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KAMKUS COLLEGE OF LAW

LL.B. (V SEMESTER)
DRAFTING OF PLEADINGS AND CONVEYANCING CODE: K-5005

Q. What is a plaint? What are its essentials? Explain in detail.

ANS. A plaint is a legal document which contains the written statement of the plaintiff‟s
claim. A plaint is the first step towards the initiation of a suit. In fact, in the every plaint, the
contents of the civil suit are laid out.

Through such a plaint, the grievances of the plaintiff are spelled out, as well as the possible
causes of action that can arise out of the suit. A plaint which is presented to a civil court of
appropriate jurisdiction contains everything, including facts to relief that the plaintiff expects
to obtain.

Although it hasn‘t been defined in the CPC, it is a comprehensive document, a pleading of

the plaintiff, which outlines the essentials of a suit, and sets the legal wheels up and running.
Order VII of the CPC particularly deals with a plaint. A few of the essentials of a plaint
implicit in itself are those only material facts and not all facts or the law as such is to be
stated, the facts should be concise and precise, and no evidence should be mentioned.

PARTICULARS OF A PLAINT:

 The name of the particular court where the suit is initiated.

 Name, place, and description of the plaintiff ‘s residence
 Name, place, and description of the defendant‘s residence.
 A statement of unsoundness of mind or minority in case the plaintiff or the
defendant

belongs to either of the categories.

 The facts that led to the cause of action and when it arose.
 The facts that point out to the jurisdiction of the court.
 The plaintiff‘s claim for relief.
 The amount allowed or relinquished by the plaintiff, if so.
 A statement containing the value of the subject matter of the suit as admitted by
the case.

ADDITIONAL PARTICULARS:
Order VII, Rule 2 states that the plaintiff shall state the exact amount of money to be
obtained from the defendant if the case is so. On the other hand, if the exact amount cannot
be arrived at, as is then case with mesne profits, or claim for property from the defendant, an
approximate figure must be mentioned by the plaintiff.
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 Order VII, Rule 3 states that when immovable property is the subject matter of the
plaint, the property must be duly described, that is sufficient in the ordinary course to
identify it.
 Order VII, Rule 3 states that when the plaintiff has initiated the suit in a
representative

capacity, it has to be shown that he/ she has sufficient interest in doing the same as
well as has taken the required steps to ensure the same.

 The plaint should adequately show the involvement of the defendant, including
his/ her interests in the same and thereby justifying the need to bring him/ her
forward.
 If the plaintiff files the suit after the expiration of the period of limitation, he/ she
must show the reason for which such an exemption from law is being claimed.

PROCEDURE FOR ADMISSION OF THE PLAINT:

When the court serves the summons for the defendant, according to Order V, Rule 9,
the plaintiff must present copies of then plaint according to the number of defendants,
and should also pay the summons fee, within seven days of such a summons.

THE PARTICULARS OF A PLAINT CAN BE DIVIDED INTO THREE

IMPORTANT PARTS SUCH AS HEADING AND TITLE, BODY OF THE
PLAINT, AND RELIEF CLAIMED.

HEADING AND TITLE:

NAME OF THE COURT:

The name of the court should be written as the heading. It is not necessary to mention the
presiding officer of the court. The name of the court would be sufficient. Eg. In the Court of
District Judge, Kolkata.

PARTIES TO THE SUIT:

There are two parties to every suit, the plaintiffs and the defendants. For the purpose of the
suit, the name, place, and description of the residence of both the plaintiffs and the defendants
have to be mentioned in the particular plaint.

When there are several plaintiffs, all of their names have to be mentioned and have to be
categorically listed, according to their pleadings, or in the order in which their story is told by
the plaintiff.

Minors cannot sue nor can be sued. So if one of the parties is a minor or of unsound mind, it
will have to be mentioned in the cause title.

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TITLE OF THE SUIT:

The title of the suit contains the reasons for approaching the court and the jurisdiction before
which the plaint is initiated.

BODY OF THE PLAINT

This is the body of the plaint wherein the plaintiff describes his/ her concerns in an
elaborative manner. This is divided into short paragraphs, with each paragraph containing one
fact each. The body of the plaint is divided into two further parts which are:

FORMAL PORTION:
The formal portion contains the following essentials.

1. A statement regarding the date of cause of action. It is necessary for every plaint to
contain the date when the cause of action arose. The primary objective behind this is
to determine the period of limitation.
2. There should be a statement regarding the jurisdiction of the court. The plaint must
contain all facts that point out the pecuniary or territorial jurisdiction of the court.
3. The value of the subject matter of the suit must be stated properly in this part of the
plaint.

4. Statement regarding minority.

5. The representative character of the plaintiff
6. The reasons why the plaintiff wants to claim exemptions under the law if the suit is

initiated after the period of limitation.

 SUBSTANTIAL PORTION:
 This portion of the plaint must contain all the necessary and vital facts, which
constitute the suit. If the plaintiff wishes to pursue a course of action on any other
grounds, such grounds must be duly mentioned.
 It should be shown in the plaint that the defendant is interested in the subject
matter and therefore must be called upon by the court.
 If there is more than one defendant, and if the liability is not joint, then the
individual liability of each and every defendant must be shown separately.
 In the same way, if there is more than one plaintiff, and their cause of action is not
joint, then too, the same has to be mentioned separately.
 RELIEF:

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The last part of the plaint is the relief. The relief claimed must be worded properly and
accurately. Every plaint must state specifically the kind of relief asked for, be it in the form of
damages, specific performance or injunction or damages of any other kind. This has to be
done with utmost carefulness because the claims in the plaint cannot be backed by oral
pleadings.

SIGNATURE AND VERIFICATION:

The signature of the plaintiff is put towards the end of the plaint. In case the plaintiff is not
present due to any legitimate reason, then the signature of an authorized representative would
suffice.

The plaint should also be duly verified by the plaintiff. In case the plaintiff is unable to do so,
his/ her representative may do the same after informing the court.

The plaintiff has to specify against the paragraphs in the pleadings, what all he/ she has
verified by his/ her own awareness of the facts, and what has been verified as per information
received, and subsequently believed to be true.

The signature of the plaintiff/ verifier, along with the date and the place, at the end of the
plaint is essential.

The verification can only be done before a competent court or in front of an Oath
Commissioner. Where the language of the plaint is beyond the comprehension of the
plaintiff, the same has to be translated, or made known to the plaintiff, and only after that can
he/ she put his/her signature and get the plaint verified by the Oath Commissioner.

RETURN OF PLAINT
Order VII, Rule 10 states that the plaint will have to be returned in such situations where the
court is u able to entertain the plaint, or when it does not have the jurisdiction to entertain the
plaint.

The courts can exercise the power of returning the plaint for presentation before the
appropriate court if it feels that the trial court itself did not have the appropriate jurisdiction in
the first place. Once the appellate court finds out that the trial court decided on the civil suit
without proper jurisdiction, such decision would be nullified.

DISMISSAL OF SUIT
If the plaint is to be returned to the parties after its rejection, the court has to fix a date for the
same where the parties can arrive for this purpose. This was mentioned in Rule 10, inserted
by the Amendment Act of 1976. If the court does not have the adequate jurisdiction, the
proper course is to return the plaint and not to dismiss it.

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NATURE OF RETURNED PLAINT

When a plaint has been returned for want of proper jurisdiction, it is to be treated as a fresh
plaint. This fresh plaint can be amended and no consequences can arise as a result of it. This
amended plaint cannot be rejected by stating that the averments were not present in the
original plaint. This argument will not be taken into consideration and the plaint will be
allowed to stand.

WHEN CAN A PLAINT BE REJECTED?

A plaint can be rejected under the following scenarios:

 Where the cause of action is not disclosed

 When the relief claimed by the plaintiff is undervalued, and he/ she is not able to
correct it even after being instructed by the court to do so.
 When the relief claimed is proper, but the plaintiff proceeds with the plaint on a
paper which has not been stamped sufficiently and fails to do so even after the court‘s
instruction.
 Where the suit stems from a statement which has been essentially barred by law.

WHEN CAN THE APPLICATION FOR THE REJECTION OF A

PLAINT BE MOVED?

Application for the rejection of the plaint can be in instituted at any time, even after
the issues have been solidified in the said plaint.

CONCLUSION

A plaint is important in the sense that it is the first and foremost step towards
instituting the suit. Therefore, due care has to be taken to ensure that the procedure
required for the initiation of plaint has been duly recognized. It is mandatory to follow
protocol by stating the relevant facts, the necessary details, refrain from providing
evidence and mention the kind of relief envisaged so that the plaintiff is duly
benefitted

Q. Definition of pleading. Discuss its objects and fundamental rules? ANS.

Meaning of Pleadings:
Pleadings are the statement of facts in writing drawn up and filed in a Court by each party to
am case stating therein what his contention shall be at the trial and giving all such details as
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his opponent will need to know in order to prepare his case in answer. In India there are only
two pleading in a suit as defined under Order 6, rule 1 of the Code of Civil Procedure, it says
that

pleading means “Plaint or Written Statement”. This definition is not very clear in itself.
The plaint and written statement are defined in the following clauses:

1. (a)  Plaint:
A statement of claims, called the ―plaint‖ in which the plaintiff sets out his cause of
action with all necessary particulars; and

2. (b)  Written Statement:

A statement of defenses, called the ―written statement‖ which the defendant deals
with every material fact alleged by the Plaintiff in the plaint and also sets any new
facts which tells in his favour, adding such objection as he wishes to take to the claim.

