, and the procedural safeguards involved. It also
stipulates the jurisdictional boundaries between the NCLT, Appellate Tribunals, and traditional courts, thereby creating a
cohesive framework for resolving corporate disputes.

This guide seeks to provide a detailed analysis of Section 434, focusing on its application, implications, and practical
significance for companies, professionals, and legal practitioners. Through this exploration, readers will gain a clear
understanding of:

1. The Scope of Section 434:

o Which proceedings are subject to transfer to the NCLT.
o Exemptions and cases retained under the jurisdiction of High Courts or District Courts.
2. Procedures and Obligations:
o Steps involved in transferring cases and ensuring compliance with procedural requirements.
o The significance of timelines and rules prescribed by the Central Government.
3. Impact on Stakeholders:
o How Section 434 affects companies undergoing litigation, voluntary winding up, or corporate insolvency.
o The role of legal and corporate professionals in ensuring smooth transitions and compliance.
4. Practical Guidance for Responding:
o Best practices for handling notices, understanding transfer implications, and engaging with tribunals.
o Tips for preparing accurate and timely responses to ensure compliance with statutory obligations.

The provisions under Section 434 aim to enhance efficiency, accountability, and transparency in handling corporate
matters. However, navigating its complexities can be challenging. Companies and individuals must adopt a meticulous
approach, paying close attention to legal requirements and deadlines, to avoid potential penalties or disruptions.

Section 434: Transfer of Certain Pending Proceedings

This section under the Companies Act, 2013, lays out the framework for transferring specific proceedings under the
earlier Companies Act, 1956 to the newly constituted National Company Law Tribunal (NCLT) and, where applicable, to
the Appellate Tribunal. The section addresses the types of cases that are transferred, the stages at which such transfers
occur, and the procedures to be followed. Below is a breakdown:

Key Provisions

1. Transfer of Cases from the Company Law Board (CLB) to the NCLT

• All cases pending before the Company Law Board (CLB) on the date notified by the Central Government are to
be transferred to the NCLT.
• The NCLT will dispose of such cases in accordance with the provisions of the Companies Act, 2013.

2. Appeals Against CLB Decisions

• Any decision or order of the CLB made before the notified date can be appealed to the High Court within 60
days from the date of communication.
• A further period of 60 days may be granted if sufficient cause for delay is shown.

3. Transfer of Proceedings Pending in Courts

• Winding Up Cases:
o Cases at a stage prescribed by the Central Government shall stand transferred to the NCLT.
o After the commencement of the Insolvency and Bankruptcy Code (Amendment) Ordinance, 2018,
parties may apply to transfer pending winding-up cases to the NCLT. The NCLT will treat such cases as
applications for initiating the Corporate Insolvency Resolution Process (CIRP) under the Insolvency and
Bankruptcy Code (IBC), 2016.
• Non-Winding Up Cases:
o Proceedings other than winding up, where orders have not been reserved by the High Courts, will also
be transferred to the NCLT.

4. Cases Excluded from Transfer to NCLT

• Cases under the Companies Act, 1956, not transferred to the NCLT, will continue to be governed by:
o Provisions of the Companies Act, 1956.
o Companies (Court) Rules, 1959.
• Voluntary Winding Up:
o Cases where notice of the resolution for voluntary winding up was given under Section 485(1) of the
Companies Act, 1956, but where the company was not dissolved before 1st April 2017, will also remain
governed by the Companies Act, 1956 and the Companies (Court) Rules, 1959.

5. Rule-Making Authority

The Central Government has the authority to make rules to ensure timely and orderly transfer of all cases to the NCLT
or the Appellate Tribunal as per this section.

Conclusion

Section 434 plays a critical role in ensuring a smooth transition from the older regulatory framework under the
Companies Act, 1956, to the more streamlined and efficient system under the Companies Act, 2013, and the IBC, 2016.
It also reinforces the jurisdiction of the NCLT as the central authority for corporate legal disputes.
SPEED POST/REGISTERED POST WITH A/D

To
[Name of the Addressee]
[Address]

Dated: [Insert Date]

Subject: Notice under Section 434(a) of the Companies Act, 1956 for Winding Up Due to Outstanding Debt of Rs. [Insert
Amount] (Rupees [Insert Amount in Words] Only) Along with Interest @ 18% Per Annum Pending Payment

Dear Sir(s),

We write under instructions of our client, [Client’s Name], having its registered office at [Client’s Address], and state as
follows:

1. Loan Agreement:
o On or about [Insert Date], you approached our client’s principal officers to avail of a loan of Rs. [Insert
Amount] (Rupees [Insert Amount in Words] only) (hereinafter referred to as the “said loan”).
o The loan was agreed to bear interest at the rate of [Insert Percentage]% per annum and was to be
repaid within [Insert Period], with the maturity date being [Insert Date].
2. Disbursement of Loan:
o On [Insert Date], our client disbursed Rs. [Insert Amount] (Rupees [Insert Amount in Words]) to you
through RTGS, UTR No. [Insert UTR No.], from its bank account No. [Insert Account No.] to your bank
account No. [Insert Account No.] held with [Bank Name].
3. Partial Payment:
o On or about [Insert Date], you repaid Rs. [Insert Amount] (Rupees [Insert Amount in Words]), reducing
the outstanding principal amount to Rs. [Insert Amount] (Rupees [Insert Amount in Words]).
4. Issuance of Cheque:
o To discharge the outstanding liability, you issued cheque No. [Insert Cheque No.], dated [Insert Date],
drawn on [Bank Name], for Rs. [Insert Amount].
5. Cheque Dishonour:
o The cheque was presented within its validity period to [Client’s Bank Name], but it was dishonoured
due to [Reason for Dishonour], as per the dishonour memo dated [Insert Date].
6. Failure to Repay:
o Despite repeated reminders and a legal notice dated [Insert Date], you have failed to repay the
outstanding amount of Rs. [Insert Amount] (Rupees [Insert Amount in Words]) along with accrued
interest @ 18% per annum from the maturity date until full repayment.
7. Malafide Intent:
o Your actions to withhold repayment have caused our client severe financial and reputational harm. It
appears you have willfully retained the loan amount with malafide intent.
8. Legal Demand:
o Under instructions from our client, we hereby demand that you pay Rs. [Insert Amount] (Rupees [Insert
Amount in Words]) along with interest @ 18% per annum calculated from [Insert Date] until the date of
repayment, within 21 days from the receipt of this notice. Payment must be made by Pay
Order/Demand Draft in favour of [Client’s Name].

Consequences of Non-Compliance:
 • Failure to comply with this notice will compel our client to initiate winding-up proceedings against your
company under Sections 433, 434, and 439 of the Companies Act, 1956, at your sole risk, costs, and
consequences.
• Additionally, our client reserves the right to pursue any other legal remedies, both civil and criminal, as available
under applicable laws.

Please treat this as a statutory notice under Section 434(a) of the Companies Act, 1956, as well as under the Interest Act,
1978. This notice is without prejudice to our client’s rights in any other legal proceedings.

Kindly acknowledge receipt of this notice.

Thanking you.
Yours sincerely,
[Advocate’s Name]
[Law Firm’s Name]
[Address]

Copy to:
[Client’s Name]\

d. Reply to Notice

1. Acknowledge Receipt of the Notice

• Timely Response: Ensure that the response is sent within the timeframe specified in the legal notice. This helps
avoid any implication that you failed to address the matter.
• Confirm Receipt: Clearly state that you acknowledge receiving the legal notice. This establishes that you are
aware of the sender’s claims.

2. Verify the Claims

• Understand the Allegations: Carefully read the legal notice to understand the specific claims and any relevant
details. This will help in assessing the validity of the notice and deciding on the next steps.
• Gather Evidence: Collect any documents, communications, or evidence that relate to the claims made in the
notice. This will strengthen your response if you need to refute any allegations.

3. Consult with a Legal Professional

• Seek Expert Advice: Even if you believe that the claims are frivolous, consulting a lawyer can provide a more
comprehensive understanding of the legal implications and possible courses of action.
• Legal Strategy: A lawyer can help you craft a response that aligns with the best legal strategy, whether it’s
addressing the issue, mitigating risks, or preparing for potential litigation.

4. Decide on the Nature of the Reply

• Factual and Concise: The response should be clear, factual, and concise. Avoid emotional language or
unnecessary details.
• Deny, Admit, or Modify: Depending on the situation, the reply should either deny the claims, admit them if true
(and explain or justify), or provide a modified version of events.
• Include Evidence: If relevant, include references to documents or other proof to support your stance.

5. Tone and Language

 • Professional Tone: Keep the response formal and respectful. Avoid confrontational or aggressive language as it
can escalate the situation.
• Clarity and Precision: Use clear and precise language to avoid ambiguity. This helps the recipient understand
your position without misinterpretation.

6. Address Legal Points and Counterclaims

• Highlight Legal Defenses: If applicable, reference specific laws or legal precedents that support your position.
• Raise Counterclaims: If you have valid counterclaims against the sender, include them in your response to make
your stance more robust.

7. Mention Settlement or Negotiation Options

• Propose Solutions: If the notice is potentially resolvable without court intervention, you can suggest alternative
dispute resolution mechanisms such as negotiation or mediation.
• Indicate Willingness to Settle: If you’re open to discussing or settling, clearly state this in the response to show
good faith.

8. Keep Copies and Document Everything

• Record Keeping: Keep a copy of your response and any related documents for your records. This could be vital
in future legal proceedings.
• Proof of Delivery: Ensure that the response is sent through a method that provides proof of delivery (e.g.,
registered mail, courier with tracking, or email with read receipts).

9. Review Before Sending

• Proofread Carefully: Double-check the response for grammatical errors, clarity, and the accuracy of the
information provided.
• Review with Legal Counsel: Before sending it out, have your lawyer review the response to ensure it meets legal
standards and adequately addresses the issues.

10. Be Prepared for Further Action

• Anticipate a Reply: The sender may respond to your reply, which could lead to further negotiations or legal
proceedings.
• Prepare for Litigation: If the matter escalates to court, having a well-prepared response can be helpful in
forming your defense or claim.

Here's a detailed checklist for drafting a reply-cum-legal notice to ensure it is comprehensive, professional, and
effective:

1. Technical Details

• Document Date: Clearly state the date on which the reply-cum-legal notice is drafted.
• Date of Received Notice: Mention the date when the original legal notice was received.
• Sender's Details: Include the full name and address of the sender of the original legal notice.
 • Client’s Details: Ensure the full name, address, and contact details of the client are mentioned to properly
identify them.
• Reference Number: If applicable, include any reference number from the original legal notice or other relevant
documents.

2. Title and Formatting

• Document Title: Clearly label the document as a “REPLY-CUM-LEGAL NOTICE” in bold, capitalized letters,
centered at the top.
• Subject Line: Specify the subject of the reply for clarity and quick understanding.

3. Addressing Alleged Facts

• Detailed Response to Each Allegation: Go through each point raised in the original notice and respond to it.
Ensure no allegations are left unaddressed, as this could be construed as an admission.
• Use Numbered or Bulleted Points: This helps in ensuring clarity and organization, making it easier for the reader
to cross-reference the original allegations.

4. Client’s Version of Events

• Provide the Client's Perspective: Include a clear and thorough explanation of the client’s version of events. This
is essential to communicate the client’s stance and can help refute or clarify the original claims.
• Support with Evidence: If possible, refer to relevant documents or proof that support the client’s version.

5. Legal Grounds and Citations

• Cite Relevant Laws: If applicable, reference any statutes, regulations, or case laws that support the client’s
position.
• Legal Precedents: Mention any relevant case law that could bolster the client’s arguments or refute the
allegations.

6. Proposed Solutions and Next Steps

• Settlement Offer: If applicable, express willingness to discuss the matter further or propose a resolution to
avoid litigation.
• Request for a Response: Include a statement asking for a timely reply or action from the sender, indicating the
client’s readiness to address the matter amicably.

7. Professional Tone and Language

• Maintain Formal Tone: Use professional, neutral language throughout the document.
• Avoid Emotionally Charged Language: Stay objective and avoid confrontational or inflammatory language.

8. Conclusion and Final Statements

• Summarize the Client’s Position: End with a concise summary of the client's stance and the intention to seek an
amicable resolution.
• Indicate Future Action: Mention that the client will be prepared to respond to further communications or take
necessary action if needed.

9. Signature and Documentation

 • Signature of the Client: Ensure the client signs the document at the end (if required).
• Signature of the Lawyer: Include the signature of the lawyer or law firm handling the case, along with the
lawyer’s name, designation, and contact information.
• Attachments: Include copies of any supporting documents or evidence as annexures.

10. Proof of Delivery

• Method of Sending: Specify how the reply was sent (e.g., registered mail, email with receipt confirmation,
courier).
• Proof of Delivery: Ensure that the method used provides proof of delivery, such as tracking numbers or read
receipts.

Final Reminders

• Review and Proofread: Check for spelling, grammatical errors, and ensure that all points are addressed clearly.
• Consult Legal Counsel: Have the document reviewed by a lawyer to verify that it meets legal standards and
includes all necessary elements.
• Avoid Delays: Ensure that the response is sent promptly to comply with any deadlines outlined in the original
legal notice.

By following this checklist, the reply-cum-legal notice will be comprehensive, professional, and positioned to address the
issue effectively, whether to resolve the dispute or prepare for further legal proceedings.

REPLY TO LEGAL NOTICE

To,
Surendra Kumar Pandey
S/o Ram Kripal Pandey
R/o H.N. RZG-366A,
G-201 – G-407 Rajnagar, Part-2,
Palam New Delhi, South West, Delhi.

Sir/Ma’am,

Under the instructions and authority of Mr. Rajesh Mahata, Managing Partner, Grihst Vihar Infratech, having its office at
2/412, Vikalp Khand, Malhour Road, Gomtinagar, Lucknow, I have been authorized to reply to your Legal Notice dated
10.08.2023 sent to my client.

Para-wise Reply to the Legal Notice:

1. Regarding Para 1:
o The contents of para 1 of the Legal Notice are true and are agreed upon. It is confirmed that you, the
noticee, had booked a plot in the project by Grihst Vihar Infratech on 15.07.2022.
2. Regarding Para 2 and Para 3:
o The contents of these paragraphs are matters of fact and require no specific reply.
3. Regarding Para 4:
o The allegations made in para 4 of the Legal Notice are false, baseless, and deliberately imposed against
my client.
 4. Regarding Para 5:
o While the contents of para 5 require no reply, it is pertinent to mention that you, the noticee, had
signed the booking form and agreed to the terms and conditions explicitly stated therein with free
consent and without any pressure or undue influence.
5. Non-compliance with Terms:
o As per the booking form, the allottee is required to:
▪ Pay 25% of the total amount of the plot within 30 days.
▪ Initiate the registry process within three months from the booking date.
o Neither of these conditions has been fulfilled by you, the noticee.
6. Regarding Para 6:
o The contents of para 6 are not valid under the new norms of the company. The rates of the plots have
been modified and amended in line with current company policies.
7. Offer of Plot:
o My client is ready to offer the plot to you; however, the new rates and modified norms of the company
will apply to you.
8. Amendment of Rates:
o The booking form does not restrict my client from amending the rates of the plots. Nor does it give the
buyer/client the right to freeze the property price.

In light of the facts and circumstances mentioned above, it is stated that:

• The legal notice and the cause of action are void, as no damages have been caused to you, the noticee.
• Therefore, my client is not liable to compensate or indemnify you in any manner.
• If you wish to cancel the booking and withdraw the booking form, 30% of the deposited amount shall be
deducted, and the remaining amount will be refunded as per the cancellation policy stated in the booking form.

Note: A copy of this reply, along with the legal notice, is retained in my office for reference in case of any further legal
proceedings.

Lucknow
Dated: [Insert Date]

Regards,
Srijan Sinha
Advocate

CC:
Adv. Swatantra Kumar Dubey
New Advocate Building, Civil Court,
Near Central Lockup, Lucknow-226001.

e. General Power of Attorney

A Power of Attorney (POA) is a legal document through which an individual, known as the principal, grants another
person, called the agent or attorney-in-fact, the authority to act on their behalf in specific matters. These matters could
include managing finances, dealing with property, making legal decisions, or handling healthcare-related issues. The
scope of authority granted can vary depending on the type of POA and the principal's requirements.
The purpose of a POA is to ensure that the principal’s affairs can be managed even when they are unavailable,
incapacitated, or otherwise unable to perform the required actions themselves. It is particularly useful in situations such
as illness, disability, or absence from the location where decisions must be made.

Key Features of a Power of Attorney

A POA allows the agent to act in the principal’s best interest under the framework defined by the document. However, it
also comes with specific conditions:

1. Scope of Authority: The agent may have broad powers to manage all aspects of the principal’s affairs or limited
authority for specific tasks, depending on the type of POA.
2. Duration and Termination: A POA typically ends if the principal revokes it, passes away, or if a court invalidates
the document. It may also terminate if the agent resigns or becomes incapable of fulfilling their duties. In some
jurisdictions, a divorce can nullify a POA granted to a spouse.

Types of Power of Attorney

1. General Power of Attorney (GPA)

A General Power of Attorney gives the agent broad powers to manage the principal’s affairs. This includes handling
financial transactions, buying or selling property, and entering into contracts on behalf of the principal.

This type of POA is ideal for individuals who want someone to handle their comprehensive affairs during temporary
absences or in non-critical situations. However, because it grants significant control, choosing a trustworthy and
competent agent is crucial.

2. Limited or Special Power of Attorney (LPOA)

A Limited Power of Attorney restricts the agent’s authority to specific tasks or responsibilities. For example, the agent
may only be authorized to sell a particular property, manage a bank account, or represent the principal in one legal
transaction.

This type of POA is suitable when the principal only needs assistance with clearly defined matters. To avoid
misunderstandings or misuse of authority, it is essential to specify the agent’s responsibilities in detail within the
document. Legal counsel is often recommended to ensure the scope is clearly articulated.

3. Durable Power of Attorney (DPOA)

A Durable Power of Attorney remains valid even if the principal becomes incapacitated and unable to communicate or
make decisions. This durability clause ensures that the agent can continue to manage the principal’s affairs, even in
cases of severe illness or disability.

For instance, if the principal becomes comatose but wants their spouse or trusted individual to handle financial
transactions or healthcare decisions, a DPOA ensures continuity. This type of POA is particularly beneficial for long-term
planning, especially in scenarios involving chronic illness or aging.

4. Medical or Healthcare Power of Attorney (HPOA)

A Medical or Healthcare Power of Attorney authorizes the agent to make healthcare and medical treatment decisions on
behalf of the principal if they are unable to do so. This can include choosing treatments, deciding on care facilities, or
making end-of-life decisions.

Healthcare POAs are often durable, as they account for scenarios where the principal may be incapacitated due to illness
or injury. This type of POA ensures that the principal’s preferences regarding medical care are respected, even when
they cannot communicate these preferences directly.

Stamp Duty for Power of Attorney

The cost of registering a Power of Attorney depends on the relationship between the principal and the agent, as well as
the purpose and scope of the POA. The details of stamp duty in India are as follows:

1. For General Power of Attorney:

o If conferred to a close relative (e.g., father, mother, spouse, children) without consideration, the stamp
duty is Rs. 500/-.
o For agents who are not close relatives or when consideration is involved, the stamp duty is calculated
based on the property’s market value or the consideration amount, whichever is higher.
2. Registration Fees:
o Close relatives without consideration: A fixed fee of Rs. 100/-.
o Others: The registration fee is Rs. 10/- per Rs. 1,000/- of market value or consideration, with a minimum
of Rs. 100/- and a maximum of Rs. 30,000/-.
3. For Special Power of Attorney:
The stamp duty is fixed at Rs. 100/-.

Note: Stamp duty rates vary across Indian states. It is advisable to consult a legal expert to determine the exact stamp
duty applicable for a specific POA.

Authentication Process for Power of Attorney Documents

Authentication of the POA ensures its enforceability and validity. The process differs based on where the POA is
executed:

1. Within India:
The POA can be authenticated by a Registrar or Sub-Registrar within whose district the principal resides.
2. Outside India:
For a POA executed abroad, authentication must be done by:
o A Notary Public,
o A Court, Judge, or Magistrate,
o An Indian Consul, or
o A representative of the Central Government.

General Power of Attorney vs. Special Power of Attorney

A Power of Attorney (POA) is a versatile legal tool that can be tailored to meet specific or comprehensive needs. It
empowers an individual, referred to as the agent or attorney-in-fact, to act on behalf of another, the principal. POAs
primarily fall into two categories: General Power of Attorney and Special Power of Attorney. Understanding the
distinctions between the two is essential when deciding which option best suits the principal's requirements.

General Power of Attorney

A General Power of Attorney grants broad and extensive powers to the agent to manage a wide range of the principal’s
affairs. This type of POA is typically used when comprehensive management of legal, financial, or property matters is
required.

Key Features of General Power of Attorney:

• Broad Authority: The agent can handle various tasks, including managing bank accounts, conducting real estate
transactions, handling business operations, and resolving legal disputes.
• Convenience: It is particularly useful for principals who cannot manage their affairs due to absence or
incapacity.
• Termination: Unless specified as "durable," a General POA ceases to be effective if the principal becomes
incapacitated.

Use Case:

For instance, if a principal is traveling abroad and requires someone to manage all their financial transactions or legal
responsibilities in their absence, a General POA would be appropriate.

Key Differences Between General and Special POA

Aspect General Power of Attorney Special Power of Attorney

Scope of Broad and covers multiple areas of the principal's
Limited to specific tasks or decisions.
Authority affairs.
Best suited for particular events or
Purpose Ideal for managing all-encompassing responsibilities.
transactions.
Ends upon completion of the specified task or
Duration Ends upon incapacity (unless durable).
time.
Can also be revoked but is naturally task-
Revocation Can be revoked at any time by the principal.
limited.

Conclusion

A Power of Attorney is a powerful legal tool that provides flexibility and security in managing affairs. Choosing between
a General and Special POA requires careful consideration of the principal's needs. Whether it is for comprehensive
management or specific transactions, the POA must be drafted meticulously, adhering to all legal requirements.
Consulting legal professionals ensures the document is prepared correctly and effectively serves the intended purpose.

GENERAL POWER OF ATTORNEY

KNOW ALL MEN BY THESE PRESENTS THAT I, [Insert Name] S/o. / W/o. [Insert Name], aged [Insert Age] years, residing
at No. [Insert Address], do hereby nominate, constitute, and appoint Sri./Smt. [Insert Name], S/o. / W/o. [Insert Name],
aged about [Insert Age] years, residing at [Insert Address], as my true and lawful power of attorney holder to do the
following acts, deeds, and things on my behalf and in my name in respect of the schedule property.
Whereas, I am the sole and absolute owner in possession of the schedule property, which is my self-acquired property.

Whereas, I am unable to maintain, manage, and look after the affairs of the said property, I hereby appoint the said
attorney holder to perform the following acts, deeds, and things on my behalf and in my name with full authority:

1. Representation:
o To appear before the authorities of the BDA Corporation, Revenue Office, Village Panchayat Office, or
any other state or central government office or relevant authority, and represent me in all respects
concerning the schedule property.
2. Payment of Dues:
o To make payments of taxes, rates, cesses, assessments, and any other dues as required from time to
time, and to obtain sanctions or approvals from any competent authority.
3. Appointment of Legal Representatives:
o To appoint advocates, pleaders, prosecutors, or any other competent authority for all legal and
administrative purposes.
4. Legal Proceedings:
o To file civil or criminal cases in any competent court and to represent and complete the proceedings on
my behalf.
5. Document Handling:
o To apply for and obtain relevant documents concerning the schedule property and to undertake
activities such as construction or renovation on the property as necessary.
6. Execution of Documents:
o To sign documents, papers, agreements, affidavits, forms, vakalaths, receipts, declarations, etc., for
deriving any benefits or profits related to the schedule property.
7. Restrictions on Alienation:
o This power of attorney does not grant the attorney holder the authority to alienate, sell, or transfer the
property in any manner.

I hereby agree to ratify and confirm all lawful acts done by my said attorney holder by virtue of this document.

SCHEDULE

Property Details:

• Property Number: __________

• Measuring: __________

Boundaries:

• On the East: __________

• On the West: __________
• On the South: __________
• On the North: __________

[Full details of the property number such as Khata number, street/road with reference to the local authority records and
boundaries shall be furnished. If the property is a Flat/Apartment, include details of the property, such as flat number,
floor number, name of the apartment, and other identifying information.]

Stamp Duty: Paid as per Article 41(f) of the Schedule to the Karnataka Stamp Act, 1957.
IN WITNESS WHEREOF, I, the executant above named, have signed this General Power of Attorney on this [Insert Day]
day of [Insert Month], [Insert Year].

WITNESS:

1.
2.

EXECUTANT:
[Signature and Name of the Executant]

[Ensure all relevant property details and names are accurately filled for legal validity.]

f. Will

A Will or testament is a legal document created by a person, known as the testator, that outlines how their estate
(assets, properties, and possessions) will be managed and distributed after their death. The document typically appoints
an executor—an individual or entity tasked with ensuring the Will’s provisions are carried out.

In India, a person must be at least 21 years of age to create a legally valid Will.

Scope of a Will

1. Self-Acquired Properties:
o A Will can only be made for properties that the testator has personally acquired and owns outright.
o Ancestral properties, which are inherited through lineage and governed by laws of inheritance, cannot
be included in the Will unless allowed under specific legal provisions.
2. Future Properties:
o A Will can also include properties or assets that the testator expects to acquire after the execution of
the Will.
3. Effective Post-Death:
o The provisions in a Will only come into force after the death of the testator.
o The testator can revoke or modify the Will anytime during their lifetime, provided they are of sound
mind.
4. Disinheritance with Caution:
o A testator cannot arbitrarily disinherit close family members, especially if doing so leaves them in
poverty.
o If the Will excludes family members in favor of charity or others, the testator must provide strong and
legally justifiable reasons, as the court may examine the rationale.

Need for a Will

A Will provides several advantages:

 1. Avoids Family Disputes:
o A well-drafted Will clarifies the testator’s intentions, helping to prevent or resolve disputes among heirs.
2. Overrides Intestate Succession Laws:
o Without a Will, property distribution follows inheritance laws, which may not reflect the testator’s
personal wishes. A Will ensures the property is divided according to the testator's intentions.
3. Comprehensive Property Distribution:
o The testator can list both movable (e.g., bank accounts, stocks) and immovable properties (e.g., land,
houses), ensuring all assets are accounted for and distributed fairly.
4. Fulfills Legal Formalities:
o A registered and properly drafted Will streamlines processes for transferring ownership of properties,
financial assets, or business interests.
5. Protects Against Bogus Claims:
o A Will minimizes the risk of fraudulent claims over the estate by serving as a legally enforceable
document.

Eligibility to Make a Will

For a Will to be valid, the testator must meet the following criteria:

1. Sound Mind:
o The testator must be mentally capable of understanding the implications of making the Will and
managing their affairs.
2. Free Will:
o The Will must be created voluntarily, without any coercion, undue influence, or pressure.
3. Knowledge of Contents:
o The testator must be fully aware of and agree to the provisions included in the Will.

ESSENTIAL ELEMENTS OF A VALID WILL

A valid Will in India is governed by the Indian Succession Act, 1925. The following are the essential elements:

1. Sound Mind and Legal Age:

o The testator must be of sound mind and above 18 years of age.
o Individuals of unsound mind or minors are barred from drafting a Will.
2. Free Consent:
o The Will must be created voluntarily, free from coercion, undue influence, force, or fraud.
o Any portion of the Will drafted under duress or improper influence is deemed invalid.
3. Listing of Assets:
o A comprehensive list of all assets, including property, savings, stocks, bonds, and other financial
instruments, must be provided.
o Care should be taken to avoid omitting any relevant information.
4. Division of Assets:
o The Will must clearly outline the division of assets to prevent disputes.
o If a minor is designated as a beneficiary, a custodian must be appointed.
5. Signatures and Witnesses:
o The Will must be signed by the testator and dated.
o Two witnesses must attest to the Will, confirming the testator's signature in their presence. Witnesses
enhance the Will’s credibility in legal proceedings.

IMPORTANCE OF A VALID WILL

The presence of a valid Will serves multiple critical purposes:

 1. Efficient Estate Planning:
o A Will ensures the testator's wishes are respected, streamlining estate distribution and preventing
family disputes.
2. Differentiation Between Nominee and Beneficiary:
o The Will distinguishes between the nominee, who temporarily holds assets, and the beneficiary, who
ultimately inherits them.
3. Protection of Minor Dependents:
o A Will allows the testator to allocate guardians and funds for the upbringing and education of minor
children.
o Without a Will, courts decide these matters, which may not align with the testator's wishes.
4. Management of Digital Assets:
o For social media personalities or those with digital income sources, the Will can appoint an executor to
manage digital presence and revenues after death.

ISSUES FACED IN THE ABSENCE OF A WILL

The absence of a Will can lead to various complications:

1. Legal Conflicts:
o Families may face disputes over the division of assets, leading to prolonged litigation.
2. Misappropriation of Assets:
o Distant relatives or creditors may exploit the situation to claim the deceased's assets.
3. Unidentified Assets:
o Family members may remain unaware of certain assets, leading to loss or misuse.
4. Digital Identity Theft:
o Without an appointed executor, social media accounts and online assets may be vulnerable to
exploitation.

ROLE OF AN EXECUTOR

An executor plays a vital role in ensuring the Will’s purpose is fulfilled:

1. Asset Distribution:
o The executor facilitates the smooth transfer of assets to the beneficiaries.
2. Legal Compliance:
o They oversee the legal formalities and ensure no gaps in the asset transfer process.
3. Trusted Individual:
o Executors are often close family members or friends trusted by the testator.

CONCLUSION

Drafting a Will is a straightforward yet essential process that protects the testator's legacy and prevents future disputes.
It ensures assets are distributed according to the testator’s wishes and offers financial security to heirs and dependents.

DRAFT OF WILL

I, ______________, son of Shri _______________, aged __ years, resident of _____________________________, do

hereby revoke all my former Wills, Codicils, and Testamentary dispositions made by me. I declare this to be my last Will
and Testament.
I maintain good health and possess a sound mind. This Will is made by me of my own independent decision and free
volition. I have not been influenced, cajoled, or coerced in any manner whatsoever.

I hereby appoint my ________________ as the sole Executor of this WILL.

The name of my wife is _________________. We have two children, namely:

1.
2.

I own the following immovable and movable assets:

1.
2.

• One Flat No. ___ in _______________________.

• Jewellery, ornaments, cash, National Saving Certificates, Public Provident Fund, shares in various companies,
cash in hand, and also with certain banks.

All the assets owned by me are self-acquired properties. No one else has any right, title, interest, claim, or demand
whatsoever on these assets or properties. I have full right, absolute power, and complete authority over these assets or
in any other property which may be substituted in their place or places, or which may be acquired or received by me
hereafter.

I hereby give, devise, and bequeath all my properties, whether movable or immovable, whatsoever and wheresoever, to
my wife, _____________________, absolutely forever.

IN WITNESS WHEREOF, I have hereunto set my hands on this ____ day of __, 20 at ____________.

TESTATOR/TESTATRIX

SIGNED by the above-named Testator/Testatrix as their last Will and Testament in our presence, who appear to have
perfectly understood and approved the contents in the presence of both of us present, at the same time, who in their
presence and in the presence of each other, have hereunto subscribed our names as Witnesses.

WITNESSES:

1.
2.

g. Agreement to SELL

An Agreement to Sell is a legal contract in which a seller agrees to transfer ownership of an asset, typically immovable
property such as land or buildings, to a buyer at a specified price. This agreement is often a precursor to the actual sale
deed, allowing both parties to outline and agree upon the terms and conditions before completing the legal transfer.

The Agreement to Sell, also called a sale agreement, details the obligations and rights of both the buyer and the seller
and forms the basis for the eventual transfer of ownership through a registered sale deed.

Importance of an Agreement to Sell

An Agreement to Sell plays a vital role in property transactions for the following reasons:

1. Legally Binding Framework:

It ensures that both parties are committed to fulfilling the agreed-upon terms, reducing risks of
misunderstandings or disputes.
2. Outline of Terms and Conditions:
This document specifies crucial aspects such as the sale price, payment terms, possession timeline, and
contingencies, leaving no room for ambiguity.
3. Fraud Prevention:
By documenting all material facts about the property and the agreed conditions, it protects both buyers and
sellers from fraudulent practices or misrepresentation.
4. Evidence in Disputes:
If disagreements arise later, the Agreement to Sell can serve as legal evidence in court.

Stamp Duty and Registration in Maharashtra

The Maharashtra Stamp Act, 1958 governs the stamp duty and registration requirements for an Agreement to Sell. Key
points include:

• Stamp Duty: A mandatory fee calculated as a percentage of the property's sale price or market value.
• Registration Fee: This fee, also a percentage of the sale price/market value, must be paid for registering the
agreement with the Office of the Sub-Registrar of Assurances.
• Registration Requirement: The document must be registered to ensure its enforceability under the law.

Rights of the Seller Under an Agreement to Sell

The seller is entitled to the following rights:

1. Receive Sale Consideration:

The seller has the right to receive the agreed payment from the buyer.
2. Deliver Possession:
Upon receiving payment, the seller is obligated to hand over possession of the property.
3. Enforce Specific Performance:
In case of a buyer’s breach, the seller may file a suit to enforce the contract.
4. Terminate the Contract:
If the buyer breaches the agreement, the seller can terminate the contract.
5. Withdraw from the Sale:
The seller can withdraw from the transaction if there is no agreement or if either party backs out under
permissible conditions.

Elements of a Contract of Sale

The Sale of Goods Act, 1930 outlines the following essential elements for a contract of sale:

1. Two Parties:
A sale contract requires at least two parties — one as the seller and the other as the buyer.
2. Movable Property:
The subject matter of the contract must be movable property, including existing goods, future goods, or goods
in the seller's possession.
3. Consideration of Price:
The property must be sold for a price, which can be partly in money and partly in kind but not entirely in kind.
4. Transfer of Ownership:
Ownership must transfer from the seller to the buyer upon fulfilling the terms of the contract.
 5. Absolute or Conditional:
The sale may be immediate (absolute) or subject to certain conditions.
6. Essentials of a Valid Contract:
Elements like competency of the parties, legality of object, and consideration must also be present to constitute
a valid contract.

By ensuring these elements are met, a contract of sale achieves legal enforceability and protects the interests of both
parties.

Stamp Duty on an Agreement to Sell

In India, stamp duty is a government levy imposed on certain legal documents, including agreements to sell immovable
property. The buyer is typically responsible for paying this duty. However, the exact amount and conditions depend on:

1. State-Specific Rules:
Each state has its own regulations and rates for stamp duty under its respective stamp duty legislation.
2. Nature of the Transaction:
Factors like whether the transaction involves a sale, purchase, lease, or exchange affect the duty payable.
3. Value of the Property:
Stamp duty is calculated as a percentage of the property’s market value or the consideration amount stated in
the agreement, whichever is higher.

AGREEMENT TO SELL

This Agreement to Sell is executed at Gurgaon on this ___ day of _____________ between:

Parties:

1. First Party:
Shri _________________________ S/o __________________________ & Smt. __________________________ W/o
______________________, residents of
______________________________________________________________________________________ (hereinafter
referred to as the "First Party").

2. Second Party:
Shri _________________________ S/o __________________________ & Smt. __________________________ W/o
______________________, residents of
______________________________________________________________________________________ (hereinafter
referred to as the "Second Party").

The terms "First Party" and "Second Party" shall include their respective heirs, legal representatives, successors,
administrators, executors, and assigns.

Recitals:

1. The First Party is the allottee of Apartment No. ____ on the ____ Floor of Tower ____, having a super area of
approximately ____ sq. ft. in the project ________________, located at Sector ____, Gurgaon, Haryana. The
apartment includes one car parking space and is hereinafter referred to as the "Said Property."
 2. The First Party had originally purchased the Said Property from M/s _____________________ via a Buyer
Agreement dated _______________.

Terms and Conditions:

1. Sale Consideration:

The First Party agrees to sell and the Second Party agrees to purchase the Said Property for a total sale consideration of
₹_________ (Rupees ____________________________ Only), which includes the following components:

Component Amount (₹)

Basic Sale Price
External Development Charges (EDC)
Internal Development Charges (IDC)
Car Parking
Interest-Free Maintenance Security (IFMS)
Power Backup Charges
Preferential Location Charges (PLC)
Club Membership Fees
Service Tax
Total:

2. Payment Details:

2.1. The First Party confirms that they have paid ₹_________ (Rupees ______________________ Only) to M/s
___________________ under a Construction Link Payment Plan.

2.2. The Second Party has paid an advance of ₹_________ (Rupees ______________________ Only) to the First Party via
the following mode:

S. No. Cheque No. Date Drawn On Amount (₹)

1.
2.
3.

2.3. The balance consideration of ₹_________ (Rupees ______________________ Only) shall be paid as follows:

• ₹_________ (Rupees ______________________ Only) to the First Party on or before ___________.

• ₹_________ (Rupees ______________________ Only) directly to M/s ______________ as per their demand.

3. Additional Costs:

3.1. Stamp duty, service tax, and registration charges shall be borne by the Second Party.

3.2. Any changes in the super area or additional charges levied by M/s _______________ shall be the responsibility of
the Second Party.
4. Assurance and Liabilities:

4.1. The First Party assures the Second Party that the Said Property is free from all encumbrances, including prior sale,
gift, exchange, or court injunction.

4.2. Any pending interest or dues up to the date of nomination shall be borne by the First Party.

5. Transfer and Registration:

5.1. The Second Party may register or nominate the Said Property in their name, their nominee’s name, or any third
party's name.

5.2. The First Party shall cooperate in all formalities and hand over all original documents at the time of
transfer/registration.

6. Default and Forfeiture:

6.1. If the First Party refuses or neglects to transfer the Said Property, the Second Party may seek specific performance
through a competent court.

6.2. If the Second Party defaults on payment, the First Party may forfeit ₹_________ (Rupees ______________________
Only) as advance money, refund the balance, and cancel this agreement.

7. Jurisdiction:

All disputes arising from this Agreement shall be subject to the exclusive jurisdiction of the courts in Gurgaon.

Execution:

In Witness Whereof, the parties have signed this Agreement on the date mentioned above in the presence of the
witnesses.

Witnesses:

WITNESSES:

1. Mr. ---------------------------- S/o ----------------------------- & Mrs. --------------------------- W/o ---------------------------

FIRST PARTY

2. Mr.----------------------------- S/o ----------------------------- & Mrs. ---------------------------- W/o ---------------------------

SECOND PARTY

h. Sale-Deed
A Sale Deed is a legal document that formalizes the transfer of ownership of an immovable property from the seller
(vendor) to the buyer (vendee). It is the final agreement that completes the transaction and is legally binding once
signed and registered with the appropriate authority, usually the sub-registrar of the area where the property is located.

Often referred to as a Conveyance Deed, this document transfers the property’s title, rights, and interest to the buyer.
Unlike a sale agreement, which outlines the terms for a future sale, a sale deed confirms the immediate transfer of
ownership.

Importance of a Sale Deed

1. Legal Proof of Ownership:

A registered sale deed is the definitive proof of ownership and enables the buyer to assert legal rights over the
property.
2. Transfer of Title:
The sale deed ensures the buyer becomes the legal owner of the property. Without it, ownership remains with
the seller.
3. Comprehensive Transaction Record:
It documents all details of the property transaction, including parties involved, property description, and
payment specifics, ensuring transparency.
4. Fraud Prevention:
Registration of the sale deed provides public notice of the transaction, reducing the risk of fraudulent sales.
5. Mandatory for Registration:
As per the Indian Registration Act, 1908, registration of a sale deed is compulsory for immovable property
transactions exceeding a specific value. Failure to register renders the transaction legally invalid.

Essential Elements of a Sale Deed

A sale deed includes several critical components to ensure its enforceability and clarity:

1. Details of the Parties:

Names, ages, contact details, and addresses of the buyer and seller.
2. Property Description:
Detailed information about the property, such as its address, dimensions, construction details, and area.
3. Indemnity Clause:
Ensures that the seller clears all previous liabilities like loans, taxes, or charges on the property before the sale.
4. Payment Details:
Specifies the sale price, advance payment made, instalment details, and payment schedule.
5. Mode of Payment:
Clearly states the method of payment (e.g., bank transfer, cheque, or cash).
6. Possession of Property:
Indicates the date on which possession of the property will be transferred to the buyer.
7. Witnesses:
Requires at least two witnesses to sign the deed, one each from the buyer and seller’s side, along with their
complete details (name, age, and address).
8. Mandatory Disclosures by the Seller:
o Declaration of any defects or disputes related to the property.
o Assurance of clear title and proper execution of property conveyance.
o Confirmation that all property taxes and other charges are cleared.

Documents Required for Sale Deed Registration

To register a sale deed, the following documents are typically required:

 1. Draft of the Sale Deed: The prepared document to be executed and registered.
2. Power of Attorney (if applicable): If the sale is being conducted through an agent or representative.
3. Sanctioned Building Plan: For properties with structures, proof that the building is constructed as per approved
plans.
4. Title Documents: Proof of ownership and previous title deeds.
5. Previous Agreements (if applicable): If the property is being resold, include past agreements or sale records.
6. Latest Tax Receipts and Utility Bills: Proof of payment for property taxes and utility services.
7. No-Objection Certificate (NOC): Required for properties in cooperative societies or apartments.
8. Identity Proof of All Parties and Witnesses: Valid ID cards or documents of the buyer, seller, and witnesses.

Getting a Certified Copy of the Sale Deed

A certified copy of the sale deed can be obtained from the sub-registrar office where it was registered. The process
includes:

1. Application: File a request at the sub-registrar office and pay the required fee.
2. Processing Time: The certified copy is typically issued within 2 weeks.
3. Lost Sale Deed: If the original is lost, the property owner must:
o File a complaint at the nearest police station to get a non-traceable certificate.
o Publish an advertisement in the newspaper about the loss.
o Submit an affidavit and application, including the FIR, advertisement, and non-traceable certificate,
along with the relevant fee at the sub-registrar office.
o The affidavit must be notarized and include an undertaking stating the truthfulness of the information.
4. Processing Time for Replacement: The certified copy can be obtained in 2-4 weeks after fulfilling all
requirements.

Cancellation of a Sale Deed

Cancellation of a sale deed can occur under the following circumstances:

1. Mutual Consent: Both parties agree to cancel the sale deed by registering a cancellation deed.
2. Court Intervention: If one party seeks cancellation, they can file a suit under the Specific Relief Act, 1963. The
conditions include:
o The sale deed must be registered under the Indian Registration Act, 1908.
o The party seeking cancellation must prove the deed is voidable or could cause harm.
3. Court Decree: If the court grants cancellation, a copy of the decree is sent to the sub-registrar, who will update
the records accordingly.

Points to Remember When Executing a Sale Deed

• Ownership Transfer: The deed must indicate that ownership rights are transferred to the buyer upon purchase
completion.
• Clear Title: The property should be free of encumbrances and claims.
• Verification: The buyer should check the encumbrance status at the sub-registrar’s office.
• Utility and Tax Dues: Ensure all utility bills and property taxes are paid.
• No Dues: Confirm there are no pending mortgages, litigation, or charges on the property.
• Terms and Conditions: The sale deed should clearly state all terms and the responsibilities of both parties.

Conclusion
A sale deed is essential for establishing the buyer’s ownership rights over a property. It includes details about the
property, parties, and terms of the sale. Registering the sale deed with the sub-registrar office is crucial for the transfer
of property ownership; without registration, the transaction is not legally binding. Proper execution and registration of
the sale deed ensure legal protection and clarity for both the buyer and seller.

Difference Between Sale Deed and Sale Agreement

Aspect Sale Deed Sale Agreement

Nature of Refers to the immediate and complete sale of the
Outlines terms for a potential sale in the future.
Transaction property.
Risk associated with the property is transferred to Risk remains with the seller until the property is
Risk Responsibility
the buyer. sold.
It is an executory contract to be fulfilled in the
Execution It is an executed contract.
future.
Mandatory to register, with stamp duty paid by May or may not require registration, depending
Registration
the buyer. on state laws.
Transfers all rights and claims of the property to Provides the right to purchase the property in
Transfer of Rights
the new owner. the future.
Includes detailed property, party, and payment Focuses on terms and conditions for the sale’s
Content
information. execution.

SALE DEED FOR HOUSE

THIS DEED OF SALE is made and executed on this the ___________ day of ___________, ________ by:

1. Vendor(s):
Sri/Smt. ____________________, S/o, D/o, W/o. ____________________,
Aged about ________ years, Occupation: ____________________,
Resident of Door No. _________________________________.

(Represented by his/her agent)

OR
(Being a minor represented by Father/Mother/Brother/Guardian Sri/Smt. ____________________, S/o/D/o/W/o
____________________).

(Hereinafter referred to as the “VENDOR”, which term shall, unless repugnant to the context, mean and include their
heirs, executors, successors, legal representatives, administrators, and assignees).

IN FAVOUR OF:

2. Vendee(s):
Sri/Smt. ____________________, S/o, D/o, W/o. ____________________,
Aged about ________ years, Occupation: ____________________,
Resident of Door No. _________________________________.
(Being a minor represented by Father/Mother/Brother/Guardian Sri/Smt. ____________________, S/o/D/o/W/o
____________________).

(Hereinafter referred to as the “VENDEE”, which term shall, unless repugnant to the context, mean and include their
heirs, executors, successors, legal representatives, administrators, and assignees).

WHEREAS:

1. The Vendor is the sole and absolute owner of the house property bearing House No. ________, situated in
Survey No. ________, constructed on Plot No. ________, located at _______________ Village, ______________
Mandal, ______________ District, having acquired the property by way of Sale/Gift/Gift
Settlement/Partition/Will Deed, registered as Document No. ________ of SRO ____________, Volume No.
________, Page No. ________.
2. The Vendor has offered to sell the scheduled property to the Vendee for a total consideration of Rs. ________
(Rupees ________________ Only), which the Vendee has agreed to pay and has already paid in full to the
Vendor. The Vendor hereby acknowledges receipt of the entire consideration.
3. The Vendor has agreed to transfer, convey, and assign the said property to the Vendee free from all
encumbrances.

NOW THIS DEED OF SALE WITNESSETH AS FOLLOWS:

1. Sale and Transfer:

In consideration of the total sum of Rs. ________ (Rupees ______________ Only), already received by the Vendor, the
Vendor hereby transfers, conveys, and assigns all rights, title, and interest in the scheduled property described herein to
the Vendee as absolute owner, free from encumbrances, along with all appurtenances and easements.

2. Possession:
The Vendor has delivered vacant possession of the said property to the Vendee on the execution of this Deed of Sale.

3. Taxes and Dues:

The Vendor confirms that all taxes, rates, and dues payable on the said property up to the date of execution have been
paid. Any dues arising after the execution of this Deed shall be the responsibility of the Vendee.

4. Encumbrances:
The Vendor assures the Vendee that the property is free from any encumbrances, charges, liens, mortgages, or litigation
and is not subject to any government or private claims.

5. Title Deeds:
The Vendor has handed over all original title deeds and documents relating to the said property to the Vendee at the
time of execution of this Deed.

6. Cooperation for Transfer of Title:

The Vendor agrees to cooperate fully with the Vendee for effecting the transfer of title in the name of the Vendee in all
revenue and municipal records.

7. Indemnity:
The Vendor indemnifies the Vendee against all claims, losses, damages, and expenses arising from any defect in title or
misrepresentation regarding the said property.
8. Compliance with Laws:
The Vendor affirms that the land on which the house is constructed is not assigned land as per the provisions of the
relevant laws and is not under mortgage or obligation to any government agency.

SCHEDULE OF PROPERTY:
All that piece and parcel of house property measuring ________ sq. yards (________ sq. meters), consisting of ________
sq. ft. of built-up area, bearing Door No. ________, situated in Ward No. ________, Block No. ________, in the locality of
__________________, within the jurisdiction of _________ Municipality/Corporation, ________ Sub-District, ________
Registration District, bounded as follows:

• North: ________________
• South: ________________
• East: ________________
• West: ________________

IN WITNESS WHEREOF, the Vendor and Vendee have signed this Deed of Sale on the day, month, and year first above
written in the presence of the following witnesses:

WITNESSES:

1.
2.

EXECUTANT (VENDOR):
Name: ______________________________
Signature: ___________________________

EXECUTANT (VENDEE):
Name: ______________________________
Signature: ___________________________

Note: Attach any relevant plans, title deed copies, and necessary annexures as required by local regulations.

i. Lease-Deed

A Lease Deed is a formal, legally binding document that officially establishes the terms of a lease agreement between
the landlord (lessor) and the tenant (lessee). It outlines the rights and obligations of both parties regarding the leased
property. A lease deed is especially significant when a dispute arises, as it serves as concrete proof of the lease terms
that can be presented in court.

A lease deed must be registered if the lease period is more than one year, according to the Registration Act of 1908.

Key Elements of a Lease Deed

 1. Property Details: Description of the type, size, and location of the property.
2. Lease Duration: The agreed length of time for which the lease will be valid.
3. Rent and Payment Terms: The rent amount and details regarding the frequency and mode of payment.
4. Termination Conditions: The conditions under which the lease can be terminated by either party.
5. Dispute Resolution: The process for resolving disputes, including jurisdiction and legal proceedings.

Legal Framework for Lease Deeds

• Transfer of Property Act, 1882 (TOPA): Section 107 specifies that leases of more than one year must be created
by a registered document.
• Registration Act, 1908: Under Section 17, leases lasting longer than a year must be registered. However, Section
18 provides an exception for leases shorter than one year, which do not require registration.

Importance of Registering Lease Deeds

Registering a lease deed, particularly for leases over a year, provides several advantages:

• Protects the Interests of Both Parties: Ensures the terms of the lease are legally enforceable.
• Legal Recognition: Registration gives the lease deed legal standing and credibility in court, making it an
admissible document for evidence.
• Collateral Transactions: A registered lease deed can be used as collateral for obtaining loans or other financial
benefits.

Consequences of Not Registering Lease Deeds

1. Fines: Failure to register a lease deed can lead to fines imposed by the district sub-registrar, potentially up to 10
times the original stamp duty value.
2. Inadmissibility in Court: According to Section 49 of the Registration Act, 1908, an unregistered lease deed that
should have been registered cannot be accepted as evidence in court.
3. Validity Issues: The Supreme Court, in cases like Anthony v. KC Ittoop & Sons & Ors., ruled that an unregistered
lease deed, where registration was mandatory, does not constitute a valid lease. However, based on conduct
and circumstances, an implied lease agreement may be presumed.
4. Month-to-Month Tenancy: If an unregistered lease deed is in effect, as seen in Park Street Properties Pvt Ltd v.
Dipak Kumar Singh & Anr. (2016), it may be treated as a month-to-month tenancy instead of a lease with a fixed
term.

Time Limit for Registering Lease Deeds

According to Section 23 of the Registration Act, 1908, any document, excluding wills, must be presented for registration
within 4 months from the date it is created. This time limit is essential for ensuring the legal enforceability of lease
agreements, particularly in commercial settings where significant financial transactions are involved.

If a lease deed is not registered within the stipulated period and is later challenged or deemed invalid, this can provide
grounds for the other party to terminate the lease, as per Section 106 of the Transfer of Property Act, which typically
requires a 15-day notice for termination.

Examples of Judicial Precedents

• Ram Singh Sant Ram v. Jasmer Singh Hardit Singh & Anr. (1959): The Punjab-Haryana High Court ruled that a
commercial lease deed was ineligible for registration when more than 8 months had passed since its creation.
• Aspire Investments Pvt Ltd v. Nexgen Edusolutions Pvt Ltd. (2015): The Delhi High Court highlighted that a
significant delay, like a 10-year period without registration, was invalid and inconsistent with standard lease
 practices, especially when the property was used for a school, which is typically subject to a monthly rental
agreement.

Stages of Executing a Lease Deed

1. Negotiation Stage

• Initial discussions between the lessor and lessee regarding terms such as the lease duration, rent, and payment
terms.
• Legal aspects are less prominent in this stage and are focused on reaching mutual agreement.

2. Preliminary Documentation Stage

• Parties may draft an Agreement to Lease or a Memorandum of Understanding (MOU), outlining the
commercial terms and intentions.
• These documents help formalize the understanding and set the stage for finalizing the lease deed.

3. Title Investigation or Due Diligence Stage

• Verifying the lessor's ownership and ability to lease the property.

• Conducting a title search through government records and potentially issuing public notices if needed.
• Ensuring any necessary permissions are obtained.

4. Drafting and Payment of Stamp Duty Stage

• Drafting the Lease Deed, incorporating all agreed terms, and having it approved by both parties.
• Payment of stamp duty, which varies by state (e.g., in Maharashtra, governed by Article 36 of Schedule I of the
Maharashtra Stamp Act, 1958).