Beside the plaint and the written statement, order pleading that may be filed, may be classed
under two heads: (i) subsequent pleadings, and (ii) additional pleadings.

(i) Subsequent Pleadings:

The only subsequent pleading which is filed as a matter of right, without the leave of the
court, is a written statement of a plaintiff by way of defence to a plea set-off set up by a
defendant in the written statement of his defences. No other pleading subsequent to the
written statement of a defendant other than that by way of defence to a plea of set off can be
presented except with the leave of the court and upon such terms as the court may think
proper. But the Court may at any time require a written statement or an additional written
statement from any of the parties and fix a time for presenting the same (O.8, R. 9). Any
ground of defence which has arisen after the institution of the suit or the presentation of the
written statement, may be, raised by the plaintiff or the defendant as the case may be, in his
written statement (O.8, R.9). This is also a subsequent pleading. The subsequent pleading,
i.e., this written statement in some states is also termed as ―replication‖. This term was
formerly used in England where plaintiff‘s written statement is now called ―reply‖.

(ii) Additional Pleading:

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Although no pleading subsequent to the written statement of a defendant other than by way of
defence to a plea of set-off can be presented without the leave of the court, yet the court may
at any time require a written statement or additional written statement from any of the parties,
i.e., plaintiff or defendant or both (O.8, R.8). The additional pleadings are not subsequent
pleadings in the true sense of the term. They are pleading by way of further and better
statement of the nature of the claim or defence or further and better particular of any matter
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or state in the pleadings. These pleading may be ordered under order 6, rule 5 of the Code of
Civil Procedure.

Under the English Law, pleading has been defined as follows: “pleading includes any petition
or summons and also include the statement in writing of the claim or demand of any plaintiff
and of the defence of any defendant thereto and of reply of the plaintiff to nay counter-claim
of a defendant.”

Function and Object of Pleadings:

The object of pleadings is to assist the Court and the parties to the dispute in its adjudication.
Its function is of multi-dimension, and is in various ways. Stable j., Pinston v. Loyds Bank
Ltd., (1941) 2 K.B. 72, has expressed the function of pleading in the following words:

“The function of a pleading is not simply for the benefit of the parties but also and perhaps
primarily for the assistance of a Court by defining with precision the area beyond which
without the leave of the court, and consequential amendment of pleading, conflict must not be
allow to extend”.

―The whole object of pleading is to give a fair notice to each party of what the opponent‘s
case is to; ascertain with precision, the points on which the parties agree and those on which
the they differ and thus to bring the parties to is also a definite issue. The purpose of pleading
is also eradicate irrelevancy. The parties, thus themselves know what are the matters left in
dispute and what facts whey have to prove at the trial. They are saved from the expense and
trouble of calling evidence which may prove unnecessary in view of the admission of the
opposite party. And further, by knowing before hand, what point the opposite party raise at
the trial they are prepared to meet them and are not taken by surprise as they would have
been, had three been no rules pleadings to compel the parties to lay bare their cases before the
opposite party prior to the commencement of the actual trial‖.

Truly speaking the object of the pleading is to narrow down the controversy of the parties to
definite issue. The sole object of pleadings is that each side may be fully active to the
question that are about to be argued in order that they may have an opportunity of bringing
forward such evidence as may be appropriate to the issues. The Court has no power to
disregard the pleading and reach conclusions that they think are just and proper.

A few year ago Hon‟ble Mr. Justice Lord William of the Calcutta High Court in the case of,
strongly emphasize the need of careful study of the art of pleading and condemned the
obscure pleading which were shocking and were filed even in Calcutta High Court. It is,

therefore, the duty of every advocate to take extreme care in drafting of his pleadings. There
is no force in saying that the pleading in this country are not to be strictly construed. Has this
been the object of the law of pleading the framers of the Code of Civil Procedure would not
have laid down the rules of civil pleadings?
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A select committee of eminent lawyers having knowledge of Indian conditions was appointed
to frame the present Code of Civil Procedure which has been amended and redrafted in 1976.
Order 6, 7 and 8 of the Code of Civil Procedure are very important from the point of view of
drafting of pleading in the High Court and Mofussils Court. Appendix A to the Code of Civil
Procedure contains some model form of pleadings which are useful. Unfortunately these
forms are seldom consulted by the mofussil pleader the reason being that the pleadings are
being drafted by their clerks who are not trained in this direction and do not have legal
knowledge.

The pleading should always be drawn up and conducted in such manner so as to evolve some
clear and definite issues i.e., some definite propositions of law and/or fact, asserted by one
party and denied by the other. But both the parties must agree on the points sought to be
adjudicated upon in action. When this has been fairy and properly ascertained then following
advantages flow from pleadings:

1. (i)  It is a benefit to the parties to know exactly what are the matters left in dispute.
They may discover that they are fighting about nothing at all; e.g. when a plaintiff in
an action of libel finds that the defendant does not assert that the words are true, he is
often willing to accept an apology and costs, and so put an end to the action.
2. (ii)  It is also a boon to the parties to know precisely what facts they must prove at the
trial; otherwise, they may go to great trouble and expense in procuring evidence of
facts which their opponent does not dispute. On the other hand, if they assume that
their opponent will not raise such and such a point, they may be taken suddenly by
surprise at the trial.
3. (iii)  Moreover, it is necessary to ascertain the nature of the controversy in order to
determine the most appropriate mode of trial. It may turn out to be a pure point of
law, which should be decided by judge.
4. (iv)  It is desirable to place on record the precise question raised in the action so that
the parties or their successor may not fight the same battle over and again.

Fundamental Rules of Pleadings:

The English law of pleading has got four fundamental rules of pleading upon which Order 6
of the Code of Civil Procedure is based which are set out as under:

1. Every pleading must state facts and not law.

2. It must state all material facts and material facts only.

3. It must state only the facts on which the party‘s pleading relies and not the evidence
by which they are to be proved; and
4. It must state such facts concisely, but with precision and certainty.

(1) Facts, not law

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The first fundamental rule pleading is that neither provisions of law nor conclusion of mixed
law and facts, should be alleged in a pleading. The pleading should be confined to facts only
and it is for the judge to draw such interference from those facts as are permissible under the
law of which he is bound to take judicial notice.

Illustration
It will not be sufficient to state that ̳Abu Mohammad made a gift of his property‘ to the
plaintiff. The plaintiff should allege here the gift was made, how it was accepted and how
possession was delivered; because these are the facts which constitute a valid gift under
Muhammedan Law. To allege that ̳Abu Mohammad made a gift‘ will be a conclusion of law
from the facts which are not to be state directly in the pleading. Secondly, in a suit for
damages for negligence, it is not enough for the plaintiff to state that the defendant has been
guilty of negligence‟ without showing how and in what respect he was negligence and how
he became bound to use due care to prevent an injury to other. Thirdly, when then defendant
has to reply to the claim of the plaintiff in a money suit, it is not sufficient for him to state
that ̳the defendant does not owe to the plaintiff‘. But he must allege such fact which go to
prove that in the circumstances the defendant does not owe to the plaintiff. The defendant
should state that he never borrowed from the plaintiff, or good were never ordered, or were
never delivered, or that they were not equal to the sample.

It is not sufficient in a suit upon a contract for the defendant to, merely, plead the ̳the contract
is rescinded‘. The defendant must plead in what manner and by what means he contends that
is was rescinded.

The fundamental rule of pleading is that a pleading shall affirmatively contain only a material
fact on which the party relies and it shall not contain facts which are only evidence by which
such material facts are to be proved. The reason for not mentioning the law in the pleading is
that it is the duty of the court to find out and examine all plea of Law that may be applicable
to the facts of the case. However, the parties can make their submission about law any time.
For example, the non maintainability of the suit which is a point of law, can be urged
although no specific plea has been raised in the pleading. The rule that every pleading must
state facts and not law or an interference of law has got following exceptions.

(a) Foreign Laws: The court do not take any judicial notice of foreign laws and hence they
must be pleaded as facts. The status of the foreign country intended to be relied upon should
be set-forth as substantially as any other facts. .

(b) Mixed question of Laws and facts: Where a questions is one of mixed law and fact,
it is permissible and proper to plead both the facts and the legal conclusion. For instance, the
defendant may say that the suit is barred by the law of limitation, or he may say he is entitled
to set off after narrating the facts on which he bases his conclusions.