5. Execution and Registration Stage

• Exchange of consideration, where the lessee pays any agreed premium.

• Both parties sign the Lease Deed, often with two witnesses.
• The Lease Deed is submitted for registration at the relevant Sub-Registrar of Assurances.

6. Post-Registration Stage

• Notifying relevant authorities to update records and facilitate the application for any required licenses or
permits.
• Ensures a smooth transition of property use to the lessee.

Mandatory Registration and Legal Implications

Under Section 107 of the Transfer of Property Act, 1882 and Section 19(1)(d) of the Indian Registration Act, 1908, any
lease agreement for an immovable property with a term longer than one year or a yearly payment system must be
registered. Failure to do so renders the lease void, as established in Usha Ranjan Ray Burman v. Sova Das (AIR 1990 Cal
I).

How to Register a Lease Deed

Registration Requirements:
 • Mandatory Registration: Leases with a duration over one year must be registered as per Section 17 of the
Registration Act, 1908.
• No Registration Required: Leases under one year are governed by Section 106 of the Transfer of Property Act
and do not require registration.

Registration Process:

1. Fees: Registration fees are generally 1% of the annual lease amount for a 5-year period. State-specific stamp
duty must also be paid.
2. Presence Required: Both parties must appear before the sub-registrar with necessary documents, including
photo IDs and passport-sized photos.
3. Duration: The registration process may take from a few days to a month, depending on the complexity of the
lease.

Difference Between Lease and Rent Agreement

• Lease Agreement: Usually longer-term (more than a year) with conditions for renewal and comprehensive
clauses.
• Rent Agreement: Typically shorter (month-to-month or less than a year) and focuses on monthly payments
without renewal terms.

Force Majeure Clause in Lease Deeds

A force majeure clause addresses events beyond the parties’ control, such as natural disasters or pandemics, that may
impede the fulfillment of lease obligations. This clause protects both parties by:

• Excusing performance for the duration of the force majeure event.

• Preventing penalties or liability during the event.

The case Oberoi Realty Limited v. Godfrey Phillips India Ltd highlighted its importance, emphasizing that leases can be
suspended during force majeure events, freeing the tenant from rent payments during such periods.

Cancellation of Lease

Termination Methods:

• Mutual Agreement: Both parties agree to end the lease.

• Breach of Contract: The non-breaching party can terminate by issuing a notice per the lease terms or relevant
state laws.

Legal Precedent: In Pheroze Framroze Taraporewala v. Arvindbhai Kalyanji Gandhi, the Supreme Court ruled that
tenants must vacate the property at the end of the lease term, and failure to do so is considered trespassing, allowing
landlords to reclaim possession.

Conclusion

A lease deed is a pivotal document formalizing the relationship between a lessor and a lessee for property use over a
specified period. It provides clarity on rent, responsibilities, termination conditions, and more. Properly drafting and
registering a lease deed ensures its enforceability and protects the interests of both parties.
LEASE DEED

This Lease Deed is made and executed on this ______ day of ___________ (Month), ___________ (Year), between:

Sri./Smt. ______________ (hereinafter referred to as the "Lessor"), residing at _____________________________, of

the first part, and
Sri./Smt. ______________ (hereinafter referred to as the "Lessee"), residing at _____________________________, of
the second part.

WHEREAS, the Lessor agrees to lease out the property described below to the Lessee on the terms and conditions set
forth herein.

1. Description of the Property and Lease Period

The Lessor hereby leases to the Lessee the property described in the Schedule below, including any related out-houses,
well, motor garage, kitchen, pathways, passages, garden, and appurtenances, situated at
________________________________.

The lease term will commence on the __________ day of __________ (Month), __________ (Year) and continue for a
period of __________ years (or on a year-to-year basis), with a monthly rent of Rs. __________ (Rupees
___________________ only), payable on or before the first day of each month for the preceding month.

2. Lessee’s Obligations

The Lessee agrees to:

• Pay all applicable rates, taxes, and charges related to the property, excluding house tax, during the lease term.

3. Lessor’s Obligations

The Lessor agrees to:

• Keep the property in good and substantial repair throughout the lease term.
• Annually whitewash and perform any necessary repairs.
• Address any defects, damage, or maintenance issues within one calendar month of receiving written notice from
the Lessee.
• Maintain and clean the well, pathways, and access roads at least once per year.

4. Termination and Re-entry

(i) The Lessor may terminate the lease and re-enter the property if rent remains unpaid for _______ months or if the
Lessee breaches any terms of the agreement.
(ii) Either party may terminate the lease by giving the other party a written notice of __________ calendar months.

5. Rights and Liabilities

The parties agree that the rights and obligations under Section 108 of the Transfer of Property Act, 1882, shall apply,
except Clause (m), which is excluded.

6. Notices
(i) Any demand or notice to the Lessee will be valid if sent via registered post to the Lessee at the demised premises or
at ________. Any notice to the Lessor will be valid if sent to the Lessor’s usual or last known place of residence or
business by registered post.
(ii) The terms "Lessor" and "Lessee" include their respective heirs, executors, administrators, and permitted assigns.

SCHEDULE OF PROPERTY

All that piece and parcel of immovable property bearing No. ___________, measuring _______________, bounded as
follows:

• On the East: _______________

• On the West: _______________
• On the South: _______________
• On the North: _______________

The market value of the leased property is Rs. ____________ (Rupees _______________________ only).

Stamp Duty: Paid in accordance with Article 30 of the Karnataka Stamp Act, 1957.

IN WITNESS WHEREOF

The parties have executed this Lease Deed on the date and year first above written, in the presence of the following
witnesses:

WITNESSES:

1.

(Signature of Witness)

2.

(Signature of Witness)

LESSOR
(Signature of Lessor)

LESSEE
(Signature of Lessee)

Note: Ensure all placeholders are filled with accurate details before finalizing and signing the document.

Partnership Deed

A Partnership Deed is a formal, legally binding agreement between partners that outlines the terms and conditions
governing their partnership in a business. It provides a clear understanding of each partner's role and responsibilities,
ensuring that the partnership operates smoothly and avoids potential disputes. The deed generally includes key clauses
about profit and loss sharing, responsibilities, procedures for admitting new partners, salary structures, and conditions
for withdrawal or exit.

Is a Partnership Agreement Mandatory?

Under the Indian Partnership Act of 1932, having a partnership deed is not legally mandatory. However, it is highly
recommended to have a written partnership agreement to clarify the terms and help prevent conflicts. Here’s why
having a partnership deed is essential:

• Regulation of Rights and Responsibilities: Establishes clear regulations on the rights, duties, and liabilities of
each partner.
• Prevention of Misunderstandings: Specifies terms to prevent disputes and ensure all partners are aware of their
obligations.
• Dispute Resolution: Provides a legal reference to resolve conflicts, making the process smoother and legally
enforceable.
• Profit and Loss Distribution: Clearly outlines how profits and losses are to be divided among partners.
• Role Specification: Defines each partner's specific role within the business.
• Remuneration Clauses: May include clauses on how partners are compensated for their services.
• Eligibility for Benefits: A registered partnership deed allows the firm to apply for a PAN, open bank accounts in
the firm’s name, secure bank loans, and register for licenses such as GST or FSSAI.

Types of Partnership Deeds

1. General Partnership Deed:

• The most common type, detailing roles, responsibilities, and capital contributions.
• Partners share liability equally and manage the business operations.

2. Limited Partnership Deed:

• Involves general partners (with unlimited liability and management responsibility) and limited partners (passive
investors with liability limited to their investment).
• The structure is used to protect limited partners from business debts beyond their capital contribution.

3. Limited Liability Partnership (LLP) Deed:

• Partners enjoy limited liability and the LLP is considered a separate legal entity.
• The deed outlines partner roles, capital contributions, profit-sharing, and management structure.

Rules in the Absence of a Partnership Deed

If a partnership deed is not in place, the following statutory rules under the Indian Partnership Act will apply:

• Profit and Loss Sharing: Profits and losses are shared equally among partners.
• No Salary: Partners cannot draw a salary.
• Interest on Capital: No interest is paid on capital contributions.
• Interest on Loans: Partners receive a 6% annual interest rate on any loans provided to the firm.
• Drawings: No interest is charged on drawings made by partners.

Registration of Partnership Deed

A Partnership Deed is a critical document that outlines the rights, responsibilities, and obligations of each partner in a
business venture. It can be either oral or written; however, an oral agreement holds little value when it comes to official
purposes, such as dealing with tax matters. A written deed is essential for legal and operational clarity.

Essential Characteristics of a Partnership Deed

When creating a partnership deed, it should include the following key points:

• Firm Name: The registered name of the partnership.

• Partner Details: Names and addresses of all partners.
• Nature of Business: Description of the business activities.
• Term of Partnership: Duration of the partnership, whether fixed or indefinite.
• Capital Contributions: The amount of capital each partner is required to contribute.
• Drawings: The allowable drawings by each partner.
• Interest Provisions: Interest on capital contributions and interest on drawings.
• Partner Rights and Duties: Clearly defined rights and responsibilities of each partner.
• Remuneration: The salary or commission payable to partners, if applicable.
• Goodwill Calculation: The method of calculating goodwill for the partnership.
• Profit and Loss Sharing: The ratio in which profits and losses are distributed among the partners.

Partnership Deed Contents

A comprehensive partnership deed should address the following:

1. Firm Name: The official name decided by all partners.

2. Partner Information: Names, addresses, and other details of all partners.
3. Commencement Date: The date on which the business operations began.
4. Business Duration: The term of the partnership—whether limited or indefinite.
5. Capital Contributions: Specific contributions made by each partner.
6. Profit Sharing Ratio: How the profits and losses are shared among the partners.
7. Roles and Responsibilities: Detailed description of the duties, obligations, and powers of each partner.
8. Salaries and Commissions: Any applicable salaries or commissions payable to partners.
9. Admission and Retirement: Procedures for adding or removing partners.
10. Goodwill Calculation: The agreed method for calculating and managing goodwill.
11. Dispute Resolution: How conflicts between partners should be handled.
12. Insolvency: Procedures to follow if a partner becomes insolvent.
13. Dissolution Procedures: The process for settling accounts and closing the firm if needed.

Importance of a Partnership Deed

Having a well-drafted partnership deed is highly beneficial and offers the following advantages:

• Clarity of Roles and Rights: Establishes clear regulations on the rights, duties, and responsibilities of each
partner.
• Prevention of Disputes: Reduces the likelihood of disagreements among partners.
• Profit and Loss Transparency: Clearly specifies the distribution ratio for profits and losses, avoiding potential
confusion.
• Defined Responsibilities: Each partner's responsibilities are clearly outlined to prevent conflicts.
• Remuneration and Interest: Establishes the salary or remuneration for partners and interest on capital invested.
• Legal and Operational Guidance: The deed can serve as a legal reference in disputes or for future project
guidelines.
A partnership deed is essential for the proper functioning and management of a partnership firm. It formalizes the
agreement between partners, ensuring that each party is aware of their roles, rights, and obligations.

Modifying a Partnership Deed

A partnership deed can be modified whenever all partners agree to the changes. The modification process involves
drafting a new deed that reflects the updated terms and conditions. The modified deed must be signed by all partners
and comply with the relevant provisions of the Stamp Act. Following this, the modified deed should be registered with
the Registrar of Firms to ensure it is legally valid and enforceable.

Executing a Partnership Deed

To formalize a partnership, the agreement is generally printed on Non-Judicial Stamp Paper, valued at Rs. 100/- or
more, depending on the total value of the partnership assets. The key steps in executing a partnership deed are:

1. Printing on Stamp Paper: The partnership deed should be prepared and printed on non-judicial stamp paper as
per the required value.
2. Signing: All partners sign the agreement in the presence of each other.
3. Witnessing: The signing process should be witnessed by an individual or individuals, whose details are recorded
on the deed.
4. Retention of Copies: Each partner should retain a signed original copy for their records. Duplicates or triplicates
of the signed deed can be provided to ensure all partners have a copy.

Documents Required for Partnership Deed Registration

To register a partnership deed, the following documents are necessary:

1. PAN Card: A copy of the PAN card of each partner.

2. Address Proof: Proof of address for all partners, which can include documents such as:
o Voter ID card
o Aadhar card
o Driving license
3. Address Proof of the Firm: Documentation showing the registered address of the partnership firm. This could
be:
o Rental agreement or lease deed
o Utility bills (e.g., electricity, water, or gas bill)
o Property tax receipt or ownership documents for owned properties

These documents are crucial for the registration process, ensuring that all legal requirements are met and that the
partnership firm is officially recognized.

DEED OF PARTNERSHIP
(This Deed must be executed on Rs. 15/- Non-Judicial Stamp Paper)

THIS DEED OF PARTNERSHIP is made and entered into on this ______ day of _____________, 2007, by and between:

A.B., son of ________________, residing at _______________, aged ______ years (hereinafter referred to as the 'First
Party'), and
C.D., son of ________________, residing at _______________, aged ______ years (hereinafter referred to as the
'Second Party').
WHEREAS the parties wish to enter into a partnership to carry on the business as described below and agree to
document their arrangement.

NOW, THEREFORE, the parties agree as follows:

1. Name and Business of the Partnership

The partnership shall be conducted under the name M/s _____________________ and shall operate in the business of
___________________________ at _______________________ (principal place of business).

2. Duration of the Partnership

The partnership shall commence on the date hereof and shall continue for an initial term of __________ years, or for
such period as mutually agreed upon by the partners.

3. Capital Contributions

The total capital of the partnership is fixed at Rs. ____________ (Rupees _______________ only), contributed by the
partners as follows:

• First Party: Rs. ___________

• Second Party: Rs. ___________

Note: The capital contributions may be adjusted by mutual agreement. Additionally, capital may be raised through loans
if deemed necessary.

4. Profit and Loss Sharing

The net profits and losses of the business shall be shared in the following ratios:

• First Party: __________%

• Second Party: __________%

5. Profit Withdrawals

Each partner is entitled to withdraw up to Rs. ____________ per month from the profits, which will be adjusted against
their respective accounts during the annual accounting.

6. Use of Premises

The First Party shall provide the shop premises at ______________________ for the business operations. The premises
are currently leased to him at a monthly rent of Rs. ____________. This premises shall be held in trust for the
partnership, and the rent shall be paid from the partnership's funds from the effective date of this agreement.

7. Expenses of the Partnership

All related expenses, including rent, taxes, duties, repairs, and other outgoings associated with the shop premises or
other business locations, shall be paid from the partnership funds.

8. Employment of Staff

No apprentice, clerk, or servant shall be employed or dismissed without the mutual consent of both partners.
9. Record-Keeping and Accounts

The partnership shall maintain accurate and up-to-date financial records, including accounts of all transactions, assets,
and liabilities. The books of accounts shall be kept at the firm's principal place of business.

10. Annual Accounting

An account and valuation of the partnership's assets and liabilities shall be prepared on the ______ day of
_____________ each year, signed by both partners, and retained by each partner. The accounts shall be binding on the
partners. Profits or losses shall be divided accordingly after signing the accounts.

11. Individual Authority

The authority of individual partners shall be limited as follows:

• (a) No partner shall purchase goods exceeding Rs. ___________ without prior consent from the other partner.
• (b) No partner shall take a loan or raise funds exceeding Rs. ___________ without prior consent.
• (c) No partner shall undertake any financial commitment exceeding Rs. ___________ without written consent.
• (d) Lawsuits involving the partnership, where financial implications exceed Rs. ___________, shall be filed and
defended jointly by both partners.

13. Dissolution

A partner may dissolve the partnership in the event of a breach by the other party, by providing written notice via
registered post. On dissolution, the expelled partner shall not be liable for any losses incurred after the dissolution date.
Profits or losses shall be finalized during the annual accounting.

14. Termination Due to Death or Bankruptcy

The partnership shall terminate upon the death or bankruptcy of a partner, or if there is no major legal representative
willing to take the place of the deceased partner. The share of the deceased partner may be purchased by the surviving
partner(s) at a valuation determined by appointed arbitrators. The payment shall be made in three equal six-monthly
installments. The tenancy rights of the First Party shall be valued at the annual rental rate of the shop.

15. Final Settlement Upon Termination

Upon termination of the partnership, a full and comprehensive account shall be prepared, and assets and liabilities shall
be settled. Any net proceeds shall be divided among the partners or their legal representatives. If liabilities exceed the
proceeds, the loss shall be shared equally among the partners or their legal representatives.

16. Dispute Resolution

Any disputes arising between the partners regarding this Deed, its interpretation, accounts, or any matter related to the
partnership shall be referred to arbitrators chosen by the partners, with an umpire appointed as per the Arbitration and
Conciliation Act, 1996 or any statutory modifications.

IN WITNESS WHEREOF, the parties have executed this Deed at ___________________ on this ______ day of
_____________, 2007.

WITNESSES:

1.
(Signature)

2.

(Signature)

FIRST PARTY

(Signature of A.B.)

SECOND PARTY

(Signature of C.D.)

Note: Ensure all blanks are filled accurately and that the document is reviewed by a legal professional before signing.

K. Mortgage Deed

A Mortgage Deed is a legal document that formalizes an agreement between a borrower (mortgagor) and a lender
(mortgagee), where the borrower pledges their property as collateral for a loan. This deed serves as evidence of the
mortgage and outlines the terms and conditions under which the borrower transfers an interest in the property to the
lender. It also details the rights of the borrower to redeem the property once the loan is repaid.

Types of Mortgage Deeds

1. Registered Mortgage:
o Definition: This type of mortgage requires the Mortgage Deed to be registered with the Sub-Registrar of
the property.
o Key Elements: Registration ensures that the lender's interest in the property is publicly recorded,
preventing the property from being transferred or encumbered without the lender’s knowledge. It
provides a strong legal standing and protection for the lender's rights.
2. Equitable Mortgage:
o Definition: In an equitable mortgage, the borrower deposits the title deeds of the property with the
lender as security for the loan, without formally registering the mortgage.
o Key Elements: The borrower retains possession and usage rights of the property but pledges its value as
collateral. This type of mortgage is beneficial for quick access to funds as it avoids the more complex
registration process.
3. Simple Mortgage Deed:
o Definition: A simple mortgage deed involves the borrower pledging the property to the lender without
transferring physical possession.
o Key Elements: The borrower remains in possession and can continue to use the property, but the lender
has the right to sell it in case of default. This provides the lender with a legal recourse to recover the
debt without needing to physically take control of the property.
 4. Mortgage by Conditional Sale:
o Definition: This mortgage type involves the borrower transferring the property to the lender under the
condition that the property will revert to the borrower once the loan is repaid in full.
o Key Elements: It offers the lender a secure means of recovering the loan, as the lender can sell the
property quickly if the borrower defaults. The deed sets out clear conditions for the return of the
property to the borrower after full repayment, ensuring transparency.
5. English Mortgage:
o Definition: Also known as a Mortgage by Legal Charge, an English Mortgage involves transferring the
legal title of the property to the lender, who holds it until the debt is repaid.
o Key Elements: The borrower retains the equitable right to reclaim possession once the loan is fully paid.
The lender’s legal ownership enables them to take necessary legal action in case of default. This type of
mortgage provides a solid legal framework that protects both parties’ interests—allowing the lender to
secure their investment and the borrower to reclaim ownership upon loan repayment.

These types of mortgage deeds provide various levels of security, flexibility, and legal frameworks to suit the needs of
the borrower and the lender.

Key Elements of Mortgage Deeds

A mortgage deed is a critical document in property financing, capturing essential details and responsibilities associated
with a property-backed loan. The following key elements form the backbone of a comprehensive mortgage deed:

1. Parties Involved: The deed identifies the mortgagor (borrower) and mortgagee (lender), defining their roles
and responsibilities within the agreement. This ensures that each party understands their obligations and rights.
2. Property Description: A thorough description of the property is included, detailing its boundaries, dimensions,
address, and any existing encumbrances or liens. This is crucial for legal clarity and to prevent any disputes over
property ownership or rights.
3. Loan Amount and Terms: The mortgage deed outlines the principal loan amount, interest rate, repayment
schedule (whether in instalments or as a lump sum), and prepayment conditions (any penalties or benefits for
early repayment).
4. Covenants and Conditions: The document specifies the obligations of both the borrower and the lender, such as
maintaining property insurance, paying property taxes, and other conditions that must be met to maintain the
terms of the mortgage. It may also outline penalties for failing to meet these requirements.
5. Default and Remedies: This section explains the consequences of default, including the lender’s right to initiate
foreclosure or sell the property to recover the debt. The deed may also describe any notice periods or cure
periods allowed to the borrower before the lender can take legal action.
6. Execution and Registration: The mortgage deed must be executed on stamp paper of an appropriate value as
mandated by local laws and must be registered with the relevant authority (such as the Sub-Registrar) to make
it legally enforceable. Registration provides public notice of the lender’s interest in the property.

Importance of a Mortgage Deed

• Legal Security: A mortgage deed serves as a binding legal document that protects both the borrower and the
lender, ensuring that their rights and obligations are clearly defined.
• Clear Terms: It sets out precise terms and conditions for the loan, which helps in understanding the repayment
obligations, interest rates, and potential penalties for default.
• Ownership Proof: The deed formalizes the lender’s right to the property should the borrower default on the
loan, offering legal protection for the lender’s investment.
• Financial Planning: By clearly outlining the terms, the deed aids borrowers in planning their finances effectively,
understanding payment schedules, and managing their obligations.
• Dispute Resolution: In case of disputes, the deed serves as a reference point to resolve conflicts fairly, based on
the agreed-upon terms.
Conclusion

Mortgage deeds play a vital role in property financing, providing both security and a legal framework for the borrower
and the lender. They ensure transparency and reduce the risk of disputes, offering clear documentation of the loan
terms and conditions. Whether you're a borrower looking to secure a loan or a lender seeking assurance for the financial
transaction, understanding the intricacies of a mortgage deed is essential.

DEED OF SIMPLE MORTGAGE

THIS DEED OF SIMPLE MORTGAGE is made at ___________________ on this ______ day of __________, 200, between:

(1) Mortgagor(s):
___________________, son/daughter of _________________, aged about ______ years, residing at
______________________________________ (hereinafter referred to as the ‘Mortgagor’), which expression shall
unless repugnant to the context or meaning thereof, be deemed to mean and include his/her legal heirs, executors, and
administrators.

OR
___________________, son/daughter of _________________, aged about ______ years, and his/her spouse,
____________________, son/daughter of _________________, aged about ______ years, both residing at
______________________________________ (hereinafter collectively referred to as the ‘Mortgagors’), which
expression shall unless repugnant to the context or meaning thereof, be deemed to mean and include their legal heirs,
executors, and administrators.

AND

(2) Mortgagee:
____________________ [Housing Finance Company (HFC)], a company incorporated under the Companies Act, 1956 (1
of 1956), having its registered office at _____________________________ (hereinafter referred to as the ‘Mortgagee’),
which expression shall, unless repugnant to the context or meaning thereof, be deemed to include its successors in
interest and assigns.

OR
____________________, a banking company within the meaning of the Banking Regulation Act, 1949, having its
registered/head office at _______________________ and a branch office at ___________________ (hereinafter
referred to as the ‘Mortgagee’), which expression shall, unless repugnant to the context or meaning thereof, be deemed
to include its successors in interest and assigns.

WHEREAS:

(A) The Mortgagor is the absolute owner of the land and premises bearing municipal survey no. ___________ located at
________, within the city/village limits of [], registration sub-district [] and district [__________] (hereinafter referred
to as the “Residential Property”), more particularly described in the Schedule hereunder written.

(B) By a loan agreement dated ______________ (the “Loan Agreement”), made between the Mortgagor as the borrower
of one part and the Mortgagee as the lender of the other part, the Mortgagee has agreed to lend to the Mortgagor the
sum of Rs. ____________ (Rupees ________________ only) (the “Loan”) against the security of the Residential
Property.

(C) The Mortgagee has requested the Mortgagor to create a mortgage on the Residential Property as security for the
repayment of the Loan and payment of interest as specified in the Loan Agreement.
NOW THIS DEED WITNESSETH that in pursuance of the Loan Agreement and in consideration of the sum of Rs.
____________ lent and advanced/to be lent and advanced by the Mortgagee to the Mortgagor (receipt whereof the
Mortgagor hereby acknowledges), the Mortgagor covenants with the Mortgagee that the amount of the Loan, together
with interest, costs, charges, expenses, and all other amounts payable under the Loan Agreement (the “Mortgage
Debt”), shall become due and payable upon the occurrence of any of the following events (hereinafter referred to as the
“Specified Event”):

• (a) Upon the Mortgagor’s death (or, in the case of a married couple, the death of the surviving spouse);
• (b) Upon the sale of the Residential Property by the Mortgagor;
• (c) If the Mortgagor permanently vacates the Residential Property.

Provided that:

• (i) The Mortgage Debt shall not exceed the sale proceeds of the Residential Property, and any claim shall be
limited to such proceeds.
• (ii) If any heir, legal representative, executor, or administrator of the Mortgagor is willing to repay and discharge
the Mortgage Debt within sixty days after the Mortgagor's death (or the death of the surviving spouse), the
Mortgagee shall not enforce the security.
• (iii) If the sale proceeds of the Residential Property exceed the Mortgage Debt, the surplus shall be retained by
the Mortgagee, who may distribute the amount to the Mortgagor’s legal heirs, subject to satisfactory evidence
of entitlement.

AND IT IS AGREED that, in consideration of the above, the Mortgagor hereby transfers by way of mortgage the
Residential Property, including all rights, title, and interest therein, as security for repayment of the Mortgage Debt.
Upon repayment by the Mortgagor or their heirs, executors, administrators, or assigns, the Mortgagee shall release the
Mortgaged Premises and, if requested, execute a Deed of Release at the Mortgagor’s cost.

AND IT IS FURTHER AGREED that if the Mortgage Debt is not paid upon the occurrence of any of the Specified Events,
the Mortgagee may sell the Mortgaged Premises through a competent court and recover the Mortgage Debt from the
net sale proceeds. The Mortgagee retains the right to enforce the mortgage security through applicable remedies under
the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and the Securitisation and Reconstruction of
Financial Assets and Enforcement of Security Interest Act, 2002.

AND IT IS FURTHER AGREED that the Mortgagor shall bear all costs, charges, and expenses incurred by the Mortgagee
for protecting the mortgage security or realizing the Mortgage Debt. These shall be added to the Mortgage Debt.