(c) Condition precedent: The Code of Civil Procedure provides that any condition
precedent the performance of which is intended to be contested shall be distinctly specified in
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the pleading of the plaintiff or defendant (Order 6 r.6 of C.P.C.), as for instance, the legality
of the notice under section 80, C.P.C.

(d) Custom and Usage of Trades: Custom and usage of any trade and business shall be
pleaded like any other facts, if a party wants to rely on them. But a custom repeatedly brought
before Court and recognised by them regularly is deemed to have acquired the force of law
and need not be pleaded. For example, an occupancy tenant is entitled by local custom and
usage to cut trees growing upon his holding it is not necessary for the occupancy tenant to
plead this custom, if he wishes to rely on this right to cut the trees. Similarly, a party who
wishes to rely on the usage of a particular trade and business and if it is at variance with any
provision of the Contract Act, he must not plead the usage of such trade and business with its
detailed incident. If it is not pleaded, no evidence to prove it shall be admitted.

(e) The facts of negligence, right or liability, unlawful or wrongful act should be specifically
pleaded. Every plea of fact should be specifically raised and proved.

(2) Material facts

The second fundamental rule of pleading is that every pleading shall contain only a statement
of material facts on which the party pleading relies for his claim or defence. This rule has
been enunciated in Order 6, rule 2 of the Code of Civil Procedure. The rule that the material
facts should be not a technically and that an omission to observe it may increase the difficulty
in the Court‘s task of ascertaining the rights of the parties. Further, every pleading must state
facts which are material at the present stage of the suit. Now, the question arises what is
material fact? The fact which is essential to the Plaintiff‘s cause of action or to the
defendant‘s defence which each proves or fail is material fact.

Now, the question that what facts are material, is not very easy to answer. However, it can be
said that fact is material for the pleading of a party which he is bound to prove at the trial
unless admitted by the other party before he can succeed in his claim or defence. If one is in
reasonable doubt about a particular fact as a material fact it is better for him to plead that fact
rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the
hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full
particulars of fraud and misrepresentation, because these particulars constitute material facts
unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to prove
at the trial. Of course, a material fact can be inserted in the pleading by amendment which is
the right of the plaintiff and 10

defendant; but when a pleading is amended one is likely to be saddled with the cost of other
side. When suit is brought under a particular statute, all facts which are necessary to bring the
suit under the statue must be alleged. When a rule of law applicable to a case has an
exception to a case has an exception to it, all facts are material which tend to take the case out
of the rule or out of exception. For instance:

1. (1)  If a childless Mohammedan widow claims one-fourth share in the property of her
husband as allowed by Shia law, she must allege that her husband was a Shia.
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2. (2)  Where Plaintiff claims right of pre-emption u/s 15(2)(b) of Punjab Pre-emption
Act, he must plead the necessary facts in respect of his claim.
3. (3)  Where a plaintiff claims an alternative relief, he must plead facts entitling him,
for such relief.
4. (4)  Where the question of age or time affects the right of the parties, the facts should
be specifically pleaded.
5. (5)  Every plea of facts must be specifically pleaded, and proved. Court cannot allow
party to the suit to lead evidence inconsistent whit his plea in spite of object of
objection by the other party is allowed to lead evidence in rebuttal does not cure the
legal defect.
6. (6)  Where a plaintiff sues on the basis of a title he must state the nature of the deed
from which he has derived title.
7. (7)  The plea that a woman claiming maintenance has lost her right due to continuous
desertion or living in adultery should be specifically raised.
8. (8)  Where the plea is based on custom, it must be stated in the precise form what the
custom is. For instance, if a childless Mohammedan widow claims one-fourth share in
the property of her husband as allowed by Shia Law, she must allege that her husband
was a Shia. The following are exception to this fundamental rule of pleading.

(a) Content of documents: Whenever the content of document are material, it shall be
sufficient in any pleading to state the effect thereof as briefly as possible without setting out
whole or any part thereof unless any precise words thereof are material.
For instance, if plaintiff‘s claim is based on a sale-deed, it is sufficient to state that “defendant
has sold the property to the property to the plaintiff by a sale-deed dated......”

Matters of Inducement: it means introductory or prefatory facts which should be stated in

the first and second paras in the body of the plaint or written statement. Though it is not
necessary yet sometimes it is desirable to commence a plaint with some introductory
allegations stating who the parties are, what business they carry on how they are related and
connected and other surrounding circumstances leading up to the dispute. Though these are
not material facts yet these are allowed in England and hence in India too. But the matter of
inducement should be reduced to the minimum need.

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(3) Facts, Not Evidence

The third fundamental rule of pleading has been laid down by Order 6, rule 2 of the Code of
Civil Procedure. It says that every pleading must contain a statement of material facts but not
the evidence by which they are to be proved. The material facts on which a party relies are
called

Facta Prabanda, i.e. the facts to be proved, and they should be stated in the pleadings. The
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evidence or facts by which Facta Probanda are to be proved are called Facts Probantia,
and they are not to be stated in the pleadings. Facta Probantia are not the facts in issue but
only relevant facts which will be proved at the trial in order to established facts in issue. For
instance, in a suit of damages for malicious prosecution the plaintiff should only allege in the
plaint that the defendant was actuated by malice in prosecuting him. He must not allege that
he had previously given evidence against the defendant and the defendant had vowed to take
revenge. The plaintiff is by all means entitled to tender evidence to prove this fact. Secondly,
in a policy of life insurance, the condition that the policy shall be void, if the holder dies of
his own hand, in the defence it is not necessary to state that the assured brought the pistol a
few days before his death and made all preparation to kill himself. It is sufficient to state in
defence that the assured died of his own hand. In some cases where the facts in issue and
relevant facts are so mixed up that it is very difficult to separate them and if it is so the
relevant facts may be stated. For example, where custom is based on village administration
paper, which is the basis of claim and its sole proof. In such cases the record has to be
pleaded. In the Punjab Rewaje Aam (customs) are contained by the Manual of Customary
Law which records customs, are only evidence and it is not necessary to refer to them in
plaints.

(4) Concise Form with Precision and Certainty

The material facts must be stated in a summary form, succinctly and in a strict chronological
order. All unnecessary allegations and their details should be omitted in order to attain
brevity in pleadings. Pleading is not a place for fine writing but only assertion of hard facts. It
is desirable to go straight to the point and state fact, boldly, clearly and concisely and to avoid
all paraphrasing and all circumlocutions. As far as possible an active voice should be
preferred to passive in pleading. The same person or thing should be called by the same name
throughout the pleading. The pleading shall be divided into paragraph numbered
consecutively. Dates sums and numbers shall be expressed in figures, even though the
pleading should be concise, it should never be obscure. It should be both concise, as well as
precise. The parties cannot change the case and get the relief.

As already discussed the unnecessary facts should be omitted from the pleadings. Let us
summarise them. (1)Matters of law, (2) Matters of evidence, (3) Matters not alleged in the
opponent‘s pleading, (4) Matters presumed by law, (5) The performance of condition
precedent, (6) The words of documents, (7) Matters affecting cost only, (8) Matters not
material to the case, (9) The defendant need not plead to the prayer of the plaintiff, (10) The
defendant need not plead to the damages claimed or their amount. The above details should
not be pleaded in a pleading. A good pleader should bear in mind the following points in
relation to a pleading:

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1. (1)  Describe the names and places accurately and spell them correctly and adopt the
same spelling throughout.
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2. (2)  One should always avoid the use of pronoun as ̳He‘, ̳She‘, ̳This‘, or ̳That‘. The
plaintiff or the defendant should not be addressed by their names at some place and at
some place by the word ̳Plaintiff‘ and ̳defendant‘, call them throughout your pleading
by the expression ̳the plaintiff‘ and ̳the defendant‘ as the case may be. Where one has
to distinguish between two or more plaintiffs or defendants, call in your pleading, ̳the
plaintiff Ramashankar‘ or ̳the defendant-Hariharan‘ as the case may be.
3. (3)  A lawyers should allege all facts boldly and plainly he should use the language of
the document or the Act itself; and he should not invent his own language however
correct it may be, e.g. of a policy becomes void in case, ―the assured shall die of his
own hand.‖ Now, in this case while drafting the pleading instead ―the assured killed
himself‖ or he committed suicide,‖ plead that ―the assured died of his own hand.‖
4. (4)  A lawyer should allege all facts boldly and plainly. He should avoid ifs and buts.
As far as possible complex sentences should also be avoided. Facts should not be
repeated. Pleading should be divided into separate paragraphs and as far as possible
only one fact should be contained by one paragraph embodying all necessary
particulars in the pleading.
5. (5)  Every pleading shall be signed by the party and his advocate and, if the party is
unable to sign the pleading it may be signed by this agent.
6. (6)  Every pleading shall be verified by the party or the parties. Verification can also
be made by any other person if acquainted with the facts of pleadings. False
verification is an offence punishable by the Indian Penal Code.
7. (7)  In cases where a corporation is a party, pleading may be verified by Secretary or
by the director or by any other principal officer of that corporation who is able to
depose the facts of the case. in verification clause one should denote according to the
numbers of paragraph o his own knowledge and what he verified upon the
information received and verified to be true.

Alternative Pleas:
Law does not prohibit a plaintiff from relying on several distinct and different rights in the
alternative or a defendant from raising as many distinct and separate defences as he like. For
example, a plaintiff may sue for possession of a house belonging to A, as an adopted son of
A, and in the alternative under a will executed by A in the plaintiff‘s favour. A plaintiff may
claim proprietary right in a land, or, in the alternative easementary right in an action for pre-
emption the defendant is not prohibited from setting up a plea of estoppels in addition to a
plea of denial of custom of pre-emption. A Hindu person claiming under a sale deed from a
Hindu widow may

13

support his claim by pleading that the widow separated during the life time of her husband
and hence she was the owner of the property which she had sold to him, or in the alternative
the widow was in possession forever 12 years and thus became owner by adverse possession.

A defendant in money suit due on promissory note against him may plead that he did not
execute the promissory note, and in the alternative the plaintiff claim is barred by the law of
14

limitation. But it must be carefully borne in mind by the draftsman and separately be stated in
the pleading. The Court will not allow any such pleas on the ground covered by implication
unless specifically set out. Thus, in a suit by a son to set aside certain transfers made by his
mother on the ground of unsoundness of mind of his mother at the time or the transfer and
further averred that the donee was residing with his mother and was completely under his
dominion and control and the donee knew the mental condition of the donor.

*********

Q. What do you understand by Written Statement? Briefly discuss its contents.

ANS.

Meaning:

WRITTEN STATEMENT ORDER 8 OF CPC

The expression “written statement” has not been defined in this code. It is a term of specific
meaning ordinarily signifying a reply to the plaint filled by the plaintiff. In other words, it is a
pleading of the defendant wherein he deals with the material fact alleged by the plaintiff in
his plaint and also states any new fact in his favour or takes legal objections against the claim
of the plaintiff.

Who may file Written Statement:

A Written Statement may be filed by the defendant or by his duly authorized agent. In the
case of more than one defendant, the common written statement filed by them must be signed
by all of them. But it is sufficient if it is verified by one of them who is aware of the facts of
the case and is in a position to file an affidavit. But a written statement filed by one defendant
does not bind other defendants.

Time limit for filling Written Statement:

A written statement should be filed within thirty days from the service of the summons on
him. The said period, however, can be extended up to ninety days, (Rule -1). A defendant
should present a written statement of his defence in the said period.

14

Defences in written statement:

In written statement defendant can specifically deny the allegations made in the plaint by the
plaintiff against him. Besides this, he can also claim to set-off any sums of money payable by
15

the plaintiff to him as a counter defence (Order 8 Rule- 6). Further, if the defendant has any
claim against the plaintiff relating to any matter in the issue raised in the plaint, then he can
separately file a counter-claim along with his written statement. It is provided in Order 8 Rule
6A to 6G of the Code.

Particulars: Rule 1-5 and 7-10:

Drafting a written statement is an art so it should be drafted carefully and artistically. Before
proceeding to draft a written statement it is absolutely necessary for the defendant to examine
the plaint carefully.

Special Rules of defence

Rules 2 to 5 and 7 to 10 deal with special points regarding the filling of a written statement.

1. New facts, such as the suit is not maintainable, or that the transaction is either void or
voidable in law, and all such grounds of defence as, if not raised, would take the
plaintiff by surprise, or would raise issues of fact not arising out of the plaint, such as
fraud, limitation, release, payment, performance or facts showing illegality, etc. must
be raised. (Order 8 Rule 2).
2. The denial must be specific. It is not sufficient for a defendant in his written statement
to deny generally the grounds alleged by the plaintiff, but he must deal specifically
with each allegation of fact which he does not admit, except damages.
3. The denial should not be vague or evasive. Where a defendant wants to deny any
allegation of fact in the plaint, he must do so clearly, specifically and explicitly and
not evasively or generally.
4. Where every allegation of fact in the plaint, if not denied specifically or by necessary
implication, or stated to be not admitted except as against a person under disability.
The court may, however, require proof of any such fact otherwise than by such
admission.
5. Where the defendant relies upon several distinct grounds of defence or set-off or
Counter-claim founded upon separate and distinct facts, they should be stated
separately and distinctly.
6. Any new ground of defence which has arisen after the institution of the suit is a
presentation of a written statement claiming a set-off or counterclaim may be raised
by the defendant or plaintiff in his written statement as the case may be.
7. If the defendant fails to present his written statement within the time permitted or
fixed by the court, the court will pronounce the judgment against him or pass such
order in relation to the suit as it thinks fit and a decree will be drawn up according to
the said judgment.
8. No pleading after the written statement of the defendant other than by way of
defence to set-off or counterclaim can be filed.

Conclusion:-
At last, it is clear that the written statement is a reply statement of the defendant to the
plaintiff. In this defendant state his defence and deny the allegation of the plaintiff as per his
material facts. It is a method to disclosed both sides of the suit in both the party present his
16

favour by the way of the plaint, the plaintiff and by the way of written statement, the
defendant in the court.

Q. What is meant by counter-claim? Explain the difference between counter-

claim and set-off?

ANS. Counter-claim [Order VIII, Rules 6-A to 6-G]

A Counter-claim is “a claim made by the defendant in a suit against the plaintiff”. It can be
stated as follows:-

1. (1)  It is an independent claim

2. (2)  It is separable from the plaintiff‘s claim, and
3. (3)  It is enforceable by a cross-action in favour of the defendant

Before 1976, there was no provision regarding the counter-claim in the Code of Civil
Procedure. In order to prevent multiplicity of proceedings, the Law Commission of India
favoured the conceding of a right to make a counter claim to the defendant. This right was in
addition to a counter-claim in the same suit. Counter-claim result in the following
advantages:-

1. (i)  Saving the time of the courts, particularly in the context of huge pendency of cases
over a long period of time;
2. (ii)  Eliminate the inconvenience of the parties to filing fresh litigation, on the issues
which could be well-resolved in the present suit itself; This would also result in the
avoidance of multiplicity of proceedings and
3. (iii)  Help in the early disposal of cases which otherwise, would have been
inordinately delayed.

In view of the weighty reasons that prevailed with the then Govt., an Amendment Act of
1976 to CPC made a provision for counter-claims. Such a counter-claim may defeat the relief
sought by the plaintiff and thus this can be viewed as a ―cross action”. Another factor that
weighed with the Government in enacting the Amendment of 1976 was the ruling of the apex
court (In Re Laxmidas AIR 1964 SC P.11) that right to make a counter-claim be made
statutory. Though the Government acted after a lapse of 12 years for acting on the ruling of
the apex court, it has served a landable purpose in achieving the objectives such as avoidance
of multiplicity of proceedings and to expedite the course of justice and give justice to both the
parties to the suit, though the counter-claims can be set up in respect of a claim for which the
defendant can file a separate suit. (Munshi Ram Vs. Radha Kishan, AIR 1975 Punjab P.113-
114) The court, due to liberal construction, considered the counter claim as a plaint in a cross
suit and hear the original suit and counter claim together and give its decision, provided the
counter-claim is property stamped.

The specific provision made for counter-claims can be discussed in detail:-

Rule6A(1): Thisenablesadefendanttosetupbywayofcounter-claimagainsttheclaimof the

plaintiff any right or claim in respect of action accruing to the defendant against the plaintiff
17

either before or after filing of the suit but before the defendant has delivered his defence or
before the time fixed for delivery of his defence has expired.

The following limitations are imposed on the defendant:

I Counter-claim should not exceed the pecuniary limits of the jurisdiction.

1. (i)  This is due to the reason that the pecuniary jurisdiction cannot be ousted;
2. (ii)  The power of the court to try the suit already entertained cannot be taken away by
accepting the counter-claim beyond the pecuniary jurisdiction;
3. (iii)  A counter-claim solely against co-defendants is not maintainable, though the
defendant along with plaintiff may claim relief against the co-defendants in the

case; (Rohit Singh Vs. State of Bihar, AIR 2007 SC P.10).

4. (iv)  The defendant may set up a counter-claim against the plaintiff for a cause of

action either before or after filing of the suit. However, such claim should not be
barred by limitation. (Mahender Kumar Vs. State of MP, AIR 1987 SC P.1395).

The distinction between set-off and counter-claim may now be noted :

Set-off is a statutory defence to a plaintiff‘s action, whereas a counterclaim is

substantially a cross-action.

 Set-off must be for an ascertained sum or must arise out of the same transaction
as the plaintiff‘s claim. A counter-claim need not arise out of the same transaction.
 Set-off is a statutory ground of defence and has to be pleaded in the written
statement. It can be sued as a shield and not as a sword. Counter-claim, on the other
hand, does not

17





Q. ANS.

afford any defence to the plaintiff‘s claim. It is a weapon of offence which enables the
defendant to enforce his claim against the plaintiff as effectually as in an independent action.
It is a sort of cross-action.