AND IT IS FURTHER AGREED that during the term of the mortgage, the Mortgagor shall insure the Mortgaged Premises
against fire or other risks for at least Rs. ____________ with an insurance company approved by the Mortgagee and
shall provide the Mortgagee with the policy, endorsed in the Mortgagee’s name as assignee. If the Mortgagor fails to do
so or fails to pay the premium, the Mortgagee may procure insurance at the Mortgagor’s expense, which amount shall
be included in the Mortgage Debt.

AND IT IS FURTHER AGREED that in the event of damage or destruction of the Mortgaged Premises by fire or accident,
the Mortgagee shall be entitled to receive the insurance claim and apply it to arrears of interest and principal due. Any
surplus shall be paid to the Mortgagor.

IN WITNESS WHEREOF, the parties have signed this Deed on the day and year first above written.

THE SCHEDULE – I REFERRED TO ABOVE

(Description of the Residential Property)

Signed and Delivered by:

(Mortgagor)

Signed and Delivered by:

(Mortgagee)

In the presence of WITNESSES:

1.

(Signature)

2.

(Signature)

Note: Please ensure this deed is executed with the correct stamp duty and in accordance with applicable laws.

l. Relinquishment Deed

A relinquishment deed is a legal document used primarily for transferring ownership rights over a property from one
individual to another, particularly in the context of joint ownership or inheritance. It is a common instrument in India
when co-owners or legal heirs wish to release their share of an inherited property, making it an essential tool for
property succession among family members or co-owners. The process is voluntary and involves mutual consent
between the parties.

Documents Required for a Relinquishment Deed

Creating and registering a relinquishment deed involves gathering the following documents:

1. Registered Property Documents: Original documents that establish the legal status of the property.
2. Details of Property Co-owners: Information that identifies all the individuals involved in the property
ownership.
3. Written Intention: A document expressing the intention of the releasor (person relinquishing the share) to give
up their ownership rights.
4. Deed Particulars: Detailed information about the deed, including its terms and conditions.
5. Personal Details: Information about both the releasor and the releasee, such as name, age, and address.
6. Property Description: Full details of the property being transferred.
7. Consideration Details: If applicable, the amount or terms of consideration for the transfer.
8. Identity Proofs: PAN card, Aadhaar card, or other forms of ID for all parties involved.
9. Supporting Agreements: Any prior agreements related to the property that may impact the relinquishment.
10. Other Documentation: Additional documents as required by local registration authorities.

Objectives of a Relinquishment Deed

The primary goal of a relinquishment deed is to formalize the transfer of property ownership from one party to another.
This is especially significant in cases involving joint ownership or inheritance among legal heirs. By documenting the
relinquishment:

• Ownership Transfer: The deed facilitates a clear, transparent, and legal transfer of ownership.
• Registered Evidence: A registered relinquishment deed provides proof of the change in ownership, which is
essential in legal proceedings or property disputes.
• Avoids Disputes: Registration helps prevent future conflicts or legal challenges related to the property's title.
• Title Clarity: It ensures that the property has a clear and updated title, protecting the rights of the new owner.
• Succession Management: The deed streamlines property succession, making it easier for property to be
transferred to the rightful heir or co-owner.

Benefits of a Relinquishment Deed

The relinquishment deed provides several benefits, making it a preferred method for property transfers among co-
owners or legal heirs:

1. Simplified Transfer Process: It eliminates the need for complex and time-consuming sale deeds, simplifying the
transfer.
2. Smooth Succession: The deed ensures a hassle-free transition of property ownership from one generation to
the next.
3. Legal Protection: By registering the deed, all parties receive legal protection and assurance that the transfer is
valid and recognized.
4. Dispute Prevention: It helps prevent any disputes related to property inheritance, as it formally records the
relinquishment of ownership rights.
5. Cost-Effective: The process of executing a relinquishment deed is often more economical than alternative
methods of transferring property.
6. Quick Processing: The procedure is relatively quick, making it a convenient option when property transfer needs
to be completed promptly.

Relinquishment Deed Format

A relinquishment deed format typically follows a standardized structure to ensure all essential details are included.
Below is an outline of a common format:

How to Register a Relinquishment Deed

Step-by-step Process:

1. Draft the Deed:

o Create the relinquishment deed on stamp paper of Rs. 100 or as per local stamp duty regulations.
o Include all required details (property specifics, parties’ details, etc.).
o Review the deed for any errors or discrepancies.
2. Visit the Sub-Registrar's Office:
o All parties involved must visit the local sub-registrar’s office for registration.
o Carry original and photocopies of identity proof, address proof, and passport-sized photographs for
verification.
o Bring the deed along with two witnesses who must also have their identity proofs.
3. Payment of Registration Fee:
o Pay the nominal fee (usually between Rs. 100 to 250) for the registration.
4. Verification and Registration:
o The sub-registrar will verify the documents and proofs and create a registered deed.
o The registered deed can be collected after the process is complete, usually within a few days.
Who Can Create a Relinquishment Deed?

Only legal heirs or co-owners of a property can create a relinquishment deed to formally give up their share of the
property. This ensures that the transfer of property rights is legally binding and transparent, particularly among family
members or joint owners.

Difference Between a Relinquishment Deed and a Gift Deed

Relinquishment Deed Gift Deed

Involves voluntary transfer of property ownership as a
Used to relinquish an individual’s rights over a property.
gift.
Typically used when a legal heir or co-owner wants to give up Used when someone wishes to gift a property to
their share. another person.
No consideration is involved. May involve payment consideration.
Releasor gives up their claims and interests in the property. The recipient receives complete rights and ownership.
Can be revoked under certain conditions as per legal Usually irrevocable unless specific agreements state
provisions. otherwise.
Used to clarify and transfer property rights among heirs or co-
Lawfully transfers property ownership as a gift.
owners.

Conclusion

A relinquishment deed is an essential legal document that facilitates the transfer of property ownership from one
person to another, especially in cases involving co-ownership or inheritance. By establishing clear, legally binding terms,
it protects the interests of all parties involved and ensures a smooth transition of property rights. Registering this deed
provides further protection and helps in maintaining a clear property title, reducing the risk of future disputes.

DEED OF RELINQUISHMENT

This Deed of Relinquishment is made on this _____ day of _________, 19.

BETWEEN:

1st Party (Executants):

1. Sri/Smt. _____________________________, aged ___ years.

2. Sri/Smt. _____________________________, aged ___ years.
3. Sri/Smt. _____________________________, aged ___ years.

(These individuals are sons and daughter of Late ____________________________, of village

____________________________, P.O. __________________________, P.S. __________________________, Dist.
__________________________).

AND

2nd Party (Assignee):

Sri/Smt. _____________________________, aged ___ years, W/o/S/o/D/o Late ____________________________, of
village ____________________________, P.O. __________________________, P.S. __________________________,
Dist. __________________________.
(Hereinafter referred to as the 'Assignee')

VALUATION OF THE PROPERTY: Rs. ____________ (Rupees _______________ only) approximately.

WHEREAS:

1. The husband/father of the 2nd Party and father/mother of the 1st Party, Late __________________________,
had acquired the land described in the Schedule below by way of lease deed No. ___________, dated
__________, valued at approximately Rs. ____________ (in words) _______________________________ only.
2. Following the death of Late __________________________, the 1st Party and the 2nd Party have been in joint
possession and co-sharers of the property mentioned herein.

NOW, THEREFORE, we, the executants of the 1st Party, do hereby declare and agree as follows:

1. We, the members of the 1st Party, do hereby renounce and relinquish all our coparcenary rights, titles, and
interests in the said property.
2. We declare that we have no further claim, right, title, or interest in the said property and that the Assignee shall
become the absolute owner of the property hereinafter.
3. If, in the future, we or our legal heirs, representatives, or assigns attempt to make any claim on the said
property, the 2nd Party shall be free to dispose of the property according to their discretion, without any
opposition or objection from us or our legal heirs.

IN WITNESS WHEREOF, we, the members of the 1st Party, have signed this Deed of Relinquishment at
__________________________ (Sub-Registrar's Office) on the day and year first above written.

SCHEDULE OF PROPERTY:
Mouza: __________________________
Plot No.: __________________________
Measuring: __________________________

Boundaries:

• North: __________________________
• South: __________________________
• East: __________________________
• West: __________________________

WITNESSES:

1.

(Name and Address)

2.

(Name and Address)

This version organizes the details in a more structured manner, ensuring clear identification of parties, property details,
and declarations.
 m. Deed of Gift

A Gift Deed is a legal document used for the transfer of ownership of assets or property from one person (the "donor")
to another (the "donee") without any exchange of money. This type of deed is typically used for gifting real estate, cash,
or other valuable assets, and it formalizes the transfer of property rights while protecting the interests of both parties
involved. It ensures that the transaction is legally recognized and helps avoid future disputes over ownership.

Benefits of a Gift Deed

1. Transfer of Ownership: Simplifies the process of transferring property or assets to loved ones without monetary
exchange, making it a convenient way to distribute wealth.
2. Tax Benefits: In some cases, Gift Deeds may be eligible for tax exemptions or reduced tax rates, making them a
tax-efficient method for passing on assets.
3. Avoiding Legal Disputes: Helps prevent future disputes or claims over ownership by providing a clear,
documented transfer of property.
4. Estate Planning: Acts as an important tool in estate planning, enabling individuals to distribute assets to heirs or
beneficiaries according to their wishes.
5. Emotional Significance: Holds personal and emotional value, signifying the donor's love, affection, and intent
toward the recipient.

Gift Deed Meaning

A Gift Deed is essentially a written, legal agreement that formalizes the transfer of ownership from the donor to the
donee. It typically includes information such as:

• Date and Location: The specific date and place where the deed is executed.
• Donor's Information: Full name, date of birth, father's name, and residential address.
• Donee's Information: Full name, date of birth, father's name, and relationship with the donor.
• Relationship Clarification: Describes the relationship between the donor and the donee.
• Property Description: Details about the property or assets being gifted.
• Signatures: The donor's and donee's signatures to show consent and acceptance.
• Witness Details: Information about the two witnesses who must be present during the deed's execution.
• Witness Signatures: Signatures of the witnesses, validating the deed's authenticity.

Gift Deed Rules

To ensure that a Gift Deed is valid and legally binding, certain rules and requirements must be met:

1. Voluntary Transfer: The transfer of assets must be done voluntarily, without any coercion or pressure on the
donor.
2. Acceptance: The donee must willingly accept the gift. If the donee does not accept the gift, the transfer is not
considered complete.
3. No Exchange of Money: A Gift Deed must involve the transfer of property without any monetary compensation.
If money is exchanged, the deed may be considered a sale or purchase agreement, not a gift.
4. Stamp Duty and Registration: In many jurisdictions, a Gift Deed must be executed on stamp paper with the
appropriate stamp duty paid and must be registered with the relevant authority. Failure to comply with these
requirements can make the deed legally invalid.

How to Create and Register a Gift Deed

Steps to Create a Gift Deed:

 1. Draft the Deed: Prepare a written deed that includes all required details about the donor, donee, and the
property being gifted.
2. Execute on Stamp Paper: The deed should be drafted on stamp paper of the appropriate value as per local
stamp duty regulations.
3. Signatures: Both the donor and the donee must sign the deed in the presence of witnesses.
4. Witnesses: Two witnesses must sign the deed to confirm the authenticity of the transfer.

Registration:

1. Visit the Sub-Registrar's Office: Both parties and the witnesses should visit the local sub-registrar’s office for
registration.
2. Provide Necessary Documents: Bring original identity proofs, address proofs, and the executed deed.
3. Pay Stamp Duty: Ensure the payment of the stamp duty, which varies based on the property value and local
laws.
4. Registration Fee: Pay the registration fee as required.
5. Collect the Registered Deed: The registered deed will be available for collection after the registration process is
completed.

A Gift Deed not only formalizes the transfer of assets but also provides clarity, transparency, and legal backing to the
transaction, ensuring the donor's and donee's rights and responsibilities are clearly defined.

Gift Deed Registration Process

Registering a Gift Deed is an essential step to make it legally valid and enforceable. The process generally involves the
following:

1. Prepare the Deed: Draft the Gift Deed with all necessary details, including the donor’s and donee’s information,
a description of the gifted property, and any terms or conditions that apply.
2. Visit the Sub-Registrar Office: Visit the local Sub-Registrar's office where the property is located.
3. Payment of Stamp Duty: Pay the required stamp duty as per the market value of the property or the prescribed
rates in the respective state.
4. Execution and Attestation: Both the donor and the donee must be present to sign the Gift Deed at the Sub-
Registrar’s office. Two witnesses must also be present to attest to the document.
5. Registration: Submit the Gift Deed for registration. The registration process involves verifying the identities of all
parties and ensuring the deed meets legal requirements.
6. Receipt of Registered Deed: Once registered, the Sub-Registrar will provide a copy of the registered deed, which
serves as legally recognized proof of the transfer.

Understanding Gift Deed Charges

1. Stamp Duty Charges: The amount of stamp duty depends on the market or government guideline value of the
property. Rates vary by state, so it’s essential to check the applicable rates for your specific location.
2. Registration Charges: Registration fees are typically a percentage of the property’s value and differ from state to
state.

Required Documents for Gift Deed

The documents needed to create and register a Gift Deed usually include:

• Proof of Ownership: Documents proving the donor's ownership of the gifted property, such as title deeds or
property documents.
• Identity and Address Proof: Aadhar card, passport, voter ID, or similar identification for both the donor and
donee.
 • Sale Deed: If applicable, a copy of the Sale Deed for the property showing the donor’s acquisition.
• Encumbrance Certificate: Confirms that the property is free from any legal dues or pending liabilities.
• Witness Proof: Identity and address proof of the two witnesses who will be present for the execution and
registration of the deed.

How to Cancel the Gift Deed?

According to Section 126 of the Transfer of Property Act, a Gift Deed can be revoked under the following conditions:

• Mutual Agreement: Both the donor and donee agree to cancel the deed.
• Unwilling Recipient: If the recipient was reluctant to accept the gift, the deed can be revoked.
• Illicit or Immoral Conditions: If the deed includes conditions that are illicit or morally objectionable, it can be
canceled.

Important Note: A Gift Deed is generally irrevocable once executed unless a "revocation clause" is included in the deed
or it is revoked on grounds such as fraud or illegality. Consulting a legal expert is advised to ensure proper handling of
the revocation process.

Conclusion

A Gift Deed is a practical and legal way to transfer ownership of assets, ensuring clarity and protection for both the
donor and donee. By understanding the registration process, associated charges, and legal requirements, you can make
informed decisions regarding the transfer of property or assets. For those considering real estate investments or gifting
property, exploring trusted real estate developers like Adani Realty may offer options that align with your needs.

GIFT DEED

This Gift Deed is made and executed on this __________ day of ________, 20, at
____________________________________.

BETWEEN:

Donor:
(Name), son/daughter/wife of (Father’s/Husband’s name), aged ___ years, marital status ___,
(Profession),
(Nationality),
Resident of ____________________________________________,
Having Aadhar Card No. ________________________________.
(Hereinafter referred to as the "Donor").

AND

Donee:
(Name), son/daughter/wife of (Father’s/Husband’s name), aged ___ years, marital status ___,
(Professional Status),
(Nationality),
Resident of ____________________________________________,
Having Aadhar Card No. ________________________________.
(Hereinafter referred to as the "Donee").
The expressions Donor and Donee shall mean and include their respective heirs, successors, executors, nominees,
assignees, administrators, and legal representatives.

WHEREAS:

1. The Donor is the owner and in possession of the property purchased/acquired through registered sale
deed/document No. _______________, Addl. Book-I, Vol. No. ____, pages __ to __, dated ______________,
duly registered at the office of SR __________.
(This section should include how the Donor acquired the property title.)
2. The property described in the Schedule below is free from all encumbrances such as liens, charges, claims,
liabilities, legal disputes, attachments, prior sales, mortgages, or any other impediments, and the Donor is fully
entitled to dispose of it.
3. The Donor has great love and affection for the Donee, who is the __________ (relation, e.g., son, daughter,
etc.).
4. The Donor has agreed to gift the property described in the Schedule below to the Donee, who has accepted the
same.

NOW THIS DEED WITNESSETH AS UNDER:

1. The Donor hereby gifts the property ______________________________________________________ to the

Donee, who is the ______________ (relation).
2. The possession of the property has been handed over/delivered to the Donee by the Donor.
3. The Donee is now the absolute and exclusive owner of the property and shall have full rights of ownership and
enjoyment.
4. The Donor has relinquished all rights, titles, and interests in the property, which is now free from any future
claims.
5. The Donee shall get the property transferred/mutated in their name in the Revenue Department records at their
own expense, and the Donor grants their No Objection for such mutation.
6. The Donee has accepted the gift and taken possession of the property from the Donor.
7. The market value of the property has been assessed at Rs. ___________ (Rupees ___________ only) as per the
Notification published in the Official Gazette, Series; _____ No. ___________, dated ___________.
8. All expenses related to this Gift Deed, such as Stamp Duty and fees, shall be borne by the Donor/Donee.
9. Future taxes, cesses, rates, or any other governmental dues in respect of the property shall be paid by the
Donee.
10. The original title deeds/papers related to the property have been handed over/delivered to the Donee by the
Donor.

SCHEDULE:
(A complete description of the property, including Survey Nos, P.T. Sheet Nos, boundaries, area, and any other relevant
information.)

Boundaries:

• East: _______________
• West: _______________
• North: _______________
• South: _______________

IN WITNESS WHEREOF, the parties have signed this Gift Deed after understanding its contents on the date and year first
above written, in the presence of the following witnesses.

Signatures:
Donor:

(With photograph, thumb impressions, and signature)

Donee:

(With photograph, thumb impressions, and signature)

WITNESSES:

1. Name: ______________________
Address: ______________________
Signature: ______________________
2. Name: ______________________
Address: ______________________
Signature: ______________________

This version maintains a clear and structured format suitable for use in legal documents.

Forms

i. Petition for Grant of Probate / Letters of Administration

Probate and Letter of Administration (LoA) are two important legal processes in estate management, each serving
distinct purposes when someone passes away.

Probate is the legal procedure to establish the validity of a deceased person's Will. This process is necessary to confirm
that the document is the true and legally valid last Will of the deceased. The executor, who is named in the Will, files for
probate in the relevant court, submitting the original Will for verification.

Steps involved in probate:

1. Application: The executor submits an application to the court along with the original Will.
2. Verification: The court assesses the Will’s authenticity, considering the deceased’s mental capacity and legal
competence at the time of creating the Will and ensuring it meets the criteria for valid succession.
3. Objections: If there are no objections from interested parties, the court grants the probate.
4. Effect: The probate certificate is issued, authorizing the executor to distribute and manage the deceased’s assets
according to the Will’s terms.

Key Points:

• In India, obtaining probate is not mandatory except in certain places such as West Bengal, Chennai (municipal
limits), and Mumbai.
 • Probate helps preserve the Will’s integrity and ensures smooth handling of estate matters, especially if there are
significant assets or potential for disputes.
• If no executor is appointed in the Will, the legal heirs can request the court to appoint an administrator,
effectively taking on the executor’s role.

Letter of Administration (LoA)

An LoA is issued by the court when a person dies without leaving a valid Will or if the named executor cannot or will not
act. It appoints an administrator to manage and distribute the deceased’s assets according to the rules of intestate
succession or other applicable laws.

Steps involved in obtaining an LoA:

1. Application: A legal heir or interested party submits a petition to the court, providing personal and asset details
and explaining why an administrator is needed.
2. Notice and Contest: The court issues notices to all legal heirs and potential claimants, allowing them to raise
objections.
3. Granting the LoA: If there are no objections, the court issues the LoA, giving the appointed administrator the
legal power to manage and distribute the deceased’s estate.

To Whom Letters of Administration Cannot Be Granted

Under the Indian Succession Act, LoA cannot be granted to:

1. Minors: Individuals below the age of 18 are considered legally incapable of managing property or representing
themselves in legal matters.
2. Persons of Unsound Mind: Those who are legally recognized as mentally incompetent cannot be appointed as
administrators.
3. Associations of Individuals: Groups or associations (unless they qualify as a company meeting specific
conditions as prescribed by state rules in the Official Gazette) are ineligible for LoA.

Mandatory Nature of Probate or Letter of Administration

Section 213(1) of the Indian Succession Act, 1925 states that:

• Executors or legatees must obtain a Probate of the Will or Letters of Administration with the Will before
executing it in court. This is necessary to establish any rights or claim concerning the deceased’s estate.
• This requirement ensures that only a validly appointed executor or administrator can manage or distribute the
assets according to the Will.

Exceptions to the Mandate under Section 213(1)

Section 213(2) clarifies the exceptions to the rule in the following scenarios:

• Wills made by Muslims: These are exempt from the requirement of obtaining probate or LoA.
• Wills made by Indian Christians: Similar to Muslim wills, they are not subject to Section 213(1).
• Wills made by Hindus, Buddhists, Sikhs, or Jains: The probate requirement applies only if the Will is:
o Made on or after September 1, 1870, within specific jurisdictions (territories under the Lieutenant-
Governor of Bengal, or in the civil jurisdiction of High Courts of Madras and Bombay).
o Made outside these areas but involving immovable property within them.
• Parsis: Wills made by Parsis after the commencement of the Indian Succession (Amendment) Act, 1962, are
subject to similar conditions, particularly if they pertain to properties within the jurisdictions of the High Courts
at Calcutta, Madras, or Bombay.
Important Cases

The judicial decisions you cited highlight how these provisions are interpreted in practice:

• Clarence Pais & Ors vs Union of India: Supreme Court of India case which might delve into the procedural and
substantive aspects of Section 213 and related provisions.
• Kanta Yadav vs Om Prakash Yadav and Others and Joginder Pal vs Indian Red Cross Society: Cases that provide
insight into the application of exceptions and the issues surrounding probate and LoA.
• Gangavath Lalu vs Gangavathi Tulsi and Bhagwanji Karsanbhai Rathod vs Surajmal Anandraj Mehta: High
Court cases that likely focus on the procedural interpretations specific to the jurisdiction.
• Hans Raj and Anr vs Jeet Kaur (Deceased): Delves into the courts' application of probate/LoA requirements in
certain scenarios.

A Succession Certificate is a legal document issued by a competent civil court that provides legal recognition to the
rights of the legal heirs of a deceased person who died intestate (without a Will). It specifically authorizes the heirs to
inherit and collect debts and securities of the deceased. The process of obtaining a Succession Certificate is essential for
the legal heirs to claim assets like bank deposits, provident funds, shares, and loans, ensuring that creditors can safely
discharge debts to the rightful heirs.

Comparison with Probate and Letter of Administration

• Probate and Letter of Administration are essential for validating administrative rights over an estate, especially
concerning immovable property (e.g., real estate).
• Succession Certificate is more limited in its function. It is ideal for dealing with movable assets like bank
accounts, insurance claims, and shares. However, it is not a strong proof of administrative rights over immovable
property.

Insurance Policies and Succession Certificate

• Insurance amounts due to the policyholder are payable to the legal heirs or representatives. A Succession
Certificate is not always required if there is no dispute over who is entitled to the policy amount between the
legal heirs and representatives.

Petition for Probate or Letters of Administration with the Will Annexed

In the Court of the District Delegate (District Judge) of District...

Original Petition No... of... under the Indian Succession Act, 1925

In the Matter of the Will of AB (Deceased)

Petition of XY, son of EF, by caste...,

by occupation...,
resident of....

Most Respectfully Sheweth:

1. Introduction: The petitioner, XY, respectfully submits this petition regarding the estate of the deceased AB
(hereinafter referred to as "the deceased"), who was a Hindu subject to the Hindu Succession Act (Act XXX of
1956), and who died on [date] at [place], within the jurisdiction of this court. The deceased's fixed place of
 residence or temporary residence (or location of property) is within this court's jurisdiction, as confirmed by the
affidavit of assets submitted herewith.
2. Will and Executor: The deceased made and published his last will and testament on [date], wherein he
appointed the petitioner as the sole executor and specified the distribution of his estate and assets.
3. Execution of the Will: The will, marked as annexure, is accompanied by an affidavit from [name], an attesting
witness, confirming that the will was duly executed by the deceased in the presence of the witnesses who
signed it.
4. Entitlement of Petitioner: The petitioner, XY, is the named executor and, as such, seeks probate of the will.
Alternatively, if the application is for letters of administration with a copy of the will annexed, the petitioner,
being the eldest son and a legal heir under the Hindu Succession Act in the absence of an appointed executor,
claims administration of the deceased's estate.
5. Declaration of Assets: The petitioner has detailed all properties and credits the deceased possessed at the time
of death in Annexure A of the affidavit. This includes assets that the petitioner has received or expects to
receive. The petitioner undertakes to pay the necessary court fee if additional assets are discovered later.
6. Deductions: Annexure B lists all lawful deductions applicable to the estate.
7. Value of Assets: The total value of assets likely to come into the petitioner's hands does not exceed Rs...
(aggregate sum). The net value after deductions is under Rs...
8. Heirs: The deceased was a Hindu governed by the Hindu Succession Act, 1956. The following individuals are the
sole surviving heirs entitled to inherit the estate in the event of intestacy, with full details provided in the
petition.
9. Payment of Duty: The petitioner has paid the ad valorem duty as required for the estate of the deceased.
10. No Prior Applications: No application has been made in any other court for probate or letters of administration
with the will annexed. Additionally, there are no pending suits or proceedings for the administration of the
estate.
11. Undertaking: The petitioner undertakes to administer the deceased’s estate, submit a full and accurate
inventory of the property within six months from the grant of probate or letters of administration, and file a true
account of the estate within one year.
12. Bona Fide Submission: The petitioner affirms that this application is made in good faith.

Prayer for Relief: (a) The petitioner requests that probate of the will (or letters of administration with a copy of the will
annexed) be granted with effect throughout the state of [State].

(b) The petitioner seeks any other relief deemed appropriate by the court.

Prepared by:
[Name of Advocate]
Advocate for the Petitioner

Verification:

I, [Name of Petitioner], the petitioner, declare under oath that the statements in paragraphs 1 to 11 are true to my
knowledge, and paragraphs 12 and 13 reflect my submissions.

Signed at [Place] on [Date].

Declaration of Witness:

I, [Name of Witness], a witness to the will of the deceased, declare that on [date], at [place], I saw the deceased sign or
affix their mark to the will (annexed as A) in my presence (or that the deceased acknowledged the will as their last
testament in my presence).
Solemnly affirmed at Court House in Mumbai on [Date].

Signed Before me:

[Name]
Commissioner/Magistrate/Oath Officer

ii. Application for Appointment of Receiver/Local Commissioner

Issue of Commission by the Court refers to the Court's direction to an individual, known as a Court Commissioner, to
perform certain tasks on its behalf to aid in delivering complete and fair justice. This process allows the Court to
delegate specific functions that may require specialized knowledge or direct action outside the courtroom.

Purpose of Issuing a Commission

Courts issue commissions to gather information or take actions that are crucial for the case but cannot be effectively
handled within the court’s setting. Common instances include:

• Local Investigations: If the Court needs to inspect a property or site relevant to the case, a commissioner can be
appointed to conduct the inspection and report back.
• Recording Witness Testimonies: When a witness cannot physically appear in court due to distance, illness, or
other reasons, the Court can issue a commission to record the witness's testimony at an alternative location.

Who Can Appoint a Commissioner?

According to the Civil Procedure Code (CPC):

• Section 75 states that the Court that issues the commission can appoint a commissioner. This is the same Court
that is tasked with deciding the suit.
• The appointment can be made at the request of one of the parties or can be issued suo moto (on the Court’s
own initiative).
• The Court has discretion in appointing a commissioner and must consider limitations and conditions as set out in
the CPC.

Who Can Be Appointed as a Commissioner?

The Court Commissioner should meet certain criteria to effectively carry out the commission:

• Independence and Impartiality: The commissioner must be neutral, with no vested interest in the suit or the
parties involved.
• Competence: The commissioner should possess the necessary skills or expertise relevant to the task. For
instance:
o An accountant should be appointed for adjusting financial accounts.
o A person with scientific knowledge should be chosen for tasks involving scientific investigations.
• Qualifications and Skills: The commissioner must have qualifications suitable for the task to avoid inefficiencies
and inaccuracies.
• Avoiding Bias: The same individual should not be appointed repeatedly for all commissions, and individuals who
are frequently present in court without specific qualifications should generally be avoided.
Supervisory Role of the District Judge

The District Judge oversees the appointment of commissioners in subordinate courts to ensure that the process is fair
and in line with judicial standards. Special care must be taken to avoid appointing commissioners who are biased or lack
the qualifications necessary to perform their duties effectively.

The procedure for the appointment of a commissioner is regulated by the rules of the High Court in each state, with
guidelines for the appointment and functioning of commissioners provided under these rules. The basic procedure for
appointing a commissioner follows certain steps, as exemplified by the Delhi High Court Rules, 1967, and under the
provisions of the Civil Procedure Code (CPC).

Procedure for Appointment of Commissioner:

1. Panel Formation: A panel of commissioners is created by the Court. For example, under Delhi High Court Rules,
this panel consists of no more than four commissioners, which includes young individuals and, preferably, a lady
lawyer, specifically for recording evidence.
2. Notification and Selection:
o The District Court notifies the local bar about vacancies for commissioners.
o The bar then receives applications from interested persons and forwards them to the District Court,
which, in turn, sends its recommendations to the High Court for final approval.
3. Term of Appointment: The term of appointment is generally three years, which may be extended by the High
Court. However, no commissioner can serve beyond six years.
4. Role of the High Court: The High Court has the authority to make rules regarding the procedure for appointing
commissioners and overseeing the appointments. The High Court also has the discretion to extend the term of
the commission or approve additional commissioners.

When Can a Commissioner Be Appointed by the Court?

A commissioner can be appointed by the Court when a commission is issued for specific tasks. Under Section 75 of the
CPC, the Court can appoint a commissioner to perform various functions, particularly when a party is unable to attend
court or requires assistance in gathering evidence.

Functions for Which a Commissioner Can Be Appointed:

1. Examination of Witnesses:
o According to Order 26, Rules 1-8 of the CPC, the general rule is that evidence should be recorded in
open Court. However, in extraordinary circumstances, such as the inability of a witness to appear, the
Court may allow a commissioner to record evidence.
2. Conditions for Allowing a Commissioner to Record Evidence:
o Bedridden Witness: If a witness is unable to attend Court due to sickness or infirmity, a certificate from
a medical practitioner must be submitted. The Court may then issue a commission to record the
evidence.
o Danger to Life: If a witness fears for their life and notifies the Court, the Court may appoint a
commissioner to record their testimony.
o Pardanashin Lady: A woman who follows purdah (seclusion) may be allowed to give evidence via a
commissioner under Section 132 of the CPC.
o Government Officer: A Civil or Military Officer of the Government may be examined through a
commissioner if their attendance would detract from the public service.
3. Other Special Situations:
o If it serves the interest of justice or expedites the case, the Court can issue a commission despite rules
that might otherwise prevent the witness from attending in person (Order 26 Rule 4A).
 o A person detained in prison can also be examined by issuing a commission (Order 16A Rule 7).
4. Other Situations:
o If a person is under restrictions that prevent them from attending Court (e.g., under Order 16 Rule 19 of
the CPC), a commission can be issued for their examination.
o The Court may also issue a commission if personal appearance is impractical or if it benefits the
expeditious handling of the case.

Conclusion

The procedure for the appointment of a commissioner is aimed at facilitating the smooth collection of evidence and
ensuring justice is served, particularly when witnesses or parties are unable to attend court in person. The High Court
has the responsibility for regulating and overseeing this process, ensuring that commissioners are selected based on
competence, impartiality, and independence. Commissioners are appointed to fulfill specific tasks such as recording
evidence or examining witnesses in cases where their direct presence in court is not feasible.

IN THE COURT OF THE SMALL CAUSES JUDGE, MUMBAI

Civil Suit No. 500/2009

Shri P.S.D.
Plaintiff

Versus
Shri S.M.P.
Defendant

APPLICATION ON BEHALF OF THE DEFENDANT FOR APPOINTMENT OF A COURT COMMISSIONER

The defendant above-named submits this application, praying to state as follows:

1. That the plaintiff has filed the present suit against the defendant for fixation of standard rent and recovery of
possession.
2. That the defendant has filed a written statement and an application for the grant of stay in response to the
plaintiff’s suit.
3. That the plaintiff claims that the area occupied by the defendant is 280 sq. ft., while the actual area is
approximately 480 sq. ft.
4. That, in order to ascertain and confirm the actual area occupied by the defendant and to measure the suit
premises, it is essential for this Hon’ble Court to appoint a court commissioner.
5. That the plaintiff has misled this Hon’ble Court by deliberately stating an incorrect area of 280 sq. ft. instead of
the actual area of 480 sq. ft.
6. That, if this Hon’ble Court does not grant this application for the appointment of a court commissioner, the
defendant will suffer irreparable loss and damage.
7. That the defendant respectfully submits that unless the plaintiff amends the plaint to correctly reflect the area
of the suit premises as approximately 480 sq. ft., the factual details will not be brought before this Hon’ble
Court.
8. That, in the event the plaintiff does not voluntarily amend the plaint, the appointment of a court commissioner
becomes indispensable for the determination of the facts.
9. That the plaintiff, through his agents, attempted to demolish a portion of the suit premises at 9:00 a.m. on
[date] to reduce the area from 480 sq. ft. to 280 sq. ft.
 10. That the appointment of a court commissioner is necessary to record the actual area of the suit premises and to
assist this Hon’ble Court in arriving at a just and fair decision.
11. That, if no court commissioner is appointed, the defendant fears that accurate records of the suit premises will
not be available, causing the defendant to suffer irreparable loss and injustice.
12. That this application is accompanied by the requisite court fee.
13. That the defendant prays that this Hon’ble Court appoint a court commissioner in the matter.
14. That the defendant is willing to pay and deposit the necessary expenses for the appointment of a court
commissioner.
15. That an affidavit in support of this application is filed herewith.

Mumbai, [Date]
Sd/- S.M.P.
Defendant

Sd/- xXx
Advocate for the Defendant

AFFIDAVIT

IN THE COURT OF THE SMALL CAUSES JUDGE, MUMBAI

Civil Suit No. 500/2009

Shri P.S.D.
Plaintiff

Versus
Shri S.M.P.
Defendant

AFFIDAVIT IN SUPPORT OF APPLICATION FOR APPOINTMENT OF COURT COMMISSIONER

I, Shri S.M.P., the defendant in the present case, do hereby solemnly affirm and state as follows:

1. That the plaintiff has filed the present suit against the defendant for fixation of standard rent and recovery of
possession.
2. That the defendant has filed a written statement and an application for the grant of stay in response to the suit.
3. That the plaintiff has erroneously claimed that the area occupied by the defendant is 280 sq. ft., whereas the
actual area is approximately 480 sq. ft.
4. That, to determine the actual area occupied by the defendant and to measure the suit premises, it is essential to
appoint a court commissioner.
5. That the plaintiff has attempted to mislead this Hon’ble Court by misstating the area as 280 sq. ft.
6. That, unless a court commissioner is appointed, the defendant will suffer irreparable loss and damages.
7. That the plaintiff must amend the plaint to correctly reflect the actual area of the suit premises, failing which the
appointment of a court commissioner is indispensable.
8. That the plaintiff’s agents attempted to demolish part of the suit premises at 9:00 a.m. on [date], reducing the
area from 480 sq. ft. to 280 sq. ft.
 9. That the appointment of a court commissioner is necessary to record the actual area of the suit premises and to
prevent injustice to the defendant.
10. That failure to appoint a court commissioner will result in the defendant being deprived of the opportunity to
present accurate facts to this Hon’ble Court, causing irreparable harm.
11. That the statements made in paragraphs 1 to 10 above are true and correct to the best of my knowledge and
belief.

Mumbai, [Date]
Sd/- S.M.P.
Defendant

Sd/- xXx
Advocate for the Defendant

VERIFIED: The above affidavit has been duly signed and verified by the defendant in my presence.

[Signature and Seal]

Commissioner/Magistrate/Oath Officer

iii. Application for Compromise of Suit

Introduction to Order XXIII of the Code of Civil Procedure, 1908 (CPC): Order XXIII of the CPC provides rules related to
the withdrawal and adjustment of suits. The main objective of this order is to alleviate the burden on the courts by
allowing parties to consider alternative ways to resolve disputes. This can include settlement agreements between the
parties or the option for a plaintiff to abandon or withdraw from a suit or a part of it. By providing these rules, the CPC
encourages more efficient handling of cases and helps reduce unnecessary litigation. The order is comprised of seven
rules: Rule 1, 1A, 2, 3, 3A, 3B, and 4.

Detailed Analysis of the Rules:

Rule 1: Withdrawal of Suit or Abandonment of Part of Claim

• Withdrawal or Abandonment by the Plaintiff: A plaintiff has the right to withdraw their suit or any part of the
suit against the defendant.
• Permission for Minors: In cases involving minors, court approval is required for the abandonment of the suit or
any part of it. An affidavit from the next friend (guardian or representative of the minor) must accompany the
application for the court's leave.
• Conditions for Withdrawal: The Court can grant permission for the withdrawal of a suit or part of a claim if:
o The suit is likely to fail due to a formal defect.
o There are sufficient grounds for the plaintiff to file a fresh suit on the same subject matter or part of the
claim.
• Terms and Conditions: The Court may impose conditions when allowing withdrawal and may give the plaintiff
the liberty to initiate a new suit related to the subject matter or part of the claim.
• Consequences of Withdrawal without Permission:
 o If a plaintiff withdraws from a suit or part of a claim without obtaining permission as outlined in sub-rule
(3), they are liable for costs as determined by the Court and are barred from filing a new suit related to
the same subject matter or part of the claim.
• Consent of Co-Plaintiffs: The rule also clarifies that one of several co-plaintiffs cannot withdraw or abandon a
suit or part of it without the consent of the other plaintiffs.

Rule 1A: Transposition of Defendants as Plaintiffs

• Application of Transposition: If a suit is withdrawn or abandoned by the plaintiff under Rule 1, a defendant can
apply to be transposed as a plaintiff under Rule 10 of Order I (which governs the joining and misjoinder of
parties).
• Consideration by the Court: The Court, when considering the application for transposition, must evaluate
whether the defendant has a substantial question that needs to be addressed against any of the other
defendants.

Detailed Analysis of the Remaining Rules of Order XXIII of CPC

Rule 2: Limitation Law Not Affected by First Suit

• Implication: When a plaintiff is granted permission to institute a fresh suit after withdrawal under Rule 1, the
law of limitation applies as if the first suit had never been filed. This means that the time period for filing the
new suit starts afresh, without considering the period during which the original suit was pending.
• Purpose: This rule ensures that a party’s right to file a fresh suit is not penalized by the time spent on the
withdrawn suit, promoting fair access to justice while preserving the principle of limitation.

Adjustment or Compromise of Suit under Order XXIII of CPC

Compromise in a suit is a significant process that allows parties to resolve their disputes amicably even after a suit has
been initiated. Order XXIII Rule 3 of the CPC outlines the legal framework for recording and enforcing such compromises.
Here’s a detailed breakdown of the provisions and conditions for a valid compromise:

Conditions for a Valid Compromise (Rule 3 of Order XXIII)

1. Agreement Between Parties: There must be a mutual agreement or compromise between the parties involved
in the suit.
2. Written and Signed: The compromise should be documented in writing and signed by all parties to ensure
authenticity.
3. Lawfulness: The compromise must be lawful and must not contravene any provisions of the Indian Contract Act,
1872.
4. Court Record: The compromise must be recorded by the concerned court.
5. Consent Decree: The court must pass a decree in accordance with the recorded compromise, called a consent
decree.

Jurisdiction and Appeal

• Jurisdiction for Disputes: If a dispute arises regarding the genuineness or validity of the compromise after the
consent decree has been passed, the original court that recorded the compromise and passed the decree retains
jurisdiction to hear the matter.
• Appeal Rights: Parties can appeal against the consent decree as they would against any other decree. However,
filing a fresh suit on the same matter is barred by Rule 3A of Order XXIII.

Role of the Court

 • Verification: The court’s role is to ensure that the agreement is lawful and adheres to the principles laid down in
the Indian Contract Act, 1872. The court does not actively decide the merits of the case but acts as an overseer
to confirm that the agreement is legitimate and fair.
• Consent Decree: A consent decree passed by the court is not considered a decision of the court on the merits of
the case. Instead, it merely records the agreement between the parties and provides judicial recognition to it.

Safeguards for Minors (Rules 6 and 7 of Order 32)

• Protection of Minors: Rules 6 and 7 of Order 32 provide additional safeguards for minors in legal proceedings. A
guardian or next friend cannot compromise a suit involving a minor without the express leave of the court. This
provision ensures that the minor's best interests are protected and that any compromise is in their favor.

Implied Authority of Advocates

• Authority to Compromise: Advocates representing parties in a suit have implied authority to agree to a
compromise if they believe that it is in the best interest of their clients. In such cases, the advocate does not
need to seek the court’s permission to settle.

Legal Standing of a Compromise Agreement

• Not Treated as Res Judicata: Although a compromise agreement is recorded by the court and forms the basis
for a consent decree, it is not generally considered res judicata. This means that it does not bar a party from
raising the same issue in future proceedings unless a decree has been passed based on that compromise.
• Exceptions: In some cases, a compromise agreement may be treated as res judicata, particularly if it has been
acted upon and accepted by the court as part of a decree.

Execution of a Consent Decree

• Execution Process: The execution of a consent decree follows the same process as that of an ordinary decree.
The amendment to the CPC in 1976 made it clear that consent decrees could be passed by the court, reinforcing
their status and enforceability.
• Independence from Subject Matter: The passing of a consent decree does not depend on whether the subject
matter of the compromise is identical to the original suit. The focus is on the agreement between the parties
and the court's role in formalizing it through a decree.

Rule 3A: Bar to Suit

• Implication: A subsequent suit challenging the lawfulness of a compromise that was recorded in an earlier suit,
in which a decree was passed, cannot be maintained. This rule bars the reopening of issues regarding the validity
of the compromise once a decree has been passed based on it.
• Purpose: The rule is meant to prevent litigants from repeatedly questioning the legitimacy of agreements that
have already been judicially acknowledged, thereby promoting finality and stability in legal proceedings.

Rule 3B: No Agreement or Compromise to Be Entered in a Representative Suit Without Leave of Court

• Requirement: In a representative suit, any agreement or compromise must be expressly recorded in the
proceedings with the Court’s leave. If such an agreement or compromise is made without the Court’s
permission, it is void.
• Notice to Interested Parties: Before granting leave for such an agreement or compromise, the Court must notify
persons who appear to be interested in the suit in a manner it deems fit.
• Purpose: This rule ensures that representative suits, which involve parties acting on behalf of a larger group, are
not compromised without careful judicial oversight to protect the interests of all affected parties.
Rule 4: Proceedings in Execution of Decrees Not Affected

• Clarification: The provisions of Order XXIII do not apply to proceedings in the execution of a decree or order.
This means that the rules concerning withdrawal, compromise, or abandonment of suits do not impact the
execution phase of a judgment.
• Purpose: This exception safeguards the integrity of the execution process, ensuring that modifications to suits or
claims do not disrupt the enforcement of already-decided cases.

Case Laws for Context

1. Baidyanath Nandi v. Shyama Sundar Nandi (1943):

o Finding: The Calcutta High Court ruled that when one of several plaintiffs wishes to withdraw from the
suit without reserving the right to file a fresh suit on the same subject matter, consent from the other
plaintiffs is not required.
o Implication: This case clarifies that the right to withdraw does not depend on the agreement of co-
plaintiffs unless explicitly stated.
2. Triloki Nath Singh v. Anirudh Singh (2020):
o Finding: The Supreme Court held that a suit for a declaration challenging the validity of a compromise
recorded in a previous suit where a decree was passed is barred under Rule 3A.
o Implication: This case reinforces the principle of finality in judgments involving compromises, protecting
against subsequent suits that seek to undo them.
3. Moti Dinshaw Irani and Anr. v. Phiroze Aspandiar Irani and Ors. (2024):
o Finding: It was ruled that if an earlier suit was pending but no decree had been passed, Rule 3A does not
apply.
o Implication: This distinction clarifies that Rule 3A applies only after a decree has been passed in a suit.
4. Kapoori Bai & Ors. v. Neelesh & Ors. (2023):
o Finding: The Madhya Pradesh High Court held that if one plaintiff with an independent and severable
right seeks to abandon their claim, the Court can grant permission to do so at its discretion.
o Implication: This highlights the Court’s discretion in allowing partial withdrawals or abandonment in
suits with multiple plaintiffs.

APPLICATION UNDER ORDER 23, RULE 3 READ WITH SECTION 151 CPC FOR RECORDING COMPROMISE

IN THE COURT OF............................

Suit No..................... of 20...

IN RE:
A.B. .................................................................. Plaintiff
Versus
C.D. .......................................................... Defendants

Application Under Order 23 Rule 3 read with Section 151 CPC for recording a compromise and granting permission for
withdrawal of suit

Most Respectfully Showeth:

1. That the plaintiff has filed a suit for mandatory injunction, being Suit No. ...................., which is pending before
this Hon’ble Court and is fixed for hearing on .................... .
2. That in the aforementioned suit, the plaintiff has prayed for a mandatory injunction relating to the alleged
tenanted portion of property bearing No. ....................................... along with a claim for damages.
 3. That the plaintiff and the defendants have now amicably resolved the matter and arrived at a compromise. The
plaintiff has agreed to relinquish all rights, title, and interest in the alleged tenanted portion of the property
mentioned above, pursuant to the Deed of Settlement dated .................... . The terms and conditions of this
settlement are detailed in the Compromise Deed annexed hereto and marked as Annexure ‘A’, which the
defendants acknowledge and agree to.
4. That the compromise is lawful, made voluntarily by both parties, and addresses all issues in dispute in the
present suit.
5. That in light of the compromise, the plaintiff seeks the kind indulgence of this Hon’ble Court to record the
compromise and permit the withdrawal of the suit as no further adjudication is necessary.
6. That the parties have agreed to bear their respective costs arising from this suit.

PRAYER

In view of the above, it is most respectfully prayed that this Hon’ble Court may graciously be pleased to:

a) Record the compromise between the parties as per the Compromise Deed dated .................... annexed hereto;

b) Permit the plaintiff to withdraw the suit; and

c) Pass any other or further orders as may be deemed fit and proper in the interest of justice.

Filed By:
Plaintiff: ....................
Defendant No. 1: ....................
Defendant No. 2: ....................
Defendant No. 3: ....................

Through Counsel:
Advocate for the Parties
Place: ....................
Dated: ....................

AFFIDAVIT IN SUPPORT OF APPLICATION

IN THE COURT OF............................

Suit No..................... of 20...

In the Matter of:

A.B. ................................................................... Plaintiff
Versus
C.D. ........................................................... Defendants

AFFIDAVIT

I, .........................................., S/o ......................................................., resident of ......................................................., do

hereby solemnly affirm and declare as under:

1. That I am the plaintiff in the present case and am fully competent to swear this affidavit.
 2. That the contents of the accompanying application under Order 23 Rule 3 read with Section 151 CPC for
recording compromise and granting permission for withdrawal of the suit are true and correct to my knowledge.

DEPONENT

VERIFICATION

Verified at ............................................... on this ............................ day of ............................ that the contents of the
above affidavit are true and correct to my knowledge and belief, no part of it is false, and nothing material has been
concealed therefrom.

DEPONENT

v. Application for Appointment of Guardian

Hindu Minority and Guardianship Act, 1956 (HAMA)

The Hindu Minority and Guardianship Act, 1956, was enacted to provide a comprehensive legal framework for
guardianship concerning Hindu minors. This legislation aimed to ensure that the rights and responsibilities of
guardianship were clearly defined and regulated.

Definition of Minor and Guardian

• Minor: As per Section 4(a) of the Act, a minor is defined as a person who has not attained the age of 18 years.
• Guardian: According to Section 4(b), a guardian is someone who has the care of a minor's person or property or
both. This includes:
o A natural guardian.
o A guardian appointed by the minor’s father or mother through a will.
o A guardian appointed or declared by a court.
o A person authorized by an enactment concerning the court of wards.

Types of Guardians

Guardianship under the Act can be divided into the following types:

1. Natural Guardian
2. Testamentary Guardian
3. De Facto Guardian
4. Guardian Appointed by the Court

Natural Guardians (Section 6)

Section 6 of the Act outlines who qualifies as a natural guardian for a Hindu minor:

• For a boy or unmarried girl:

o The father is the natural guardian, and after him, the mother. It is specified that custody of a minor
under the age of five years should generally be with the mother.
• For an illegitimate boy or unmarried illegitimate girl:
o The mother is the natural guardian, and after her, the father.
 • For a married girl:
o The husband is the natural guardian.

Restrictions on Guardianship:

• The Act specifies that no person can act as a natural guardian if:
o They have ceased to be a Hindu.
o They have renounced the world completely, becoming a hermit (vanaprastha) or an ascetic (yati or
sanyasi).
• Clarification: The terms father and mother do not include stepfather and stepmother.

Testamentary Guardian

A testamentary guardian is one appointed by the parents of the minor through a will. This guardian can be appointed to
care for the minor’s person and/or property upon the death of the parents.

De Facto Guardian

A de facto guardian is someone who assumes the responsibility for the care of a minor without formal appointment by a
court or under a will. This may occur in practice when a person takes care of the child without any legal formalization.

Guardian Appointed or Declared by Court

Under the Hindu Minority and Guardianship Act, 1956, the courts have the power to appoint or declare a guardian for a
minor. This act supplements the Guardians and Wards Act, 1890, which provides the overarching framework for
guardianship in India. Here is an overview of the process and considerations involved in appointing and removing a
guardian:

Appointment of Guardian by Court

• Jurisdiction: The District Court has the authority to appoint a guardian for a minor, whether for the child's
person, property, or both.
• Welfare of the Minor: The court must prioritize the welfare of the minor as the paramount consideration when
appointing a guardian. This principle is emphasized in Section 13 of the Act.
• Factors for Consideration: When appointing a guardian, the court considers various factors such as:
o The age of the child.
o The gender of the child.
o The personal law applicable to the child.
o The ability of the prospective guardian to provide a suitable environment for the child's upbringing.
• Legal Precedent: In Mohini v. Virendra (2017), the Supreme Court reinforced that the welfare of the minor
should be the primary focus when a court appoints or declares a guardian.

Removal of a Guardian

The court can remove a guardian if it determines that the appointment is not in the best interest of the minor. Section
13 of the Act allows for the termination of guardianship under certain circumstances:

Grounds for Removal of a Guardian

1. Misuse of Property: If the guardian uses the minor's property for personal purposes, this is grounds for removal.
2. Renunciation of Worldly Life: If the guardian renounces the world and becomes a hermit (sanyasi), they may no
longer be fit to serve as a guardian.
 3. Loss of Hindu Status: If the guardian ceases to be a Hindu, this may disqualify them from continuing as a
guardian.
4. Best Interest of the Child: The court can remove the guardian if it finds that continuing the guardianship is not in
the child's best interest.

IN THE COURT OF CIVIL JUDGE (SENIOR DIVISION)

AT ALIPORE
Guardianship Case No. ........... of 2010

In the matter of:

MB, a minor under the age of 18 years, residing at 1 Construction Road, Mumbai

And

In the matter of:

PN, residing at [insert address] (Petitioner)

Versus

RS, residing at [insert address]

RT, residing at [insert address] (Respondents)

Application under Section 10 of the Guardians and Wards Act, 1890 for the Appointment of a Guardian for the Minor

The humble petition of the petitioner above-named most respectfully shows:

1. Details of Minor:
o MB is the son of the late PQ, a businessman, who was residing at [address].
o PQ passed away on 15th June 1999 at his residence at [address].
o The mother of the minor, [Name], predeceased PQ.
o The petitioner was a close friend of the deceased.
2. Age of the Minor:
o MB is a minor born on 1st May 1989 and is currently approximately 10 years old.
3. Current Residence of Minor:
o The minor is presently residing with his distant relative at [address].
4. Assets and Properties of Minor:
o The minor is entitled to certain assets in his own right, including:
▪ Life Insurance Policies No. 1 and 2 for Rs. 10,000 and Rs. 20,000 respectively, for which the
minor is the nominee.
▪ Fixed Deposits with [Bank Name] for Rs. 50,000 and Rs. 80,000, with joint names of the
deceased and the minor, and the amounts payable to "either or survivor."
▪ The premises No. [address] inherited by the minor.
5. Minor’s Religious Affiliation:
 o The minor is governed by Hindu Law.
6. Relatives of the Minor:
o The following are the other relatives of the minor:
▪ RS, the brother of the deceased, residing at [address].
▪ QT, the brother’s son of the deceased, residing at [address].
7. Appointment of Guardian:
o There has been no appointment of a guardian for the minor either by Will or by the Court. The deceased
PQ died intestate.
8. Proposed Guardian:
o GP, the maternal uncle of the minor, is a service holder, married, and residing at [address]. GP is
financially stable with a monthly income of Rs. 5,000. He is a man of good character and habits and is a
fit and proper person to be appointed as the guardian of the minor’s person and property.
9. Need for Appointment:
o The minor requires a guardian for his welfare, including the collection and proper investment of Life
Insurance Policy proceeds, Fixed Deposit Receipts, and the maintenance of his inherited property.
o The minor also requires proper education, for which his maternal uncle GP is willing to devote time and
effort.
10. Urgency:

• The minor’s financial assets, including insurance and property, require urgent attention to ensure proper
management and protection.