If the statute of limitation is pleaded to a defence of set-off, the plaintiff in order to establish
his plea has to prove that set-off was barred when the plaintiff commenced the action. It is not
enough to prove that it was barred at the time when it was pleaded. In the
18

case of a counter-claim, it is enough for the plaintiff to prove that the counter-claim was
barred when it was pleaded.

An equitable set-off is a claim by the defendant in defence, which generally cannot

exceed the plaintiff‘s claim. A counter-claim the defendant may, however, exceed the
plaintiff‘s claim, being in nature of the cross action. Under the provision rule 6-F of Order 6,
if in any suit a set off or counter claim is established as a defence against plaintiffs claim and
any balance is found due to the defendant as the case may be the court may give judgment to
the party entitled to such balance.

Define complaint with its essentials.

―Complaint‖ means any allegation made orally or in writing to a Magistrate, with a view to
his taking action under the Code of Criminal Procedure that some person, whether known or
unknown, has committed an offence, but it does not include a police report. [Section 2 (d),
Code of Criminal Procedure]

To constitute a complaint there must be an allegation made with a view to the recipient taking
action under the Code, charging some person with a particular offence. A mere presentation
of petition to a Magistrate to enable him to take administrative action is not a complaint
within the terms of the definition.

It must be presented to him with a view to his taking action under the Criminal Procedure
Code. A complaint need not necessarily be made by the person aggrieved but may be made
by any person aware of the offence.

Its essentials:
The main essentials of a complaint are:

1. 2.

The allegation must be made to a Magistrate and not to a judge. A police officer is not a
Magistrate and as such a petition or information sent to him is not a complaint.

The allegation must be made with a view to the Magistrate‘s taking action under the Code. A
mere statement to a Magistrate by way of information without any intention of asking him to
take action is not a complaint.

18
19

3. The allegation must be that an offence has been committed. It is not necessary that a
particular offence be stated: only the allegation of fact must constitute an offence. The
mention of a wrong section does not vitiate the character of a complaint. The
complaint need not specify any offender or even the section of the law which makes
the act or omission punishable.
4. The allegation must be made orally or in writing. It need not set out all the facts on
which the accused is to be charged, but must contain a statement of true facts relied
on as constituting the offence in ordinary and concise language admitting of no
ambiguity.
5. A complaint need not necessarily be made by the person injured but may be made by
any person aware of the offence. In case of the defiance of general law, any person,
whether he has suffered any particular injury or not has a right to complain. The court
will, therefore, take cognizance of the above complaint.

Q. Draft a plaint for the wife in petition of divorce against husband under
section 13 of Hindu Marriage Act?

ANS.
IN THE COURT OF PRINCIPAL JUDGE, FAMILY COURT (DISTT..), DELHI

HMA PETITION NO. ________ OF 2017

IN THE MATTER OF:

X___________________ Y____________________

VERSUS

 ...  PETITIONER
 ...  RESPONDENT

PETITION FOR DISSOLUTION OF MARRIAGE BY A DECREE OF DIVORCE UNDER

SECTION 13 OF THE HINDU MARRIAGE ACT, 1955 (NO 25 OF 1955)

The petitioner prays as follows:

1. That a marriage was solemnized between the parties according to Hindu rites and
ceremonies after the commencement of the Hindu Marriage Act on_______ at
_________.The said marriage is registered with the Registrar of marriage.

A certified copy of the relevant extract from the Hindu Marriage Register.............is filed
herewith.

An affidavit, duly attested stating above facts has also been filed.
20

2. That the status and place of residence of the parties to the marriage before the marriage and
at the time of filing the petition were as follows:

19

Husband

Status Age Place of Residence

Wife

Status Age Place of Residence

1. (i)  Before marriage
2. (ii)  At the time of

filling the petition

(Whether a party is a Hindu by religion or not is as part of his or her status).

3. (In this paragraph state the names of the children, if any, of the marriage together with their
sex, dates of birth or ages).

4. That the respondent.......(one or more of the grounds specified in section 13 may be

pleaded here. The facts on which the claim to relief is founded should be stated in accordance
with the Rules and as distinctly as the nature of the case permits. If ground as specified in
clause (i) of Section 13 (i) is pleaded, the petitioner should give particulars as nearly as he
can, of facts of voluntary sexual intercourse alleged to have been committed. The
matrimonial offences/offences charged should be set is separate paragraphs with the time and
places of their alleged commission.

5. (Where the ground of petition is on the ground specified in clause (i) of sub-section (1) of
Section 13. The petitioner has not in any manner been accessory to or connived at or
condoned the acts(s) complained of).

6. (Where the ground of petition is cruelty). The petitioner has not in any manner condoned
the cruelty.

7. That the petition is not presented in collusion with the respondent.

8. That there has not been any unnecessary or improper delay in filing the petition.
9. That there is not other legal ground why relief should not be granted.
10. That there have not been any previous proceedings with regard to the marriage by or

on behalf of any part. Or

There have been the following previous proceedings with regard to the marriage by or on
behalf of the parties:
21

Serial

(i) (ii) (iii) (iv)

Name of Parties

Nature of Proceedings with Section of that Act

Number and year of

the case

Name Result and location

of court

20

11. That the marriage was solemnized at................ The parties last resided together at............
The parties are now residing at..................... (Within the local limit of the ordinary original
jurisdiction of this Court.)

12. That the petitioner submits that this Hon‘ble Court has jurisdiction to try and entertain
this petition

PRAYER
In view of the above facts and circumstances, it is, therefore, most respectfully and humbly
prayed that this Hon‘ble Court may be pleased to grant a decree of divorce under Section 13
of HMA in favor of petitioner.

Any other relief/order/Direction this Hon‘ble Court may deem fit in the interest of justice and
equity.

PETITIONER

VERIFICATION:

The above named petitioner states on solemn affirmation that paras 1 to_____of the petition
are true to the petitioner‘s knowledge and paras_____ to ______ are true to the petitioner‘s
information received and believed to be true by him/her.

Verified at____________________ (Place) Dated_____________________________

[Note: An affidavits of petitioner is to be appended]

22

PETITIONER

21

Q. Draft an application for issue of temporary injunction. ANS.

IN THE COURT OF SENIOR CIVIL JUDGE (DISTRICT ________), DELHI

IN THE MATTER OF:

Sh. Om Veer Singh, S/o ____________ R/o ......

PLAINTIFF/APPLICANT

DEFENDANTS/RESPONDENTS

IA NO. ___________OF 20...

IN

SUIT NO. ___________OF 20...

1. Dr. U. Basu S/o _____________________, R/o .....

2. Sh. Tapan Kumar, S/o _________________, R/O....

VERSUS

APPLICATION FOR TEMPORARY INJUNCTION UNDER ORDER XXXIX, RULE 1 &

2 READ WITH SECTION 151 OF THE CODE OF CIVIL PROCEDURE, 1908

MOST RESPECTFULLY SHOWETH:

1. That the plaintiff has filed a suit for permanent injunction which is pending for disposal
before this Hon‘ble Court.
2. That the contents of the accompanying suit for permanent injunction may kindly be read as
a part and parcel of this application which are not repeated here for the sake of brevity.

3. That the plaintiff/applicant has got a prima-facie case in his favour and there is likelihood
of success in the present case.
4. That in case the defendants are not restrained by means of ad-interim injunction for
dispossessing the plaintiff from the above said premises no. _________ Uttam Nagar, New
Delhi and from interfering in physical peaceful possession of the above said premises, the
plaintiff shall suffer irreparable loss and injury and the suit shall become anfractuous and
would lead to multiplicity of the cases.

5. That the balance of convenience lies in favour of the plaintiff and against the defendants.
23

PRAYER:

It is, therefore most respectfully prayed that this Hon‘ble Court may be pleased to:-

22

a) Pass ex-parte ad interim injunction restraining the defendants, their associates, servants,
agents and their representatives from interfering into the peaceful physical possession of the
plaintiff in the above said premises and from dispossessing the applicant/plaintiff from the
same.

b) Passsuchotherandfurtherorder(s)asmaybedeemedfitandproperonthefactsandin the
circumstances of this case.

Plaintiff /Applicant Place: Through

Date: Advocate [NOTE: This Application has to be supported by an affidavit].

Q. ANS.

Draft a plaint for malicious prosecution. Also draft a written statement against
it.

In the Court of the Munsif of Allahabad

Suit No. .................of 1951

[____ ______ ______ ______ ______ ______ ______ ____ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ _ Plaintiff. __________________ Defendant

The plaintiff above-named begs to state as follows:—

1. That on the 13th of May, 1950, the defendant filed a complaint before the City Magistrate
of Allahabad charging the plaintiff with having burgled the defendant‘s house.