11. Application for Guardianship:

• In the best interest of the minor, this application is made for the appointment of a guardian.

12. Risk to Minor:

• Without an appointed guardian, the minor may suffer significant prejudice.

13. Bona Fide Application:

• This application is made in good faith, with the welfare of the minor being the primary concern.

Reliefs Sought:

Your petitioner, therefore, humbly prays that Your Honour may be pleased to pass the following orders:

1. Mr. GP, or some other fit and proper person, be appointed as the guardian of the person and property of the
minor MB.
2. A security of Rs. 1,00,000 be furnished by the said GP or the guardian, with Mr. X and Mr. Y as sureties.
3. A monthly sum of Rs. 3,000 be fixed for the minor's maintenance and education.
4. Rs. 500 per month be allowed to the guardian as remuneration for managing the minor’s assets and welfare.
5. The guardian be authorized to invest the minor’s funds in a safe manner.
6. The guardian be permitted to carry out necessary repairs to the tenanted premises and collect arrears and
current rents.
7. The costs of this application be paid from the minor’s income.
8. Any further orders or directions as the Court deems fit and proper.

Verification:
I, PN, son of NP, aged 30 years, and the petitioner above-named, do hereby declare that the statements contained
herein are true to my knowledge, based on information derived from documents, the mother of the minor, and my
personal association with the deceased, which I believe to be true.

Place: Mumbai
Date: [Insert Date]
Signature of the Petitioner: ______________________

Identified by: Advocate for the Petitioner

Declaration by Proposed Guardian (GP):

I, GP, the maternal uncle of the minor, residing at [insert address], do hereby agree to accept the office of the guardian
of the person and property of the minor MB, son of PQ, if so appointed by this Honourable Court.

Signature of the Proposed Guardian: ______________________

Identified by: Advocate for the Proposed Guardian

This version maintains a flowing narrative while aligning with legal norms and structures.

v. Application to Sue as an Indigent Person under Order 33 CPC

Order XXXIII of the Code of Civil Procedure, 1908 (CPC) is designed to ensure that access to justice is not restricted by a
person’s financial status. It provides a legal mechanism for indigent persons—those who cannot afford the prescribed
court fees—to initiate lawsuits without facing financial constraints. This provision aligns with the principles of equal
access to justice, as emphasized in Article 14 (Right to Equality) and Article 39A (Free Legal Aid and Equal Justice) of the
Indian Constitution.

Historical Background and Purpose of Order XXXIII

The principle of in forma pauperis has a rich history, rooted in the common law tradition, where individuals who lacked
the financial means were allowed to seek justice without prepaying court fees. This principle was adopted into Indian
law through Order XXXIII of the CPC, reflecting the country's commitment to ensuring that justice is not a privilege
reserved for those with financial resources but a right accessible to all.

The primary purposes of Order XXXIII are:

1. Facilitating Access to Justice: It empowers economically disadvantaged individuals to approach the courts for
legal redress without the burden of court fees.
 2. Safeguarding Revenue: It allows the state to recover court fees from the opponent or the subject matter of the
suit if the indigent person is successful in their claim.

Definition of an Indigent Person

Order XXXIII, Rule 1 defines an indigent person as someone who:

• Lacks sufficient means to pay the court fees required to file a suit.
• Owns property worth less than ₹1,000, excluding essential items.

This definition ensures that the financial condition of the applicant is genuinely inadequate to pay for court fees without
compromising basic living standards.

Exclusion of Certain Properties in Determining Indigence

When evaluating whether a person qualifies as indigent, certain properties are not considered in the assessment:

1. Clothing and Household Utensils: Essential items for daily living.

2. Immovable Property: If it serves as the primary source of livelihood and is not easily liquidated.
3. Tools of Trade: Equipment necessary for the person’s profession or trade.

Fraudulent Disposal of Property

If an individual is found to have transferred or disposed of property with the intent to qualify as indigent, their
application for a waiver of court fees will be rejected. This ensures that the system is not misused by individuals who
manipulate their assets to gain the benefit of free court access unjustly.

Significance of Order XXXIII

Order XXXIII plays a crucial role in promoting fairness in the judicial system by ensuring that the right to seek legal
recourse is not restricted by an individual's economic limitations. It embodies the constitutional commitment to equal
access to justice and upholds the principle that no one should be denied legal representation or relief due to poverty.
This provision serves as a fundamental part of India's effort to make justice inclusive and equitable.

Procedure for Filing Suits by Indigent Persons Under CPC

Under Order XXXIII of the CPC, an indigent person can file a suit without paying court fees by following a structured
procedure. This ensures that financial constraints do not prevent access to justice. The procedure involves the following
key steps:

1. Filing of Application (Order XXXIII, Rule 2)

• Initiation: The applicant must file an application in the appropriate court, requesting permission to file a suit as
an indigent person.
• Content Requirements:
o Financial Status: The application should provide a clear description of the applicant’s financial situation
and their inability to afford court fees.
o Schedule of Assets: The applicant must list their assets, detailing both movable and immovable
property.
o Particulars of the Suit: The application must include details similar to those found in a regular plaint,
outlining the nature of the suit and the relief sought.
2. Inquiry into the Application (Order XXXIII, Rule 1A)

• Court's Inquiry: The court conducts an inquiry to verify the applicant's claim of indigency, typically carried out by
the chief ministerial officer or by the court itself if necessary.
• Examination Includes:
o Financial Status: Assessment of the applicant’s financial resources.
o Property Evaluation: Review of the applicant’s assets and liabilities.
o Ulterior Motives: Checking if the suit is barred by law or if the applicant has other motives that could
affect their claim.
• Outcome: If the court finds the applicant’s claim valid, the application is admitted, and the suit proceeds
without court fees.

3. Notice to the Opposing Party (Order XXXIII, Rule 6)

• Issuance of Notice: The court issues a notice to the defendant, informing them of the application and allowing
them to contest the claim.
• Defendant's Response: The defendant can argue that the applicant is not indigent, presenting evidence to
support their claim.

4. Adjudication of the Application (Order XXXIII, Rule 7)

• Decision: After the inquiry and consideration of both parties’ evidence, the court makes a determination
regarding the indigency of the applicant.
• Admission of Suit: If the court finds the applicant indigent, the application is treated as a plaint, and the case
proceeds as a regular suit without court fees being paid.

5. Rejection of Application (Order XXXIII, Rule 5)

The court can reject the application for the following reasons:

• Non-compliance: The application is not filed in the prescribed manner.

• Financial Status: The applicant is found not to be indigent.
• Fraudulent Actions: The applicant has disposed of assets fraudulently to appear indigent.
• No Cause of Action: The allegations in the plaint do not reveal a valid cause of action.
• Barred by Law: The suit is not maintainable due to legal restrictions.
• Pre-existing Agreement: The applicant has entered into an agreement with an interested party regarding the
subject matter of the suit.
• Alternative Actions: If any of the above conditions are met, the court may reject the application, after which the
applicant must file the suit in the usual manner, paying the required court fees.

Rights and Liabilities of an Indigent Person

The status of an indigent person under Order XXXIII of the CPC comes with specific rights and obligations. These
provisions are crucial in ensuring that those who cannot afford the cost of litigation still have access to justice.

Rights of an Indigent Person

1. Exemption from Court Fees:

o The primary right of an indigent person is exemption from paying court fees for filing the suit. This
extends to process fees and other related expenses. This ensures that financial constraints do not
prevent access to the judicial system.
2. Representation by a Lawyer:
 o The indigent person has the right to legal representation. If they cannot afford a lawyer, the court may
assign a legal representative to assist them. This aligns with Article 39A of the Constitution, which
guarantees free legal aid and equal access to justice.
3. Right to Appeal:
o Indigent persons have the right to file appeals without paying court fees, as outlined in Order XLIV of
the CPC. The process for filing an appeal is similar to that for filing a suit, including the inquiry into
financial status and the potential for fee exemption if approved.

Liabilities of an Indigent Person

1. Payment of Court Fees if They Succeed:

o If the indigent person wins the suit, the court may require payment of the court fees that would have
been due if they had not claimed indigency. The state has the first charge on the property involved in
the suit or may recover from the opposing party.
2. Withdrawal of Indigent Status:
o If an indigent person’s financial situation improves and they are able to pay court fees, the court may
withdraw their status. Additionally, if they engage in misconduct or improper behavior during the
proceedings, the court can revoke their indigent status.
3. Liability for Costs if They Fail:
o If the suit is unsuccessful, the indigent person may be required to pay court fees and related costs
retrospectively. The court can direct payment of these fees to cover expenses incurred during the
proceedings.

Appeals by Indigent Persons

Order XLIV allows indigent persons to file appeals without paying the requisite fees. The procedure follows that of filing
a suit under Order XXXIII. The court assesses the applicant’s financial condition, and if found to be indigent, grants
permission for the appeal to proceed without payment. If rejected, the applicant must pay the fees within a specified
time period for the appeal to move forward.

Case Laws on Suits by Indigent Persons

1. M.L. Sethi v. R.P. Kapur (1972):

o Clarified that procedural rules applicable to ordinary suits also apply to suits filed by indigent persons
under Order XXXIII.
2. Union Bank of India v. Khader International Construction (2001):
o Affirmed that Order XXXIII is an enabling provision allowing indigent persons to file without court fees
at the initial stage, with the state entitled to recover fees if the suit is dismissed.
3. Smt. Lakshmi v. Vijaya Bank (2010):
o Held that the right to sue as an indigent person is personal and does not pass to the legal
representatives after the applicant's death. Legal representatives must file the suit in the usual manner
if they wish to proceed.
4. Sumathy Kutty v. Narayani:
o Established that the key test for determining indigence is whether the person can convert assets into
cash without undue hardship. The inquiry process must be thorough to ensure genuine claims.

Conclusion

Order XXXIII of the CPC embodies the principle that access to justice should not be restricted by one’s financial capacity.
By enabling indigent persons to file suits and appeals without court fees, it upholds constitutional rights to equality and
free legal aid. However, challenges like delays, fraudulent claims, and lack of awareness must be tackled to strengthen
this provision. The legal system must continue to evolve to ensure that justice remains accessible to all, irrespective of
their economic status.
IN THE COURT OF THE LEARNED JUDGE AT ___________

Title Suit No. _______/20

In the matter of:

A.B.
(Plaintiff)

Versus

C.D.
(Defendant)

Suit for Title and Possession Valued at Rs. ___________

Application to Sue as an Indigent Person

The Plaintiff above-named respectfully states as follows:

1. That the Plaintiff, A.B., is an indigent person and is not possessed of sufficient means to pay the court fees of Rs.
___________ as prescribed by law for the plaint in the above-referenced suit. The Plaintiff does not own any
property worth Rs. ___________, apart from the subject matter of this suit.
2. The Plaintiff declares that no agreement has been entered into with any individual or entity regarding the
subject matter of the suit that would affect the Plaintiff's financial status or ability to pay the requisite court
fees.
3. The Plaintiff further affirms that no property has been transferred or disposed of within the two months
preceding the filing of this application, either fraudulently or with the intent to obtain permission to sue as an
indigent person.
4. The Plaintiff provides the following details of properties owned and their estimated values:

(a) [Description of Property 1]: Rs. ___________

(b) [Description of Property 2]: Rs. ___________
Total Value (in words): Rs. ___________

Prayer:

In light of the above facts and circumstances, the Plaintiff humbly prays that this Hon’ble Court may be pleased to:

a. Permit the Plaintiff to sue as an indigent person under the provisions of Order XXXIII of the Code of Civil Procedure,
1908.
b. Grant any further relief as this Hon’ble Court may deem fit and proper in the interest of justice.
Place: ___________
Date: ___________

Signature of the Plaintiff

A.B.
Address: ___________

Advocate: ___________
(If represented by an advocate)

vi.Appeal from orders under order 43 of CPC

Order 43 CPC of the Code of Civil Procedure, 1908 deals with appeals from orders. This provision specifies the types of
orders from which an appeal can be filed, under the provisions of Section 104 of the CPC. Here is a detailed description
of the orders subject to appeal:

1. Appeals from Orders

An appeal lies from the following types of orders:

• (a) Orders under Rule 10 of Order VII that return a plaint to be presented to the proper court, except where the
procedure specified in Rule 10A of Order VII has been followed.
• (c) Orders under Rule 9 of Order IX that reject an application (in a case open to appeal) for setting aside the
dismissal of a suit.
• (d) Orders under Rule 13 of Order IX rejecting an application (in a case open to appeal) for setting aside a decree
passed ex parte.
• (f) Orders under Rule 21 of Order XI.
• (i) Orders under Rule 34 of Order XXI regarding objections to the draft of a document or endorsement.
• (j) Orders under Rule 72 or Rule 92 of Order XXI that set aside or refuse to set aside a sale.
• (ja) Orders rejecting an application made under sub-rule (1) of Rule 106 of Order XXI, provided the original
application under sub-rule (1) of Rule 105 is appealable.
• (k) Orders under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit.
• (l) Orders under Rule 10 of Order XXII granting or refusing leave.
• (n) Orders under Rule 2 of Order XXV rejecting an application (in a case open to appeal) for setting aside the
dismissal of a suit.
• (na) Orders under Rule 5 or Rule 7 of Order XXXIII rejecting an application for permission to sue as an indigent
person.
• (p) Orders in interpleader suits under Rule 3, Rule 4, or Rule 6 of Order XXXV.
• (q) Orders under Rule 2, Rule 3, or Rule 6 of Order XXXVIII.
• (r) Orders under Rule 1, Rule 2, Rule 2A, Rule 4, or Rule 10 of Order XXXIX.
• (s) Orders under Rule 1 or Rule 4 of Order XL.
• (t) Orders refusing to re-admit under Rule 19 of Order XLI, or refusing to rehear under Rule 21 of Order XLI.
• (u) Orders under Rule 23 or Rule 23A of Order XLI that remand a case, provided an appeal would lie from the
decree of the Appellate Court.
• (w) Orders under Rule 4 of Order XLVII granting an application for review.
Overview of Appeals from Orders

The provision in Order 43 CPC is aimed at ensuring that parties have the opportunity to challenge certain types of orders
made by the court that are not decrees. The right to appeal provides a safeguard against potential errors or injustices
that might occur in interim or procedural orders. These orders can impact the progress of a suit, and an appeal ensures a
higher court can review and, if necessary, correct the decision.

Important Notes

• The scope of Order 43 does not include appeals against all orders; only those explicitly mentioned are
appealable.
• The appeals from orders can be made to higher courts as specified, and typically the appeals must be filed
within the prescribed time limits.

These provisions uphold the principle of fairness and provide litigants an opportunity to seek redress when significant
procedural or interim decisions are questioned.

Case Summary: Bhushan Oil and Fats Pvt. Ltd. vs. Mother Dairy Fruit and Vegetables Pvt. Ltd.
Court: Delhi High Court

Issue: Maintainability of an appeal under Order 43 Rule 1 CPC against the rejection of an application under Order 7 Rule
11 CPC.

Background: The Appellant filed a suit for trademark infringement and passing off. The Respondent’s application to
reject the suit under Order 7 Rule 11 CPC was dismissed by the Hon'ble Single Judge on 22.09.2022. The Appellant
appealed this decision under Order 43 Rule 1 CPC.

Judgment: The Hon'ble Division Bench dismissed the appeal, stating that Order 43 Rule 1 CPC only allows appeals from
orders specifically mentioned in it. The rejection of an application under Order 7 Rule 11 CPC is not included. The court
cited precedents, including Kandla Export Corporation v. OCI Corporation (2018) and Odean Builders (P) Ltd. v. NBCC
(India) Ltd. (2021), to support this view.

Conclusion: The appeal was deemed not maintainable, reinforcing that only orders explicitly mentioned in Order 43
Rule 1 CPC can be appealed.

IN THE COURT OF ………………..

Civil Misc. Stay Application No. ……. of 20……

(Under Section 151 of the Civil Procedure Code)

Shri ……………………………………..
(Appellant/Applicant)

Versus

……………… …Plaintiff/Respondent
Application for Stay Under Order 43 of the Civil Procedure Code

To,
The Hon’ble Chief Justice and His Companion Judges of the Hon’ble Court,

The humble application on behalf of the above-named Applicant respectfully states as follows:

1. That the opposite party No. 1, ………………, filed a suit for permanent injunction in the Court of Civil Judge, …………,
being Original Suit No………, titled as ………. v. ……….., praying that the respondent be restrained from interfering
in peaceful possession over the disputed tank area of ……….. Acres situated in Plot No……….. A true copy of the
plaint is annexed herewith and marked as Annexure No. 1.
2. That during the pendency of the suit, the opposite party No. 1 filed an application for temporary injunction. A
true copy of the said application is annexed herewith and marked as Annexure No. 2.
3. That the lower court, on the application of the plaintiff/opposite party No. 1, appointed an Amin Commissioner
to submit a report, which was filed before the court below on …………..
4. That the appellant-applicant, on ……………, filed objections against the temporary injunction application moved
by the plaintiff/opposite party. A true copy of the said objections is annexed herewith and marked as Annexure
No. 3.
5. That the appellant-applicant states that he was granted Patta (land allotment) on …………20….. for an area of
…….. acres in the northwest portion of Plot No. ……..
6. That the Amin Commissioner submitted a report to the court below on ……….20……. The counsel for the
appellant-applicant sought time to file objections against the report, but the lower court refused the request,
directed the parties to argue on the report, and pronounced judgment on the next day, i.e., …………. The
appellant filed his reply to the temporary injunction application on …………20…….
7. That the court below relied on the Amin Commissioner's report without giving the appellant-applicant an
opportunity to file objections to it, thereby causing grave prejudice to the applicant.
8. That the appellant’s counsel moved an application before the court below on ………20..…. to seek a stay of the
order dated ………… for 15 days, enabling the filing of this appeal. However, the lower court rejected the
application.
9. That the order of the lower court has not yet been implemented. Hence, it is in the interest of justice to stay the
operation of the impugned judgment and order dated ………. passed in Original Suit No…………, granting an ad
interim injunction, during the pendency of this appeal. If the stay is not granted, the applicant will suffer
irreparable loss and hardship.

Prayer

It is, therefore, most respectfully prayed that this Hon’ble Court may graciously:

a. Stay the operation of the impugned judgment and order dated …………… passed in Original Suit No………………………… of
20..……. (Shri…………………………………. v. ………………………………) pending in the Court of Civil Judge, ………… during the
pendency of this appeal before this Hon’ble Court.

b. Pass such other and further orders as this Hon’ble Court may deem fit and proper in the circumstances of the case.

Advocate for the Applicant

Place: ___________
Date: ___________
 vii. Application for execution

The process of executing a decree passed by a civil court in India is governed by the Code of Civil Procedure (CPC), which
provides a framework for the enforcement of judgments. This is crucial for ensuring that a judgment-creditor (the
person awarded the decree) can recover what is legally owed, in this case, from the judgment-debtor (the person
against whom the decree is made). The relevant provisions for executing decrees and orders are found in Sections 36 to
74 and Order 21 of the CPC, with Order 21 being the most extensive, comprising 106 rules.

Definition of Execution

Although the term "execution" is not defined in the CPC, it generally means the enforcement or implementation of a
judgment or court order. Essentially, execution involves using the court's process to compel compliance with a decree so
that the decree-holder can recover the amounts or relief awarded.

In Ghan Shyam Das v. Anant Kumar Sinha (1991), the Supreme Court emphasized the comprehensive nature of
execution provisions in the CPC, noting that Order 21 provides remedies for a variety of situations involving decree-
holders, judgment-debtors, and claimant objectors.

Courts Competent to Execute Decrees (Section 38)

A decree can be executed by:

1. The court that passed the decree.

2. The court to which the decree is transferred for execution.

Section 37 of the CPC further elaborates on which courts are considered the "court which passed a decree":

• The court of first instance that passed the decree.

• The appellate court that passed the decree in an appeal.
• The court that would have jurisdiction if the original court ceased to exist.
• The court that has jurisdiction to execute the decree when the original court loses its jurisdiction.

Special Situations and Jurisdiction Transfer

In certain circumstances, when a part of a jurisdiction is transferred from one court to another, questions arise regarding
the continuation of execution jurisdiction:

• Jurisdiction Retention: The Supreme Court, in Merla Ramanna v. Nallaparaju (1956), ruled that a court that
passed a decree retains its jurisdiction to execute it, even if the subject-matter is later transferred to another
court's jurisdiction.
• Concurrent Jurisdiction: The Explanation to Section 37, added by the Amendment Act of 1976, clarifies that
both the original and the new court (to which jurisdiction is transferred) can entertain an application for
execution without a formal transmission of the decree.

These provisions ensure that decree-holders have flexibility in seeking enforcement of their decrees, even when the
jurisdictional boundaries of courts change.

Transfer of Decree for Execution: Sections 39-42; Order 21 Rules 3-9

The general rule under the CPC is that the court which passed a decree is primarily responsible for executing it.
However, this court may transfer the decree to another court for execution under certain conditions. The grounds for
such transfer are outlined in Section 39 of the CPC:

1. Judgment-Debtor's Residence or Business: The judgment-debtor resides, conducts business, or works for gain
within the jurisdiction of the other court.
2. Insufficient Property: The judgment-debtor does not have enough property within the jurisdiction of the
original court to satisfy the decree but has property within the jurisdiction of the transferee court.
3. Immovable Property: The decree involves the sale or delivery of immovable property located outside the
jurisdiction of the original court.
4. Other Reasons: The original court deems it necessary, for recorded reasons, to transfer the decree for execution
to another court.

Discretion and Limitations:

• The decree-holder has no automatic right to demand a transfer; it is at the discretion of the court.
• Sub-section (3) specifies that the transferee court must have pecuniary jurisdiction over the original suit.
• Sub-section (4) clarifies that the court passing the decree cannot execute it against a person or property outside
its territorial jurisdiction.
• Section 46 empowers the original court to issue a precept to another court for attachment of property of the
judgment-debtor within its jurisdiction. This precept is interim and valid for up to two months unless an
exception applies.

Who May Apply for Execution: Rule 10

Applications for execution can be made by:

• The decree-holder.
• The legal representative of a deceased decree-holder.
• A representative of the decree-holder.
• Any person claiming under the decree-holder.
• A transferee of the decree-holder, if assigned by written transfer or by operation of law.
• One or more joint decree-holders, provided the application benefits all and no conditions in the decree prevent
it.
• Any person with a special interest in the decree.

Against Whom Execution May Be Taken Out

Execution can be sought against:

• The judgment-debtor.
• The legal representative of a deceased judgment-debtor, limited to the property received.
• Representatives or individuals claiming under the judgment-debtor.
• Sureties of the judgment-debtor.

Notice of Execution: Rule 22

While the CPC generally does not mandate the issuance of notice for execution, Rule 22 specifies situations where
notice must be given:

1. When an application is made more than two years after the decree.
2. When an application is made against the legal representative of the judgment-debtor.
3. When an application is made for the execution of a decree from a court in a reciprocating territory.
 4. When an application is made against the assignee or receiver of an insolvent judgment-debtor.
5. When the decree involves payment and seeks arrest and detention of the judgment-debtor.
6. When an application is made against a surety.
7. When an application is made by a transferee or assignee of the decree-holder.

Omission of Notice: Failing to issue notice when required is a fundamental defect, rendering the execution proceedings
null and void unless waived by the judgment-debtor. Sub-rule (2) allows the court to dispense with notice if it would
cause undue delay or defeat the ends of justice.

Limitation for Execution

The period of limitation for executing a decree is defined under the Limitation Act, 1963:

• General Decree: 12 years from the date of the decree.

• Decree for Mandatory Injunction: 3 years from the date of the decree.

When Executing Court May Stay Execution: Rule 26

Rule 26 addresses the power of the court to stay the execution of a decree when it has been transferred for execution:

• Power of Stay: The transferee court's power to stay execution is not as extensive as the transferor court's. The
transferee court can only grant a temporary stay to allow the judgment-debtor to seek a stay from the original
or appellate court.
• Security Requirement: The transferee court must require the judgment-debtor to provide security or impose
suitable conditions before staying execution.
• Binding Orders: The transferee court is bound by any existing orders related to the decree from the transferor
court or appellate court, as per Rule 28.

Stay of Execution Pending Suit: Rule 29

Rule 29 provides that if the judgment-debtor has a suit pending in the same court against the decree-holder:

• Conditions for Stay: The court may stay the execution of the decree until the suit is resolved, provided the
judgment-debtor furnishes security or meets other conditions deemed appropriate by the court.
• Purpose: The rule aims to facilitate the adjustment of mutual claims and prevent multiple execution
proceedings.

Mode of Execution: Section 51

Section 51 outlines the general modes of execution, while Order 21 provides detailed procedures and conditions for
each type. The modes include:

1. Delivery of Property: Handing over possession of property to the decree-holder.

2. Attachment and Sale: Attachment and sale of property or sale without attachment.
3. Arrest and Detention: Arrest and imprisonment of the judgment-debtor for a period specified in Section 58.
4. Appointment of Receiver: Appointment of a receiver to manage property or assets.
5. Other Modes: Any other method deemed suitable to fulfill the relief granted in the decree.

Questions to be Determined by Executing Court: Section 47

Section 47 is crucial for addressing matters that arise after a decree is passed and pertains to the execution, discharge,
or satisfaction of the decree. It states that:
 • Scope: Matters between the parties or their representatives related to execution, discharge, or satisfaction of
the decree should be dealt with in the execution proceedings and not through a separate suit.
• Conditions:
1. The question must arise between the parties to the original suit or their representatives (including
representative-in-interest).
2. It must relate to the execution, discharge, or satisfaction of the decree.