2. That a warrant was, in consequence of the complaint, issued for the arrest of the plaintiff,
who was arrested and kept in the lock-up for a period or fifteen days.

3. That after a protracted trial on the said charge the plaintiff was acquitted on the 5th of May,
1951, on the finding that the complaint was false.

4. That the defendant had made the complaint against the plaintiff maliciously and without a
reasonable or probable cause.
24

23

5. That by reason of the said prosecution, the plaintiff has suffered much physical and mental
pain, has been lowered in the estimation of his friends, was prevented from attending to his
business and incurred expenses in defending himself from the said charge.

Particulars of special damage:

Fee paid to Sri W.Y., Pleader for defence Rs. 300

Fee paid to his clerk Rs. 30

Expenses incurred in summoning three defence witnesses on two dates Rs. 50

Loss of business as a shop-keeper dealing in clothes Rs. 200

Total Rs. 580

6. That the cause of action for the suit arose on the 5th of May, 1951, viz., the date of
acquittal.

7. That the plaintiff was prosecuted in Allahabad and the defendant resides within the
jurisdiction of the court.

8. That the valuation of the suit for purposes of court-fee and jurisdiction is Rs. 1,5,80.

Relief:
The plaintiff claims:

1. Rs. 1,000 as general damages for mental and bodily pain and loss of reputation. 2. Rs. 580
as special damage.
3. Interest pendent lite and future.

Verification:
I, A, declare that the contents of paragraphs 1 to 5 of the above plaint are true to my personal
knowledge and the contents of paragraphs 6 to 8 are believed by me on information received
to be correct.

Sd. A. Pleader.

24
25

Q. Draft a writ petition under Article 226 of the Constitution of India for
issuance of prerogative writ of Mandamus or any other appropriate writ.

ANS.

IN THE HIGH COURT OF DELHI AT NEW DELHI (WRIT JURISDICTION)

WRIT PETITION (CIVIL) NO. ________OF 2016

IN THE MATTER OF:

X _________ S/o _________R/o ___________ PETITIONER

VERSUS

Municipal Corporation of Delhi,

Through Its Commissioner ... RESPONDENT

WRIT PETITION UNDER ARTICLE 226 OF CONSTITUTION OF INDIA FOR

ISSUANCE OF PREROGATIVE WRIT OF MANDAMUS
OR ANY OTHER APPROPRIATE WRIT

Respectfully showeth:

1. That the petitioner is a citizen of India residing at_______. The respondent is Municipal
Corporation of Delhi having their office at Town Hall, Chandni Chowk, Delhi.

BRIEF FACTS :-

2. That the petitioner is aggrieved by the illegal appointments of daily wage workers by
the M.C.D. office in defiance of Notification No. MCD/LF/01-103 dated 1.2.2014
which requires the M.C.D. to appoint only that person as Daily wage worker who are
below the age of 30 years as on 01.10.2014. The said Notification was issued after it
was duly approved.
3. That the petitioner is of 27 yrs of age and was working as a daily wage worker, when
on 1.12.2014 his services were terminated without notice/prior intimation. The
Petitioner during his service worked to the satisfaction of his superiors. The
respondent has appointed Sh. Ompal, Sh. Ram and Smt. Maya in defiance of the said
notification M.C.D./LF/01-/03 at 01.02.2014 as all the three persons namely Om Pal,
Sh. Ram and Smt. Maya are more than 30 years of age as on 01.10.2014. The about
named persons were appointed in utter disregard of Notification. The respondent,
however, removed the petitioner from service although petitioner met the
requirements.. That the Petitioner made representation to the respondent vide letter
dated 1.12.2014, 2.1.2015 and also met the commissioner personally and apprised
them of his grievance, however nothing materialized.

25
26

4. That in spite of oral and written representations the respondent have not cared to act
and are maintaining stoic silence on the whole issue.
5. That the petitioner has thus approached the Hon‘ble Court on amongst others the
following grounds

GROUNDS:

1. (a)  Because the action of the respondent is contrary to law and good conscience.
2. (b)  Because the action of the respondent is arbitrary, unreasonable, irrational and
unconstitutional.
3. (c)  Because respondent have no right to play with the career of the petitioner.
4. (d)  Because the petitioner was removed from job in spite of the fact that he was

below age and fulfilled all requirements.

5. (e)  Because respondent appointed. Sh. Ompal, Sh. Ram and Smt. Maya despite their

being overage and not meeting requirements of Notification No. MCD/LF/01-103

dated 1.2.2014.

6. (f)  Because the action of the respondent is bad in law

7. (g)  That the Petitioner craves, leave of this Honorable Court to add, amend, alter the

grounds raised in this petition.

6. That the cause of action in present case arose on 1.2.2014 when the respondent
brought

out the Notification No. MCD/LF/01-103 dated 1.2.2014., it further arise when on
1.12.2014 the petitioner was removed from job in spite of the fact that he was below
age and fulfilled all requirements, it further arose when respondent appointed. Sh.
Ompal, Sh. Ram and Smt Maya despite their being overage and not meeting
requirements of Notification No. MCD/LF/01-103 dated 1.2.2014, it further arose
when representations were made to respondent orally and in writing on 1.12.2014,
and 2.1.2015. The cause of action further arose when respondent did not act in spite of
the fact having brought to their notice. The cause of action is continuing one.

7. That the Petitioner has no other alternative efficacious remedy except to approach this
Hon‘ble Court by way of this writ petition
8. That the petitioner has not filed any other similar writ petition either before this
Hon‘ble Court or before the Supreme Court of India.
9. That there has been no undue delay in filing of this petition.
10. That the honorable court has territorial jurisdiction to entertain the writ petition.
11. That the requisite court fee of Rs. 50/- has been affixed on this petition.

PRAYER:
The petitioner most humbly prays that this Hon‘ble Court may be pleased to :-
27

26

1. (a)  issue appropriate writ in the nature of mandamus or any other appropriate writ
directing the Respondents to cancel the illegal appointment made in disregard of
Notification No. MCD/LF/01-103 dated 1. 2.2003: and
2. (b)  issue necessary directions to appointment of petitioner and (c) issue any other
further order/orders or direction/directions as this Hon‘ble Court may deem fit and
appropriate no the facts and the circumstances of this case.

FOR THIS ACT OF KINDNESS THE PETITIONER ABOVENAMED SHALL EVER

PRAY.

Delhi PETITIONER Date________________ THROUGH ADVOCATE

[NOTE: The petition will be supported by an affidavit]

Q. Draft a Curative petition under Article 129, 137, 141 and 142 of the
Constitution of India.

ANS. IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION

CURATIVE PETITION (CIVIL) NO. _____ OF 2016

IN THE MATTER OF:

X ________ R/o _______ ... PETITIONER

VERSUS

Y ________ R/o _______ ... RESPONDENT

CURATIVE PETITION UNDER ARTICLE 129, 137, 141AND 142 OF CONSTITUTION

OF INDIA READ WITH ORDER XLVIII OF SUPREME COURT RULES 2013

To
The Hon‘ble Chief Justice of India And His Lordships Companion Judges of the Supreme
Court of India.

The Humble Petition on behalf of Petitioner above named.

MOST RESPECTFULLY SHOWETH:-

1. That the petitioner is desirous of filing the present Curative Petition against the Judgment
and Final Order dated ________ passed in Review Petition (Civil) No. _______ in SLP
28

(Civil) No. ________ which was dismissed by this Hon‘ble Court vide Judgment and Final
Order dated ________.

2. QUESTION OF LAW:

In the present Review Petition the following questions of law of general public importance
arise for the consideration of this Hon‘ble Court;

1. (a)  Whether the Court is justified to refuse the decree for divorce when advocates
appearing for both the sides argued and submitted that since 1976 there is no
cohabitation between the parties and there is no chance of reunion and therefore there
is no harm if the decree for divorce is passed in favour of the petitioner husband?
2. (b)  Whether the courts below erred in holding that the petition filed by the petitioner
was barred by the principle of resjudicata ?
3. (c)  Whether the High Court as well as the courts below erred is not appreciating the
aspect that the marriage is irretrievably broken and there is no possibility of reunion
and hence the decree for divorce is to be granted?
4. (d)  Whether the courts below erred in holding that the ground of desertion is not
proved and cannot be taken?
5. (e)  Whether efflux of time and admitted fact that the cohabitation is not resumed is
not sufficient to grant decree of divorce?

3. GROUNDS

That the petitioner is filing the present Curative Petition on the following amongst other
grounds:-

A .................B..................C.................. D ................

The Grounds mentioned in the curative petition had been taken in the Review Petition and
that it was dismissed by circulation; and that no new grounds have been taken in this curative
petition.

4. MAIN PRAYER:-

It is therefore, most respectfully prays to this Hon‘ble Court may graciously be pleased to:

1. (a)  reconsider the Judgment and Final Order dated ________ passed by the Hon‘ble
Supreme Court of India in Review Petition No. _________.
2. (b)  Pass such other order or orders as this Hon‘ble Court may deem fit and proper in
the interest of justice.

28

AND FOR THIS ACT OF KINDNESS THE PETITIONER AS IN DUTY BOUND SHALL
EVERY PRAY.

FILED BY:-
29

FILED ON :- _______ 2010

NEW DELHI ADVOCATE FOR THE PETITIONER

[NOTE: To be supported by an affidavit]

NOTE: To be supported by affidavit of the petitioner and a certificate by Senior Advocate

CERTIFICATE

Certified that the Curative Petition has been examined by me and it appears to that following
very strong grounds exists for facts of the curative parties.
The curative Petition fulfils the requirements as laid down in the judgment dated ________ in
the matter of Rupa Ashok Hurra Vs. Ashok Hurra [W.P. (C) No. 509/97 etc.] reported as
2002 (4) SCC 388, as the Review Petition was dismissed by Circulation and the grounds
taken herein had been taken in the review petition and a specific averment has been made in
the Curative Petition to this effect.

**** *

Short Questions- Answers

Q. Draft a notice to quit from Lease.

ANS.

(Notice under Transfer of Property Act) (Notice to quit from Lease)

Dear Sir,
I hereby give you notice to quit and deliver up to you on the ............day of ......next

possession of the premises, situate at..........Road in the city of ............which I hold of you as a
tenant;

Dated the ..........day of .......20.........

29

Yours faithfully (Signed) XY

Tenant

PLEADINGS UNDER CRIMINAL LAW

Q. Draft an Application for Bail under section 437 Cr.P.C. Distinguish between
Bail and Bond.

ANS.
30

PLEADINGS UNDER CRIMINAL LAW IN THE COURT OF METROPOLITAN

MAGISTRATE (DISTRICT __________),

DELHI
BAIL APPLICATION NO. __________ OF 2017

IN THE MATTER OF:

STATE
X _______ S/o _______ R/o __________ ..... APPLICANT

FIR NO. ________ U/S_________________ POLICE STATION _____________________

APPLICATION FOR GRANT OF BAIL UNDER SECTION 437 OF Cr.P.C.

The accused above named most respectfully showeth :-

1. That the accused above named was arrested by the police on 1st January, 2010 and is
in

judicial custody since then. It is alleged that on 1st January, 2010, the accused was
suspiciously moving on Baba Kharak Singh Marg, New Delhi when the police
apprehended him, conducted the search an recovered 3 gms. of smack from his
pocket.

2. That the accused has been falsely implicated in the instant case and he has nothing to
do with the alleged offence.
3. That nothing was recovered from the possession of the accused or at his instance and
the so called case property has been planted upon the accused.
4. That the accused is a law abiding citizen and belongs to a very respectable family. He
has never indulged in any illegal activities and commands respect and admiration his
locality.
5. That in November, 2015, the accused found some persons selling smack near
Hanuman Mandir Cannaught Place, New Delhi. The accused immediately reported
the mater to police as the result of which police also arrested some of the persons.
Since that time, those persons who were arrested at the instance of the accused were
threatening the accused to falsely implicate him in a criminal case in collusion with
police. The accused

VERSUS

COMPLAINANT

30

made a complaint in this regard to the Dy. Commissioner of Police, true copy of which is

annexed hereto as Annexure-A.

31

6. That after the said complaint, the accused was called by the Vigilance Department,
Delhi

Police who enquired into his complaint. True copy of the said notice issued by the

Vigilance Cell is enclosed herewith as Annexure-B.

7. That it is unimaginable that the accused who made a complaint against the sellers of

smack, would himself indulge in such activities.

8. That the accused is a permanent resident of Delhi and there are no chance of his

absconding in case he is released on bail.

9. That there is no chance of the accused absconding or tempering with the prosecution

evidence in the event of release on bail.

10. That the accused undertakes to join the investigation as and when directed to do so.
11. That the accused is not a previous convict and has not been involved in any case of
this

nature except the present case.

12. That the present case is a result of clear manipulation by the police.
13. That the accused from all accounts is an innocent person.

It is therefore respectfully prayed that the accused may kindly be released on bail
during the pendency of this case.

Applicant Through Advocate

New Delhi.
Dated : .................

Note: to be supported by affidavit of Pairokar and Vakalatnama duly attested by Jail

Authorities.

**** *

31

Q. Draft an Application for the grant of Anticipatory Bail under section 438
Cr.P.C.
32

ANS. IN THE COURT OF SESSIONS JUDGE (DISTRICT __________), DELHI TIS

HAZARI COURTS DELHI

ANTICIPATORY BAIL APPLICATION NO _______ OF 2017

IN THE MATTER OF;-

X _______ S/o _______ R/o __________ ..... APPLICANT

STATE

VERSUS ....

COMPLAINANT

FIR NO. _______ OF 2017 UNDER SECTION:______________________ POLICE

STATION______________________

APPLICATION FOR THE GRANT OF ANTICIPATORY BAIL UNDER SECTION 438

OF THE CODE OF CRIMINAL PROCEDURE, 1973

The Applicant above named most respectfully submits as under:-

1. That the Applicant is a young man aged 20 years residing at ______, Delhi. He is also
a Director of M/s. ABC Ltd. which is a very leading company engaged in the
manufacture of electrical appliances.
2. The Applicant is a very respectable person of his locality and is a peace loving citizen.
3. That the Applicant was on friendly terms with Miss Y major daughter of the
Complainant. However, the relationship of the Applicant with Miss Y was not liked
by her family members so much so that they had stopped Y from meeting the
Applicant and had threatened her that in case she meet the Applicant, they will
implicate the Applicant

in some false criminal case.

4. That Miss. Y had also written number of letters to the Applicant calling upon him to

marry her as she had feared that her family members may sabotage her relationship
with the Applicant, which shows that family members of Miss. Y were deadly against
the Applicant and were looking for some opportunity to falsely implicated him in
some false criminal case in order to pressurize him to severe his relationship with Y.

5. That on 5th January, 2010, the Applicant had gone to meet his friend, who is residing
in the neighborhood of Miss. Y. When the Applicant reached the house of his friend,
he was suddenly attacked by father, uncle and brother of Miss. Y as a result of which
33

he fell down and sustained abrasion/injuries. The Applicant‘s friend came to the
rescue of the

32

Applicant and with great difficulty; the Applicant was saved from the clutches of Miss.

Y‘s family members by other neighbors and passersby.

6. That the police has registered a false FIR against the Applicant. A bare on perusal of
the

said FIR reveals that the brother of Miss. Y attacked the Applicant and not vice-versa.
As a mater of fact, the aggressor has manipulated with the police and has falsely
implicated the Applicant. The Applicant is in fact the victim at the hands of the
Complainants who have conspired with the police and got this case registered against
them. The Photostat copies of the letters written by Miss. Y to the Applicant are
annexed herewith.

7. That the FIR registered against the Applicant is absolutely false and incorrect. The
Applicant is not at all involved in the alleged offence and has been falsely implicated
by the police.
8. That the Applicant apprehends that he may be arrested in pursuance of the aforesaid
false and fictitious complaint.
9. That the police officials have visited the premises of the Applicant in his absence and
there is every likelihood of his being arrested in the instant case.
10. That the Applicant undertakes to join the investigation as and when directed to do so.
11. That the Applicant is a permanent resident of Delhi and there is no chance of his

absconding in case he is granted anticipatory bail.

12. That the Applicant has never been involved in any criminal case except the present
one.

PRAYER

It is, therefore most respectfully prayed that the Applicant be released on bail in the

event of his arrest and appropriate directions in this regard may please by sent to the
concerned Investigating officer/S.H.O. Any other order/orders which this Hon‘ble Court may
be deem fit and proper on the facts and circumstances of this case may also be.