Appeals and Revision

• Orders under Order 21 Rule 98 (related to Rule 97) and Order 21 Rule 100 (related to Rule 99) are appealable,
allowing an aggrieved party to challenge them in a higher court.
• However, if an order is passed summarily without inquiry or framing issues under Order 21 Rule 101, the only
recourse for an aggrieved party is a revision, not an appeal. This was upheld in the Supreme Court's decision in
Sameer Singh v. Abdul Rab & Ors., 2014 (4) RCR (Civil) 914.

Concluding Remarks

The CPC provides comprehensive provisions for the execution of decrees and orders, protecting the interests of decree-
holders, judgment-debtors, and third parties. In rare cases where the execution provisions fail to provide adequate
relief, an aggrieved party can file a suit in a civil court. For more detailed procedures, such as the sale of property,
resistance to possession, and distribution of assets, readers should refer to Order 21.

IN THE COURT OF ………………..

Execution Application No. ……. of 20……

(Under Order XXI, Rule 11 of the Civil Procedure Code)

In the matter of:

……………… (Name of the Decree Holder)
(Decree Holder/Petitioner)

Versus

……………… (Name of the Judgment Debtor)

(Judgment Debtor/Respondent)

Application for Execution of Decree

The humble application of the Decree Holder above-named respectfully states as follows:

1. Decree Details:
The Hon’ble Court passed a decree dated ……… in Original Suit No. ………., titled as ………………… v.
 …………………………………. The decree, a true copy of which is annexed as Annexure No. 1, has become final and
executable.
2. Nature of Decree:
The decree is for …………………………………………………………………………………………… (e.g., payment of a sum of money,
delivery of possession, specific performance, etc.).
3. Execution Petition:
The Decree Holder seeks execution of the decree under Order XXI, Rule 11 of the Civil Procedure Code, 1908.
The execution of the decree has not been complied with by the Judgment Debtor, despite due notice and
passage of time.
4. Amount Due:
The total amount due under the decree is Rs. ……….. (in words: ………………………………….), which includes principal
amount, interest up to the date of filing this application, and any other applicable costs as per the decree.
5. Previous Attempts at Compliance:
Attempts were made to comply with the decree voluntarily, but the Judgment Debtor has failed to fulfill the
decree’s terms. Details of such attempts are provided in Annexure No. 2.
6. Reliefs Sought:
The Decree Holder prays for the following reliefs:
a. Directing the Judgment Debtor to comply with the terms of the decree, including payment of the principal
amount, interest, and costs.
b. Issuance of a notice under Order XXI, Rule 22 of the CPC to the Judgment Debtor.
c. Attachment and sale of the Judgment Debtor’s property, if necessary, for the realization of the decree
amount.
d. Any further reliefs that the Hon’ble Court may deem appropriate for the complete execution of the decree.

Prayer

In view of the above, the Decree Holder prays that this Hon’ble Court may be pleased to:

a. Pass an order for the execution of the decree dated ……… in Original Suit No. ……… as per the provisions of Order XXI
of the CPC.
b. Direct the Judgment Debtor to pay the amount due under the decree and costs incurred in this application.
c. Grant such other and further reliefs as may be deemed just and proper in the circumstances of the case.

Verification

I, ………………………., the Decree Holder/Petitioner, do hereby declare and verify under solemn affirmation that the facts
stated in this application are true to my knowledge and belief, and no part of it is false.

Place: ___________
Date: ___________
Signature of the Decree Holder

Advocate for the Petitioner

Address: ___________
Phone: ___________
Email: ___________
Annexures:

1. Copy of the Decree

2. Details of previous attempts to enforce the decree

viii. Application for caveat section 148A of CPC

Section 148A of the Civil Procedure Code (CPC) introduces the concept of a caveat, which acts as a safeguard for
individuals who might be affected by an application in a lawsuit or proceeding. It ensures that no ex parte decisions are
made without notifying those who have lodged the caveat, allowing them the opportunity to present their case. Here is
an overview and key aspects of this provision:

1. Purpose and Definition:

• Caveat is derived from the Latin word meaning "let a person be aware," which serves as a warning to the court
that no order should be passed without informing the caveator.
• In the landmark case Nirmal Chand v. Girindra Narayan, the caveat was clarified as a notification to the court,
requesting that no judgment or order be made without alerting the caveator.

2. Eligibility to Lodge a Caveat:

• Who may lodge: Any individual who believes they have a right to be heard in an application related to a suit or
proceeding can lodge a caveat.
• Connection to the case: While a caveat can be lodged by parties not directly involved in the case, they must
have a legitimate interest or connection to it. The case of Kattil Vayalil Parkkum Koiloth v. Mannil Paadikayil
Kadeesa Umma reinforced that caveats cannot be lodged by individuals with no meaningful association to the
proceedings.

3. Circumstances for Filing a Caveat:

• Ongoing lawsuits: When an application has been made or is expected to be made within a current legal
proceeding.
• Anticipated lawsuits: When it is anticipated that an application may be filed in the future in relation to a
potential lawsuit.

4. Process of Filing a Caveat:

• Notice of the caveat: The caveator must serve a notice to the caveatee by registered post, with
acknowledgment due.
• Notice to caveator: Once an application is filed, the court must notify the caveator.
• Copy of application: The caveatee must provide the caveator with a copy of the application and any supporting
documents at the caveator’s expense.
• Duration: The caveat is valid for 90 days from the date of lodging unless an application is made before the expiry
period. If an application is not made within this time frame, the caveat lapses.

5. Impact and Benefits:

• Protection of interests: Ensures that the caveator is informed and given the opportunity to contest or support
an application.
 • Judicial efficiency: Reduces unnecessary ex parte orders and enhances procedural fairness.
• Cost-effectiveness: Minimizes the need for multiple legal proceedings, thereby streamlining court processes.

1. Where Can a Caveat be Lodged?

• Jurisdiction: Caveats can be filed in Civil Courts with original jurisdiction, Appellate Courts, High Courts, and even
the Supreme Court.
• Types of Civil Courts: This includes Courts of Small Causes, Tribunals, Forums, and Commissions.
• Exclusivity to Civil Proceedings: According to the decision in Deepak Khosla v. Union of India & Ors., Section
148A applies solely to civil proceedings, meaning caveats cannot be lodged in criminal matters or under Article
226 of the Constitution of India (which pertains to writ petitions).

2. How to File a Caveat under CPC?

To properly file a caveat under Section 148A, follow these steps:

Preparation Stage:

• Draft the Caveat Petition: The petition should clearly state the caveator’s intent, the specifics of the anticipated
application, and the grounds for lodging the caveat.
• Affidavit: An affidavit supporting the caveat petition, signed by the caveator, is necessary.

Supporting Documents:

• Vakalatnama: If an advocate represents the caveator, include this document to authorize the advocate’s
representation.
• Impugned Order (if applicable): If relevant, attach a copy of the order related to the case.
• Proof of Service: Evidence that the caveat notice was served to all concerned parties, typically through
registered post or other accepted methods.

Submission:

• File the Caveat: Submit the petition, affidavit, Vakalatnama (if applicable), and proof of service to the court's
designated office.
• Court Fees: The fee for filing a caveat is nominal and usually less than INR 100, but it may vary depending on the
court.

By following these steps, a caveator ensures that they are aware of any proceedings affecting them and can present
their stance before the court if needed.

A caveat filed under Section 148A of the CPC serves as a protective measure for parties who expect to be involved in a
lawsuit or legal proceeding.

2. Notice of Caveat in CPC:

When a caveat is filed, the court is required to notify the caveator when an application is made. This ensures the
caveator is aware and can respond appropriately.
 • Applicant’s Obligation: Once the court notifies the caveator, the applicant (party filing the suit or appeal) must
provide the caveator with a copy of the application and any supporting documents. This is to be done at the
expense of the caveator.
• Consequences of Non-Compliance: If the caveator is not properly notified, any judgment or decree made by the
court may be considered invalid, emphasizing the necessity of adhering to the proper procedures for caveats.

3. Time Period of a Caveat:

• Initial Duration: A caveat remains in force for 90 days from the date it is lodged. This period ensures that the
caveator stays informed about any application made within this timeframe.
• Renewal of Caveat: If necessary, a fresh caveat can be filed after the initial 90-day period to maintain the right
to be notified and participate in legal proceedings.
• Pre-Judgment Filing: While caveats are typically filed after a judgment or order is made, in exceptional
circumstances, they may be lodged before the decision, particularly if there is a reasonable expectation that a
judgment or order is imminent.

Case: Deepak Khosla vs. Union of India & Others.

The Division Bench of the High Court emphasized that Section 148A of the Civil Procedure Code (CPC) is part of the civil
procedural framework and is specifically intended for civil suits handled by civil courts. In contrast, criminal cases are
governed by the Code of Criminal Procedure (CrPC), which does not contain any provisions for filing a caveat.

Key Points from the Case of Deepak Khosla vs. Union of India & Others:

• CPC vs. CrPC: The court noted that the CPC and CrPC are distinct legal codes with separate provisions tailored to
civil and criminal matters, respectively. The provision for caveats is explicitly included only in the CPC.
• No Caveat in Criminal Cases: The absence of caveat provisions in the CrPC means that filing a caveat is not a
viable option in criminal proceedings. Therefore, if an accused seeks an interim order or any other relief in a
criminal case, the caveat mechanism under the CPC cannot be used to oppose or counter that request.
• Legislative Intent: The ruling underscored the legislative intent of keeping civil and criminal procedures separate
and specific to their areas, highlighting that caveats are meant to protect parties in civil cases where suits and
applications are addressed.

Rights and Duties Under Section 148A CPC:

• Caveator's Role: The caveator must serve notice to the applicant who is expected to make the relevant
application, typically through registered post. This ensures the applicant is aware of the caveat and its
implications.
• Court's Duty: Once a caveat is lodged and notice served, the court must notify the caveator if an application
related to the caveat is filed within the next 90 days. This ensures the caveator has the right to be heard.
• Applicant's Responsibility: The applicant must also serve notice to the caveator and provide them with a copy of
the application and any related documents.

Case Law Insights:

• Smt. Gangamma vs. Sri G. Dayanandha (2017): In this case, the court found that the caveat was used as a
protective measure against potential interference with the property mentioned in the caveat petition, ultimately
leading to the dismissal of the defendant’s petition.
• Yaseen and 4 Others vs. Mahendra Yadav (2020): The court clarified that external factors like lockdowns should
not count against the 90-day period during which a caveat remains valid, acknowledging that disruptions can
affect the timeframe for caveat validity.

Conclusion:
Caveats are a crucial aspect of the CPC, allowing parties to be informed and heard before decisions are made in civil
cases. They ensure transparency and fairness, providing a mechanism for individuals or entities to protect their interests.
However, because the CrPC does not include provisions for caveats, they cannot be used in criminal cases. The
distinction between civil and criminal procedural laws is reinforced by the legislative framework and court rulings,
emphasizing the importance of applying the correct legal provisions based on the nature of the proceedings.

High Court of Judicature at ———– (Karnataka)

Caveat Petition No:

Mr/Ms ———-
Aged ——— years
Occupation ———-
Residing at ———— (Complete Address of the Caveator)

Vs

Mr/Ms —————
Aged ——— years
Occupation ———-
Residing at ———— (Complete Address of the Expected Caveatee/Appellant/Opponent)

CAVEAT APPLICATION

To,
The Hon’ble Chief Justice and His Companion Justices of the High Court of Judicature at ———– (Karnataka)

MOST RESPECTFULLY SHOWETH:

1. The Caveator’s Details: The Caveator, Mr/Ms ———-, aged ——— years, residing at the aforementioned
address, is filing this Caveat Petition to prevent any ex-parte orders being passed against him/her in connection
with the suit/case/application described below.
2. Details of the Opponent: The opponent/appellant/expected caveatee, Mr/Ms —————, aged ——— years,
residing at the aforementioned address, has initiated proceedings or is intending to initiate proceedings that
may adversely affect the Caveator.
3. Subject Matter: The subject matter concerning this Caveat is related to the Suit/Case/Application for recovery
orders involving (mention specific subject matter of the suit/case, e.g., recovery of property, financial claims,
etc.).
4. Service of Summons/Notices: The Caveator and the opponent have given their respective addresses for the
service of summons/notices as stated in the title clause of this petition.
5. Undertaking of Service: The Caveator undertakes to immediately serve a copy of this application upon the
opponent by registered post with acknowledgment and to file proof of such service at the earliest.
6. Request for Notification: The Caveator prays that any interim application filed by the opponent in the above-
mentioned suit/case be notified to the Caveator prior to the passing of any order, ensuring that the Caveator
has the opportunity to respond.
7. Prayer for Relief: The Caveator prays that this Hon’ble Court may be pleased to pass any orders it deems fit and
just in the interest of justice and fair play.

PRAYER:
It is most respectfully prayed that this Hon’ble Court may be pleased to:

• Grant the Caveator’s request to be notified of any interim applications and decisions made in the suit/case.
• Pass such further or other orders as may be just and proper in the facts and circumstances of the case.

PLACE:

DATE: –/–/–

COUNSEL FOR CAVEATOR

CAVEATOR

x. Special power of attorney

A Special Power of Attorney (SPA) is a legal document that grants an agent, known as an "attorney-in-fact," the
authority to act on behalf of the principal in specific and limited situations. Unlike a general power of attorney, which
grants broad authority to handle a variety of matters, a special power of attorney is tailored to give the agent specific
powers for particular tasks or transactions. This type of power of attorney is sometimes referred to as Limited Power of
Attorney (LPA) due to its narrowly defined scope.

Key Features of Special Power of Attorney

• Scope of Authority: The agent's powers are limited to the specific duties outlined in the SPA. For example, the
principal may authorize the agent to sell a particular piece of property, sign documents related to a specific
transaction, or handle certain financial matters but not others.
• Principal-Agent Relationship: The SPA is a binding agreement that formalizes the relationship between the
principal and the agent, ensuring the agent acts in the best interest of the principal within the defined limits.
• Selection of Agent: The principal must choose an agent who is trusted, capable, and possesses the skills
required to fulfill the duties assigned in the SPA.
• Clarity and Specificity: It is crucial for the principal to clearly outline the scope of the authority granted to the
agent in the SPA to avoid ambiguity and potential legal issues.

How Special Power of Attorney Works

The SPA is executed by the principal to allow the agent to act on their behalf for a defined task. It is important to note
that the agent's power is limited to the tasks explicitly mentioned in the document, and the agent is only authorized to
act within these confines. This ensures that the agent does not overstep the boundaries set by the principal.

For instance, if the principal is unable to attend a property sale due to being out of town, they may issue an SPA to a
trusted agent to complete the sale on their behalf. The agent would be authorized to sign the sales contract and transfer
the property title but would not be able to make other decisions, such as signing unrelated contracts or handling the
principal’s other properties.

Duties and Responsibilities of an Agent

The agent's role is fiduciary, meaning they owe specific duties to the principal, including:

• Duty of Diligence: The agent must act with care and competence when handling the principal's affairs.
• Duty to Inform: The agent is required to keep the principal informed about the status of the task or transaction.
 • Duty of Loyalty and Good Conduct: The agent must act in the best interest of the principal and avoid conflicts of
interest.
• Duty of Obedience: The agent must follow the instructions laid out in the SPA and cannot act beyond the scope
of their authority.

If the agent acts beyond their authorized scope or fails to fulfill their fiduciary duties, they can be held liable for any
harm or financial loss that results from their actions.

Potential Issues and Liability

• Breach of Duties: If the agent breaches any of their fiduciary duties, they can be held responsible for any
resulting damages to the principal.
• Third-Party Liability: If the agent acts within the authority granted by the SPA, they are not personally liable for
any harm caused by third parties; the liability rests with the principal.
• Sub-Agent Appointments: The principal may permit the agent to appoint a sub-agent to assist with their duties.
The primary agent remains responsible for ensuring that the sub-agent acts in accordance with the SPA.

Types of Special Powers of Attorney

Special powers of attorney come in different forms to meet the varying needs of principals. These types of powers
outline the agent's specific roles and limitations and are tailored to particular circumstances. Here are the main types:

1. Limited Power of Attorney

o This type of power of attorney is limited to specific acts or transactions and is valid for a defined period.
It allows the agent to act on behalf of the principal for one or more specific transactions, such as selling
a property or signing a contract. Once the transaction is completed or the specific time period expires,
the limited power of attorney automatically ends. It also ceases if the principal becomes incapacitated,
depending on the terms of the agreement.
2. General Power of Attorney
o A general power of attorney gives the agent the authority to act on behalf of the principal in all matters,
covering both financial and legal affairs. This type does not have a set expiration and remains in effect
until the principal's death or revocation. It becomes particularly important when the principal is unable
to manage their affairs due to illness or incapacity.
3. Springing Power of Attorney
o A springing power of attorney is designed to become effective only when a specific event occurs,
typically the incapacitation of the principal. This type provides for a delay in activation, ensuring the
agent only gains power when it is needed. It is beneficial for situations where the principal wants to
maintain control until an unforeseen event triggers the agent's authority.
4. Medical Power of Attorney
o This power of attorney grants the agent the ability to make medical decisions on behalf of the principal
if they become unable to do so themselves. The medical power of attorney is activated upon the
confirmation of incapacity by a physician. It is particularly crucial for managing health-related decisions
and ensuring that medical care aligns with the principal's wishes.

Requirements When Drafting a Special Power of Attorney

Drafting a special power of attorney involves several important steps to ensure it is legally binding and valid:

• Detailed Identification: Both the principal and the agent should provide clear identification, such as full names
and addresses. The document should include details that specifically define the agent's powers and the
limitations of those powers.
• Explicit Authorizations: The document must outline in detail the specific acts or transactions the agent is
authorized to perform. This helps avoid confusion and potential misuse of power.
 • Time Frames: If applicable, the special power of attorney should specify the period during which the power is
effective.
• Notarization: If the special power of attorney is signed outside the principal’s home country, it typically requires
notarization. This step ensures the document's authenticity and that it was signed voluntarily without coercion.
• Proof of Identification: The principal should provide valid proof of identity, such as a government-issued ID that
includes their photograph and signature, to substantiate the document’s legitimacy.
• Witness Signatures: The document must be signed in the presence of witnesses who can attest to the principal’s
intent and understanding of the document. Witnesses also sign the document to affirm its validity.

These measures help ensure that the special power of attorney is legally enforceable and that it accurately represents
the principal’s intent and interests.

General Power of Attorney vs. Special Power of Attorney

General Power of Attorney (GPOA) and Special Power of Attorney (SPOA) are both legal documents used to grant
authority to an agent to act on behalf of the principal, but they differ in scope and application.

1. Scope of Authority

• General Power of Attorney: Grants the agent broad authority to make a wide range of legal and financial
decisions on behalf of the principal. This may include managing business and personal financial transactions,
handling real estate matters, making investments, paying bills, purchasing life insurance, and filing taxes. It is
commonly used when a principal will be unable to manage their affairs for an extended period, such as when
traveling abroad or dealing with a long-term illness.
• Special Power of Attorney: Limits the agent’s powers to specific tasks or transactions outlined in the document.
For example, the principal may grant an agent the authority to handle the sale of a specific property or manage
a particular financial account. The authority is restricted to what is clearly stated in the agreement, and it expires
once the specified task is completed or the document’s term ends.

2. Duration and Activation

• General Power of Attorney: Becomes effective immediately upon creation and remains in effect until the
principal revokes it, becomes incapacitated (unless it is durable), or dies. A GPOA can be used for both general
and enduring purposes.
• Special Power of Attorney: Typically activated for a specific situation and terminates once that situation is
resolved. A SPOA can be made durable, which means it continues to be effective even if the principal becomes
incapacitated. However, without being designated as durable, the SPOA becomes void if the principal is
incapacitated or dies.

3. Legal Considerations and Requirements

• Durable Power of Attorney: Both GPOA and SPOA can be made durable by adding language that specifies that
the authority remains in effect if the principal becomes incapacitated. If a principal does not have a durable
power of attorney and becomes incapacitated without having an agent in place, a court will appoint a guardian
or conservator.
• Notarization: Depending on state law, both GPOA and SPOA may require notarization to be legally binding. For
example, in certain jurisdictions, notarization is necessary for real estate transactions, while it may be optional
for other types of powers.

4. Risks and Safeguards

 • Risks: Entrusting someone with a power of attorney, whether general or special, carries risks. An agent who acts
dishonestly or negligently can cause significant harm to the principal, including financial losses or damage to
property. The principal should select an agent who is trustworthy and competent.
• Safeguards: To mitigate risks, the principal should clearly outline the scope of authority and consider adding
oversight measures such as regular reporting from the agent or appointing more than one agent to act jointly or
in succession.

5. Termination and Revocation

• General and Special Power of Attorney: Both types of POA can be terminated by the principal at any time as
long as the principal is mentally competent. Termination can be done by issuing a written revocation and
notifying the agent and any relevant third parties.
• Death of the Principal: Regardless of the type, all powers of attorney become void upon the principal's death. At
that point, the will and estate laws take precedence, and the executor named in the will manages the deceased's
affairs.

How to Obtain a Power of Attorney

1. Choose the Type: Decide whether a general or special power of attorney best suits your needs, considering the
scope of authority and the duration of the arrangement.
2. Draft the Document: Use templates available online or consult with an attorney to draft the document. Ensure
it includes the agent’s details, specific powers granted, and any conditions or limitations.
3. Sign and Notarize: Depending on the state, the POA may need to be signed in the presence of witnesses or
notarized to be legally enforceable.
4. Distribute Copies: Keep the original in a secure location and distribute copies to the agent, financial institutions,
legal advisors, and any other relevant parties.

Uses of Special Power of Attorney in India

SPAs are commonly used for specific transactions and legal purposes to provide a streamlined approach when the
principal is unavailable or unable to manage certain activities:

1. Real Estate Transactions: An SPA is often used for buying or selling property, allowing the agent to sign deeds, make
payments, and represent the principal before authorities, thus simplifying property dealings.

2. Financial Matters: SPAs enable agents to perform essential financial transactions such as managing bank accounts,
paying bills, and making investments on behalf of the principal, especially when the principal is overseas or
incapacitated.

3. Legal Proceedings: Agents can represent the principal in legal matters, participate in court proceedings, settle
disputes, or make decisions related to litigation or arbitration as outlined in the SPA.

4. Business Operations: In business settings, SPAs empower agents to manage certain business activities, negotiate
contracts, and handle other company affairs that require the principal’s presence.

Legal Implications and Considerations

1. Authority and Limitations: The agent's authority is strictly confined to the powers specified in the SPA. Actions taken
outside these boundaries may not be legally enforceable.

2. Revocation: The principal has the right to revoke or amend the SPA anytime, provided they are mentally competent.
Written notice of revocation must be sent to the agent and any other relevant parties.
3. Liability: Agents must act with due diligence and good faith. If they misuse the granted powers or breach their duties,
they can be held legally liable for any resulting losses.

4. Registration: Certain SPAs may need to be registered, especially when dealing with property transactions or other
high-value agreements. Registration with the appropriate authorities ensures that the SPA is legally enforceable in
specific jurisdictions.

Conclusion

A Special Power of Attorney in India is an essential legal tool that allows individuals and businesses to manage specific
affairs effectively, especially when the principal is unavailable or incapacitated. By clearly defining the scope of authority
and responsibilities, an SPA helps ensure that the agent acts in the principal’s best interest and within the set
parameters.

SPECIAL POWER OF ATTORNEY IN FAVOUR OF TWO PERSONS TO EXECUTE SALE DEED

KNOW ALL MEN BY THESE PRESENTS, that I, KM, aged about (age) years, s/o BL, residing at (complete address), do
hereby appoint Mr. RK, s/o Mr. VK, residing at (complete address), and Mr. RB, s/o GB, residing at (complete address),
and each of them individually, as my true and lawful Attorneys to perform the following acts and deeds for and on my
behalf:

1. Execution of Sale Deed: To execute the sale deed for my house No. (house number) in favor of Mr. DC, s/o Mr.
HC, residing at (complete address), on a sale consideration of Rs. 10,00,000/- (Rupees ten lakhs only).
2. Receipt of Sale Amount: To receive the sale amount from Mr. DC and issue a proper receipt for the same.
3. Deposit of Sale Amount: To deposit the received sale amount into my current account No. (account number) at
(name of bank), (branch name).
4. Delivery of Possession: To deliver vacant possession of the said house to Mr. DC and carry out all other
necessary acts related to this sale deed.
5. Binding Conduct: That the acts performed by my said Attorneys shall be binding on me and shall be deemed to
have been carried out by me.

IN WITNESS WHEREOF, I have executed this Special Power of Attorney on this (day) of (month), (year), in the presence
of the following witnesses:

Witnesses:

1.

(Signature of Witness 1)

2.

(Signature of Witness 2)

SIGNED AND DELIVERED BY,

(Signature of Principal)
KM
 xi. Reference to Arbitration and Deed of Arbitration

What is meant by the term 'arbitration agreement'?

An arbitration agreement is defined under Section 7 of the Arbitration and Conciliation Act, 1996 (the Act). According to
Section 7(1), an arbitration agreement is an agreement between the parties to submit disputes to arbitration, which may
have arisen or may arise in the future, in respect of a defined legal relationship, whether contractual or not.

Forms of Arbitration Agreement:

• Section 7(2) states that an arbitration agreement can be part of a contract as an arbitration clause or as a
separate document.
• An arbitration agreement must be in writing, as detailed in Section 7(3). It can be considered in writing if:
o It is signed by the parties.
o It involves an exchange of communication (e.g., letters, emails, or other forms of telecommunication)
that records the agreement.
o It is evident through an exchange of statements of claim and defense where one party alleges the
existence of an agreement and the other does not deny it (Section 7(4)).
• Section 7(5) clarifies that if a contract refers to a document containing an arbitration clause, that clause
becomes part of the contract if the reference is in writing.

Essential Characteristics and Requirements

1. Binding Nature of the Agreement: An arbitration agreement is as binding as any other agreement unless affected by
factors such as fraud, coercion, or undue influence. It must be in writing, as oral arbitration agreements are not
recognized under this section.

2. Competency of Parties: The parties involved must have the legal capacity to contract. If a party lacks the capacity,
such as being a minor or legally incapacitated, the arbitration agreement may be invalid. Under Section 34(2)(i), an
arbitral award can be set aside if a party was under incapacity at the time the agreement was made.

3. No Prescribed Form: There is no specific form required for an arbitration agreement. It can be:

• A single document signed by both parties.

• Two separate documents where one party signs the main terms, and the other acknowledges or accepts them.
• An unsigned document that the parties agree to, either verbally or by separate acceptance.

Arbitration agreements can be express (clearly stated) or implied through conduct or referential incorporation (e.g., by
referencing standard clauses in a related document) as affirmed in Atlas Export Industries v. Kotak and Co..

Essential Elements of an Arbitration Agreement

Key Supreme Court Decisions:

1. Bihar State Mineral Development Corporation v. Encon Builder Pvt. Ltd., 2003 (3) Arb LR 133 (SC) outlined four
essential elements:
o There must be a current or anticipated dispute related to some matter.
o The parties should intend to resolve this dispute through a private tribunal.
o The parties must agree, in writing, to be bound by the tribunal's decision.
 o The parties must be ad idem (agree on the same thing).
2. K.K. Modi v. K.N. Modi, established additional attributes:
o The agreement must ensure that the decision of the tribunal is binding on the parties.
o The tribunal's jurisdiction must derive from the consent of the parties, a court order, or a relevant
statute, which must clearly indicate arbitration as the process.
o The agreement should allow for the tribunal to determine substantive rights.
o The tribunal must conduct proceedings impartially and fairly towards all parties.
o The agreement must be enforceable by law.
o The agreement should contemplate that the tribunal will address disputes formulated when the
reference is made.

These principles highlight the comprehensive nature of arbitration agreements in Indian law, emphasizing clear consent,
fairness, and written documentation for validity and enforcement.

Time-bar Clause in an Arbitration Agreement

A time-bar clause in an arbitration agreement stipulates that any claims subject to the clause shall be barred unless
arbitration is initiated within a specified period. This clause, also known as the Atlantic Shipping clause due to the
landmark case Atlantic Shipping and Trading Company v. Louis Dreyfus and Company (1922) 2 AC 250, holds that it is
lawful to set a time limit for commencing arbitration. If this timeframe is not met, the claim is considered barred.

Importantly, a time-bar clause does not violate Section 28 of the Indian Contract Act, which governs contracts that
restrict the period of limitation for enforcing rights. This clause, instead, extinguishes the right itself after the set period
lapses. Courts generally interpret time-bar clauses strictly against the party seeking to enforce them. However, if
enforcing the clause would result in undue hardship, courts have the discretion to extend the period of limitation to
ensure fairness.

Scott v. Avery Clause

The Scott v. Avery clause originated from the case Scott v. Avery (1856) 5 HL Cas 811, which involved a marine insurance
policy stating that the insured could not initiate any legal action until an arbitrator had decided on the dispute. The
House of Lords upheld the clause, establishing that while parties cannot exclude the jurisdiction of the courts by
contract, they can agree that no right of action arises until an arbitrator renders an award. This type of clause is known
as a Scott v. Avery clause.

The Supreme Court in Vulcan Insurance Co. Ltd. v. Maharaj Singh (AIR 1976 SC 287) reiterated the validity of Scott v.
Avery clauses, noting that these clauses are legally enforceable and common in arbitration agreements. The clause
effectively ensures that arbitration is the primary means for resolving disputes before pursuing legal action, reinforcing
the role of arbitration as a prerequisite to court proceedings.

Construction of the Arbitration Agreement

Principles for construing an arbitration agreement are outlined in Halsbury's Laws of England and include the following:

1. Plain and Ordinary Meaning: The language of the arbitration agreement should be interpreted in its plain,
ordinary, and popular sense unless a particular meaning has been established by custom or practice.
2. Avoiding Absurd Conclusions: The construction should avoid interpretations that would lead to absurd or
unreasonable outcomes, especially in commercial contracts. The objective is to give effect to the true intent of
the parties as expressed in the agreement, maintaining fairness and practicality.

These principles ensure that arbitration agreements are interpreted in a way that respects the parties' intentions while
upholding the contractual obligations and procedural fairness.
Power of Judicial Authorities to Refer Parties to Arbitration

Section 8 of the Arbitration and Conciliation Act, 1996 outlines the power of judicial authorities to refer parties to
arbitration when an action is brought before them involving a matter that falls under an arbitration agreement. This
provision emphasizes the Act's objective of promoting private resolution of disputes, preventing litigation in courts for
matters covered by an arbitration agreement.

Key Provisions of Section 8

1. Application for Referral: Section 8(1) mandates that a judicial authority must refer the parties to arbitration if a
party applies for it, provided the application is made before the submission of the first statement on the
substance of the dispute. The application must be accompanied by the original arbitration agreement or a
certified copy.
2. Judicial Authority’s Role: The judicial authority can only consider whether the matter brought before it falls
under an arbitration agreement and whether the arbitration agreement exists and is valid. The actual
jurisdiction of the arbitral tribunal to decide on the dispute's merits, including the validity of the arbitration
agreement, falls solely within the tribunal's purview.
3. Simultaneous Proceedings: Section 8(3) allows for the continuation of arbitration proceedings even if an
application for referral is pending before the judicial authority. This means arbitration can proceed concurrently
with court proceedings until the court decides on the referral application.

Conditions for Referral Under Section 8

The Supreme Court in P. Anand Gajapati Raju v. P.V.G. Raju (2000) laid down conditions for a stay of the suit and
referral to arbitration:

1. There must be an arbitration agreement.

2. A party to the agreement must bring an action in court against another party.
3. The subject matter of the action must align with the arbitration agreement.
4. The application to refer to arbitration must be made before the first statement on the dispute is submitted.

Mandatory Nature: If these conditions are met, the court is obliged to refer the matter to arbitration and declare the
suit non-maintainable as per Hindustan Petroleum Corpn. Ltd v. Pinkcity Midway Petroleums (2003).

Judicial Authority Interpretation

The term "judicial authority" is not specifically defined in the Act but has been interpreted by the Supreme Court in
S.B.P. and Co. v. Patel Engineering Ltd (2005) to include courts and other bodies exercising judicial power, such as
consumer forums and specialized tribunals. In Managing Committee, Senior Secondary School v. Vijay Kumar (2005), the
Supreme Court confirmed that tribunals established under certain statutes also qualify as judicial authorities.

Jurisdiction on the Existence of the Agreement: The judicial authority can examine whether an arbitration agreement
exists and covers the subject matter of the dispute. However, questions related to the validity or jurisdiction of the
arbitral tribunal are to be resolved by the tribunal itself.

Dual Proceedings and Arbitration Continuation

Section 8(3) states that arbitration can proceed simultaneously with the judicial authority's examination of the referral
application. This dual process allows arbitration to continue even when a judicial authority is considering whether to
refer the dispute to arbitration. The pendency of the judicial review does not impede the arbitral tribunal from making
an award.

Conclusion
Section 8 ensures that courts uphold the integrity of arbitration agreements and prevent judicial intervention in matters
explicitly covered by them unless necessary for the effective conduct of arbitration. The power to refer cases to
arbitration supports the overarching objective of the Act — promoting quicker, private resolution of disputes.

Power of Courts to Grant Interim Measures in Arbitration Proceedings

Section 9 of the Arbitration and Conciliation Act, 1996 provides for the power of courts to grant interim measures of
protection in the context of arbitration. This section is essential for ensuring that the arbitration process is effective and
protected from actions that could hinder its fair conduct or the enforcement of an eventual award.

Scope of Interim Measures Under Section 9

1. Timing and Application: Section 9 allows a party to apply to a court for interim measures before or during the
arbitral proceedings or even after the making of the arbitral award but before its enforcement. This power is
intended to secure the preservation of assets, protection of rights, or other actions that can maintain the status
quo until arbitration concludes.
2. Nature of Interim Measures:
o Preservation, custody, or sale of goods (Section 9(i)): The court can order protective measures to
prevent damage or disposal of goods that are subject to the arbitration.
o Securing the amount in dispute (Section 9(ii)): The court can attach property to secure the payment of
an amount that is contested in arbitration.
o Detention, preservation, or inspection of property (Section 9(iii)): This allows the court to prevent
property from being altered or destroyed and ensures that evidence related to the arbitration can be
preserved.
o Interim injunctions or appointment of a receiver (Section 9(iv)): The court may issue injunctions or
appoint a receiver to protect the property or manage assets involved in the arbitration.
o Other just and convenient measures (Section 9(v)): The court may grant any other interim measure it
deems necessary to support the arbitration.

Judicial Intervention and Mandatory Nature

• Exception to Judicial Non-Intervention: Section 9, alongside Section 8, is an exception to Section 5 of the Act,
which generally prohibits judicial intervention in matters governed by Part I of the Act. Sections 8 and 9
specifically authorize such intervention when necessary to facilitate effective arbitration.
• Mandatory Power: The court’s power under Section 9 is mandatory and cannot be waived by agreement
between parties. This is crucial for protecting the arbitration process from potential abuse or actions that could
undermine its outcome.

Court Powers and Procedural References

• Power Parallel to Civil Proceedings: Section 9 grants the court the same powers it holds in ordinary civil
proceedings, drawing from provisions like the Code of Civil Procedure (CPC) and the Indian Evidence Act. This
ensures that the court can summon witnesses, order document production, and employ other procedural
measures as necessary.
• Principles for Interim Relief: When considering interim measures, courts follow similar principles as those for
temporary injunctions in civil suits. This includes:
o Establishing a prima facie case for the applicant.
o Evaluating the balance of convenience to see which party would suffer more if the injunction is granted
or denied.
o Assessing whether the applicant would suffer irreparable harm without the interim relief.

Specific Provisions and Principles

 1. Preservation and Protection of Goods:
o The term "goods" in Section 9 should align with Section 2(7) of the Sale of Goods Act, 1930, which
defines it broadly to include movable property.
o Courts can order the preservation or sale of perishable goods, securing the proceeds to prevent loss
during the arbitration.
2. Securing Amounts in Dispute:
o Section 9(ii)(b) allows the court to attach property as a measure to secure an amount in dispute in the
arbitration. This step is essential to prevent the dissipation of assets that could delay or obstruct
enforcement of an arbitral award.
o Courts need sufficient evidence to ensure that without this intervention, there is a real risk of defeating
or delaying the award's execution.
3. Detention, Preservation, or Inspection of Property:
o Section 9(ii)(c) empowers courts to issue orders preventing the alteration or disposal of property that
could be pivotal in the arbitration. This could include directing inspections or allowing experts to assess
the property to preserve evidence for future proceedings.
o Courts may authorize third parties to enter premises and conduct necessary activities to gather
information.
4. Appointment of Receivers:
o Under Section 9(ii)(d), courts can appoint a receiver to manage or protect property during the
arbitration process. The receiver must ensure the property is safeguarded and preserved until
arbitration concludes.
o The process for appointing receivers is detailed in Order 40 of the CPC.

Case Law Illustrations

• Sundaram Finance Ltd. v. NEPC India (1999): Confirmed that applications for interim measures under Section 9
could be made even before arbitration proceedings commence.
• Rashmi Cement Ltd. v. Trafigura Becheer B.V. (2011): Held that interim reliefs must adhere to established
principles and the CPC. An attachment before an award was deemed illegal in this case, as it was not justifiable
under the circumstances.

Conclusion

Section 9 of the Arbitration and Conciliation Act, 1996 plays a pivotal role in supporting arbitration by empowering
courts to grant interim measures. This ensures that the arbitral process is protected from actions that could disrupt it,
facilitating a fair and effective resolution of disputes. The powers extend to safeguarding property, securing amounts in
dispute, and appointing receivers, among other actions, to prevent undue harm and to support the enforcement of an
arbitral award.

FORM OF AGREEMENT FOR REFERENCE TO TWO ARBITRATORS

This Deed of Agreement made on this (day) of (month), 2000, between:

1. SN, aged about (age) years, residing at (complete address), hereinafter called the 1st party.
2. PK, aged about (age) years, s/o Mr. GC, residing at (complete address), hereinafter called the 2nd party.
3. RK, aged about 25 years, s/o Mr. GC, residing at (complete address), hereinafter called the 3rd party.

WHEREAS the first, second, and third parties have been carrying on a business of sale and purchase of electrical goods at
(location) in partnership under the name and style of (partnership name) since (date).

AND WHEREAS all three parties invested equal capital at the start of the business.
AND WHEREAS all three parties have equal shares of profit and loss in the partnership business.

AND WHEREAS disputes have arisen between the parties, and it has become impossible to carry on the business under
the partnership.

AND WHEREAS the parties have agreed to refer the matters hereunder to two arbitrators, namely Mr. PK, s/o Mr. RP,
residing at (complete address), and Mr. GL, s/o Mr. SL, residing at (complete address), for their decision.

NOW, THIS DEED OF ARBITRATION WITNESSETH AS UNDER:

1. Preparation of Profit and Loss Account: The profit and loss account of the partnership business shall be
prepared under the supervision of the arbitrators aforesaid.
2. Settlement of Liabilities: The liabilities for the payment of dues to creditors by the parties shall be settled by the
arbitrators upon the settlement of the accounts.
3. Date of Dissolution: The arbitrators shall decide the date on which the partnership firm shall be deemed to be
dissolved.
4. Time for Decision: The arbitrators shall decide the matter within four months. If the matter is not decided within
the four-month period, the time for making the award shall be extended by mutual consent of the parties.
5. Appointment of Umpire: The arbitrators are entitled to appoint an umpire, as required, during the period in
which they are to make the arbitration award.
6. Finality of Decision: If the arbitrators agree among themselves on the matter of the dispute, their award shall be
final. If they differ, the umpire shall decide the matter, and the umpire’s award shall be binding on the parties.
7. Notice and Evidence: The arbitrators shall issue notices to the parties for their appearance to clarify the dispute
and produce evidence as deemed necessary. If any party fails to appear, the arbitrators shall proceed to decide
the matter ex-parte.
8. Binding Effect: This deed of agreement shall be binding on the legal representatives, assignees, and heirs of the
parties, in case of the death of any party.
9. Appointment of Accountant: The arbitrators may appoint an accountant for the finalization of the accounts, and
shall fix the remuneration of the accountant, which shall be included in the costs of the arbitrator’s fees.
10. Application for Decree: Upon the arbitration award, if any sum is due from any party, the party in whose favor
the award is granted may apply to the Court for a decree upon the award and its extension.
11. Governing Law: Except for the matters provided in this agreement, the provisions of the Arbitration Act shall
apply.
12. Discretion of Costs: It shall be at the discretion of the arbitrators to fix the cost of this reference.

The abovenamed parties do hereby agree to all the terms and conditions stated above without any duress, coercion,
or undue influence and after fully understanding the terms of this deed of arbitration, and bind ourselves, our heirs,
assignees, and legal representatives, and hereby put our hands on this (day) of (month), 2000 in the presence of the
following witnesses:

Witnesses:

1. Name: _____________________
Signature: _____________________
Address: _____________________

1st Party: SN

2. Name: _____________________
Signature: _____________________
Address: _____________________

2nd Party: PK
 3. Name: _____________________
Signature: _____________________
Address: _____________________

3rd Party: RK

xii. Notice for Specific Performance of Contract

The Specific Relief Act, 1963 (SRA) was enacted to provide legal remedies for violations of civil or contractual rights. One
of the key forms of relief under this act is the specific performance of contracts, an equitable remedy available when the
usual remedy of damages is insufficient.

Specific Performance of Contracts

Specific performance is a court order requiring a party to fulfill its contractual obligations. This remedy is typically
applied in cases where the breach involves unique or irreplaceable items, such as real estate, making monetary damages
inadequate. The SRA outlines the conditions under which specific performance can be ordered, balancing equity and
fairness.

Mandatory Nature Post-2018 Amendment

Until 2018, specific performance was a discretionary remedy, meaning courts had the power to decide whether to grant
it based on the circumstances of the case. However, with the 2018 amendment, specific performance of contracts
became a mandatory remedy under certain conditions, emphasizing its importance in upholding contractual rights and
obligations.

Judicial Definitions:

1. Fry: He describes specific performance as "the actual execution of a contract according to its stipulation and
terms," contrasting it with seeking damages or compensation for non-execution.
2. Pomeroy: Defines it as the "exact fulfillment of the obligation undertaken by a party, involving the act or
omission agreed upon in the contract."
3. Halsbury: Defines it as "an equitable relief given by the court, resulting in a judgment that the defendant must
perform the contract as stipulated."

Legal Framework

Indian Contract Act, 1872:

• Section 2(b): Defines a contract as an "agreement enforceable by law."

• Section 10: Specifies that a contract must be made by parties competent to contract, with free consent, lawful
consideration, and a lawful object. If these conditions are not met, the contract is void and cannot be specifically
enforced.

Specific Relief Act, 1963:

 • Section 9: Grants the defendant the right to use any defense available under the law relating to contracts. This
means the defendant can rely on defences like incapacity, fraud, mistake, coercion, or undue influence, as
provided by the Indian Contract Act, 1872.
• Section 10: Emphasizes that specific performance is enforceable by the court subject to other provisions in the
Act.
• Section 12-16: Outlines conditions and exceptions for the specific performance of contracts, including provisions
where specific performance is not permitted (e.g., contracts dependent on personal qualifications or those that
are determinable).

Categories of Contracts for Specific Performance

1. Contracts That Can Be Specifically Enforced:

o Contracts related to the transfer of immovable property, where damages are often deemed inadequate.
o Contracts involving unique or rare items, where substituting performance would not be satisfactory.
2. Contracts That Cannot Be Specifically Enforced:
o Contracts that are void due to minor participation, lack of lawful consideration, or agreements that are
not enforceable by law.
o Contracts involving personal services, where performance cannot be supervised by the court or is
dependent on the personal qualities of the parties.
o Determinable contracts or contracts that require continuous supervision or performance.

Legal Precedents and Applications

• Ameer Mohd v. Barkat Ali (2002): The court reinforced that if a party fails to discharge their contractual
obligation, the aggrieved party has the right to demand specific performance or seek damages.
• Bishandayal and Sons v. State of Orissa (2001): The Supreme Court held that a government contract not
meeting constitutional requirements (e.g., Article 299) cannot be specifically enforced.

Conditions for Specific Performance

• Readiness and Willingness: The party seeking specific performance must demonstrate that they were always
ready and willing to perform their obligations under the contract.
• Defences Available: The defendant can challenge the suit with any defence available under contract law, such as
fraud, undue influence, or incapacity.

Conclusion

Specific performance is an equitable remedy that ensures a party's contractual obligations are met as agreed. It is
available for contracts that meet the necessary conditions set out by the Specific Relief Act, 1963, and is subject to
limitations defined by the Indian Contract Act, 1872. The requirement of readiness and willingness from the plaintiff
ensures that only those genuinely prepared to perform can seek this remedy.

Legal Provisions Under the SRA for Specific Performance

Sections 10 to 14A and Section 16 of the SRA deal with various aspects of specific performance:

Section 10 - General Provision for Specific Performance

• Mandatory Performance: Section 10 states that specific performance of a contract shall be enforced by the
court, subject to conditions outlined in sections 11(2), 14, and 16.
 • Equity and Fairness: The provision emphasizes that specific performance is subject to equitable principles,
requiring parties to demonstrate fairness and readiness to perform their obligations.

Section 12 - Specific Performance of Part of a Contract

Section 12 provides guidelines for situations where only a part of a contract may be enforceable:

1. General Rule:
o The court shall not direct specific performance of a part of a contract unless specific conditions are
met.
2. Exceptions:
o Clause (2): If a party is unable to perform the entire contract, but the unperformed portion is minor and
can be compensated monetarily, the court may order the specific performance of the partial contract
and award monetary compensation for the deficiency.
o Clause (3):
▪ Sub-clause (a): If the unperformed part is significant but can be compensated with money, the
court may order specific performance of the performable part, provided the other party pays
the agreed consideration, reduced by the value of the unperformed portion.
▪ Sub-clause (b): If the unperformed part cannot be compensated with money, the court may
direct specific performance of the performable part only if the other party has paid the full
consideration without abatement and waives all claims for the unperformed part.
o Clause (4): If a part of the contract, which can be separately and justly performed, exists independently
of another part that cannot be performed, the court may order the specific performance of the former
part.

Key Case Law: B. Santoshamma v. D. Sarala (2009)

The Supreme Court ruled in B. Santoshamma v. D. Sarala that under Section 12, a party in default can be directed to
perform the portion of the contract they can fulfill, provided the other party pays the full consideration (adjusted for the
unperformed portion) and waives claims for deficiencies or damages.

Exceptions to Specific Performance of Contracts

The Specific Relief Act, 1963 (SRA) sets out several exceptions to the general rule that specific performance can be
enforced by the courts. These exceptions are detailed in Sections 11, 14, and 16, ensuring that specific performance is
only granted under appropriate circumstances and that parties do not misuse the remedy.

Section 11 - Contracts Connected with Trusts

1. Enforceability:
o Subsection (1): Specific performance of a contract will be enforced when the contract is part of the
performance of a trust. This ensures that trusts can be upheld, aligning with the principles of equity and
fairness.
o Subsection (2): Contracts made by a trustee that exceed their powers or violate the terms of the trust
are unenforceable. This prevents trustees from acting beyond their authority or in a manner
inconsistent with their fiduciary duties.
2. Limitation Period:
o Article 54 of the Limitation Act, 1963 provides the time frame for claiming relief under this provision.
The limitation period is three years, starting from the time fixed for completing the sale or, if the title is
accepted after that period, the date of acceptance.

Section 14 - Contracts Not Specifically Enforceable

Section 14 outlines types of contracts that are not subject to specific performance:

1. Contracts with Substituted Performance (Section 20):

o Contracts where the non-performing party has already provided a substituted performance cannot be
specifically enforced. Substituted performance refers to situations where the aggrieved party hires a
third party or performs the contract themselves and seeks to recover expenses and damages from the
defaulting party.
2. Continuous Duty Contracts:
o Contracts that require continuous duties, which the court cannot supervise effectively, are not
enforceable. This is because the enforcement would require continuous judicial oversight, which is
impractical.
3. Personal Qualification Contracts:
o Contracts dependent on the personal qualifications of the parties, such as specific skills or attributes,
cannot be specifically enforced. The court cannot compel a person to perform in a way that is uniquely
tailored to their characteristics.
4. Determinable Contracts:
o Contracts that are inherently determinable, i.e., they are not intended to create a long-term obligation
and can be terminated by either party, cannot be specifically enforced. This ensures that parties cannot
be bound to perform contracts meant for temporary or variable relationships.

Section 16 - Personal Bars to Relief

Section 16 establishes bars to obtaining specific performance:

1. Substituted Performance:
o A party who has already obtained substituted performance of the contract under Section 20 cannot
claim specific performance.
2. Incapacity or Misconduct:
o Specific performance cannot be enforced for a person who:
▪ Becomes incapable of performing, violates essential terms, commits fraud, or acts in a way that
subverts the intended relationship of the contract.
▪ Fails to prove that they have performed or have been consistently ready and willing to perform
their part of the contract, excluding terms prevented or waived by the defendant.
3. Explanation for Readiness and Willingness:
o Clause (c) requires the plaintiff to demonstrate that they were ready and willing to perform their
obligations as per the contract, barring terms prevented or waived by the defendant.
o Sub-clause (i) clarifies that in cases involving money, the plaintiff is not required to tender or deposit the
money unless directed by the court.
o Sub-clause (ii) emphasizes that readiness and willingness must be proven based on the contract's true
interpretation.

Readiness and Willingness in the Context of Specific Performance

In the context of specific performance of contracts, the concepts of readiness and willingness are essential to
determine if a party is entitled to this equitable relief. Both elements must be proven to seek specific performance, as
established by the courts in various judgments under the Specific Relief Act, 1963 (SRA).

Definitions and Distinction

• Willingness: This is primarily a mental element. It signifies that the party is prepared and intends to fulfill their
obligations as per the contract. Willingness indicates the party’s intention to perform and shows that they are
not hesitant or indifferent to fulfilling their contractual duties.
 • Readiness: This refers to the practical ability or capacity to perform the contract. It involves taking steps that
show the party is prepared to perform their part when required. Readiness implies that the party not only
intends to perform but has the necessary resources, such as financial capability, to do so.

The Supreme Court has emphasized the distinction between these two concepts in the case of His Holiness Acharya
Swami Ganesh Dassji v. Sita Ram Thapar (1996). The judgment highlighted that:

• Readiness means having the ability or capacity to perform the contract. This includes financial capability,
possession of assets, or any other necessary resources.
• Willingness, on the other hand, is shown through the conduct of the party and indicates the genuine intent to
perform. Courts scrutinize the party's actions and behavior to assess their willingness.

Application of Readiness and Willingness

• Financial Capacity: A party must demonstrate they have the financial means to make payments or fulfill their
part of the contract. In His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar, the Supreme Court
noted that readiness encompasses the plaintiff’s financial position, which indicates their ability to fulfill the
contract terms.
• Conduct and Actions: To prove willingness, courts look at the party’s behavior leading up to the breach. For
example, if the party has made repeated attempts to fulfill the contract or has shown a proactive approach, it
supports their claim of willingness.

Conclusion

The readiness and willingness standard is fundamental for a party to succeed in obtaining a decree for specific
performance. Readiness involves the practical ability to perform, while willingness focuses on the intention to perform.
The Supreme Court's interpretation in His Holiness Acharya Swami Ganesh Dassji v. Sita Ram Thapar underlined the
importance of distinguishing between the two, ensuring that the remedy of specific performance is granted only to
parties who are genuinely prepared and committed to fulfilling their contractual obligations.

LEGAL NOTICE FORMAT: VACATING THE PROPERTY GIVEN ON LEASE (TENANT EVICTION)

Ref. No. _______________

Dated: ____________, 20

REGD. A.D.

SUB.: LEGAL NOTICE

To,
[Name of Tenant]
[Complete Address of Tenant]

Dear Sir/Madam,

Pursuant to the instructions from and on behalf of my client, [Name of Landlord], resident of [Complete Address of
Landlord], I do hereby serve you with the following Legal Notice:
 1. That the lease deed dated [Date of Lease Deed] made between my client of the ONE PART and you on the
OTHER PART, concerning premises No. [Premises Address] (hereinafter referred to as the demised premises).
2. That the lease deed has expired by efflux of time on the [Date].
3. I hereby call upon you to quit, vacate, and deliver quiet and peaceful possession of the demised premises on or
before the [Date], failing which my client will be constrained to initiate legal proceedings against you for
recovery of possession of the demised premises and for damages which may be sustained by her due to your
willful retention of possession, as well as for breach of the covenants contained in the lease deed.

Please note that a copy of this Notice is kept in my office for record and further necessary action. You are also advised to
retain the copy safely, as you may be required to produce it in court.

Yours faithfully,

[Signature of Advocate]
[Name of Advocate]
[Address of Advocate's Office]
[Contact Information]
ADVOCATE