New Delhi.
Dated :______________

THROUGH

**** *
34

APPLICANT

ADVOCATE

[Note: To be supported by affidavit]

33

IN THE COURT OF PRINCIPAL JUDGE, FAMILY COURT, DELHI. CRIMINAL

COMPLAINT NO. __________ OF 2017

IN THE MATTER OF:-

1. Smt. X _______ W/o Z._________ R/o _________

2. Master R ______ S/o Z _________ R/o __________

through his mother and natural guardian Smt. X VERSUS

Z ____S/o ______R/o _____

COMPLAINANTS

RESPONDENT/ACCUSED

APPLICATION UNDER SECTION 125 OF THE CODE OF CRIMINAL PROCEDURE,

1973

The Complainant above named most respectfully submits as under:-

1. That Complainant No. 1 is the legally wedded wife of the Respondent while
Complainant No. 2 is the legitimate son of the Respondent. Both the Complainants
are residing within the jurisdiction of this Hon‘ble Court.
2. That Complainant No.1 was married to the Respondent according to the Hindu Rites
and ceremonies on ____________- at New Delhi and Complainant No. 2 was born
out of their wedlock on __________. Complainant No. 2 is staying with Complainant
No. 1 at present.
3. That Complainant No. 1 and Respondent stayed together after their marriage and for
the last two years proceeding________, they were staying at Delhi.
4. That sometime during the period June-July, _______, the matrimonial life of
Complainant No. 1 and the Respondent got disturbed on account of the illegitimate
affair of the Respondent with a girl named Mrs. A. Complainant No. 1 made best
possible efforts to persuade the Respondent to desist from indulging in an affair
outside their wedlock. However, the same had no effect on the Respondent. Rather,
the behavior of the Respondent towards Complainant No. 1 became rude, cruel and
oppressive, and finally on ___________, the Respondent compelled Complainant No.
1 to leave the matrimonial home along with Complainant No. 2, since then, the
Complainants are staying with Complainant No. 1‟s father.
35

5. That the Complainant No.1 has made repeated attempts to join the Respondent in the
matrimonial home. However, the Respondent has refused to take back the
Complainants and has clearly informed Complainant No. 1 that he was planning to
marry Mrs. A though the same is not permissible under law. As such, the Respondent
has deserted the Complainants without any reasonable cause.
6. That the Respondent is liable to maintain the Complainants who have repeatedly
requested the Respondent to provide them the appropriate maintenance. However, the
Respondent has not only refused/neglected to maintain the Complainants, but has also

34

refused to ever part with/return the articles belonging to Complainant No. 1 towards the

dowry and Stridhan which are lying at the Respondent‘s house.

7. That the Respondent is a man of status and is working as a Wing Commander in

Indian

Air Force. He is getting monthly emoluments of about Rs. _____ per month and as
such has sufficient means to maintain himself and the Complainants. He has no
encumbrances or liabilities except that of maintenance of the Complainants.

8. That Complainant No. 1 has no independent source of livelihood and as such is

unable to maintain herself. She is staying with her father at Delhi and as such both the
Complainants are dependant upon him.
9. That Complainant No. 2 is a minor and is also staying with Complainant No. 1. He is
studying in Delhi Public School, New Delhi, and his monthly expenditure including
school fees, dresses etc. etc. is more than Rs. ______ Apart form this, Complainant
No. 1 has also kept a maidservant to properly look after Complainant No. 2 and is
paying her Rs. ____ per month which is presently being borne by her father.
10. That the Complainants are residing at Delhi. This Hon‘ble Court therefore is
competent to entertain and try this petition.

PRAYER

It is, therefore, most respectfully prayed that the orders for maintenance of the
Complainants be passed in favour of the Complainant and against the Respondent
directing the Respondent to pay the monthly allowance of Rs. __ towards the
maintenance of Complainant No.1 and Rs _____towards the maintenance of
Complainant No. 2. The costs of these proceedings be also awarded to the Petitioner.

Dated : _____________

short title of the complaint case.

THROUGH
36

COMPLAINANTS

ADVOCATE

(Note:- An affidavit is to be attached to this petition)

Note: List of witnesses to be mentioned at the end of the complaint or separately after writing

35

COMPLAINANT

IN THE COURT OF SH..................., PRINCIPAL JUDGE, FAMILY COURT, DELHI

Application No......../2016

IN THE MATTER OF:

Sakshi & Anr. ... Applicant

Vs.
Manoj ... Respondent

REPLY ON BEHALF OF RESPONDENT TO THE APPLICATION U/S 125 Cr.P.C.

MOST RESPECTFULLY SHOWETH:

Preliminary Objections:

1. That, the contents of the application u/s 125 Cr.P.C. are wrong and vehemently
denied, unless specifically admitted.
2. That, the petitioner has left the matrimonial company of the respondent without any
justifiable cause and has also forcibly taken away his only son, because of which not
only child is being deprived of the love and affection of his father, but even the
respondent is being deprived of the company of his only child. It is submitted that the
respondent wishes to continue his matrimonial ties with his wife, however, it is the
applicant, who, due to the reasons best known to her, has withdrawn from the
matrimonial company. Nor, it is further respectfully submitted that, she is coming
forward to mediation, so as to peacefully settle the matter, which itself reflects her
malafides. It is pertinent to mention here that when at the insistence of Ld. ASJ, KKD,
before whom the application, on behalf of the husband and his 10 other relatives, for
anticipatory bail in the FIR registered at the instance of the petitioner/wife for the
offences punishable u/s 406/498 IPC, was filled, referred the case for mediation, the
same was made to fail by demanding exorbitant amount of Rs. 50 lakhs. It is pertinent
to mention here that father of the respondent is simply a Govt. servant, working as Sr.
Supervisor. Therefore, such a demand was deliberately made to harass and humiliate
the respondent/husband, instead of peacefully compromising the matter.
3. That, at the time of marriage with the applicant, the respondent was earning his
livelihood by taking tuitions, which was not to the liking of the wife. Moreover, she
37

was very suspicious in nature and always doubted the integrity of her husband vis-à-
vis his girl-students. Therefore, she was in the habit of making calls to students, so as
to remove her said doubts, pursuant to which she used to ask very ridiculous and
uncomfortable questions from those students. Consequently, in order to save his
matrimonial home, the respondent was left with no option but to discontinue those
kind of tuitions of girl-

36

students. It is submitted that that led to spoiling of the image of the respondent at the hands of
his wife. Not only this, the petitioner/wife further asked the husband to look for another
profession/business, since the tuitions, as source of earning for the respondent, was not to her
liking, as stated above. It is submitted that it is the applicant, who persuaded the respondent
to opt for the profession of property dealing, contrary to his (husband‘s) stature and taste, the
respondent being always interesting in academics. It is worth mentioning here that earlier
even the wife used to contribute in that profession of property dealing, because of which
respondent used to earn something, however, after her leaving the matrimonial home and on
account of drastic recession in properties the respondent is presently virtually starving,
having no income at all. It is further pertinent to mention here that as on today he is not even
able to meet his basic necessities, after having returned to his earlier source of income of
̳tuitions‘.

4. That, atrocities of the applicant are further apparent from the very fact that in
collusion with her family members, more particularly her father, who happens to be a
Govt. employee, as stated above, an FIR No. xyz/16 with PS Shakurpur u/s
406/498A/34 IPC, was got registered at her instance, wherein she has made false
allegations, the contents of which are self explanatory in nature, as far as their
implausibility is concerned and the same are reproduced as under for ready reference:

--------------------------------- ---------------------------------

5. That, the respondent and his other family members have been deliberately falsely
implicated in the case at the instance of the applicant, who is having matrimonial
dispute with her husband, on account of temperamental differences, which is apparent
from bare perusal of her complaint itself. It is submitted that Smt. A is sister of the
husband; Smt. B, is mother-in-law of the applicant; Mr. C, Mr. D, Mr. E and Mr. F
respectively are brothers of the respondent; Smt. G and Smt. H, are Sisters in law of
the applicant; and Smt. J, is sister of father of the respondent. It is pertinent to
mention here that all of them, except respondent, are residing separately from the
applicant and, as such, by any stretch of imagination cannot be said to have
committed any offence against the applicant, which itself reflects falsity of those
allegations and the perversity of the petitioner herein roping them all due to
revengeful attitude against the respondent on account of her temperamental
differences.
6. That, it is further respectfully submitted that, the nature of above allegations, as made
by the applicant in her complaint qua dowry demand and the so called expenditure
incurred by her family members during the matrimonial ceremonies are apparently
not commensurate to her own status, as her father is simply a Government employee
38

and her mother is a housewife, more particularly when she has three other younger
sisters and one brother. This aspect also shows that the only purpose of the applicant
is to harass and humiliate the respondent by filing multiple litigations, when in reality
she does not need any maintenance, as her father is owning lot of properties and she
herself is also earning Rs. 25,000/- from the profession of beauty parlor, besides
getting rent @ Rs. 15,000/- per

month from the flat no. XYZ, ABC Vihar, Delhi, which was purchased jointly by the
respondent and the applicant, but in the name of the applicant, during their matrimonial life
prior to separation, wherein respondent had contributed 60% of the consideration.

7. That, it is pertinent to mention here that, in her said complaint the applicant has stated
that 1500 number of people (approx.) attended the marriage function (which is
factually incorrect), for which Rs.6,50,000/- were borne by her father for the entire
expenses, which amount is highly improbable (being quite less) keeping in view the
gathering. It is submitted that this itself reflects that the applicant has exaggerated the
things to such an extent, so as to bring the household dispute, if any, within the four
corners of an offence under the IPC, which is not made out on the facts of the present
case. It is submitted that keeping in view the source of earning of applicant family
(which is a government service only), the false allegations of dowry/expenses have
been made, without any corroborative evidence to that effect. Therefore, this aspect
also reflects the ulterior motive of the applicant in filing so many litigations
deliberately.
8. That, the allegations of the adultery, as made against the respondent, are also on the
face of it highly implausible, more particularly because of the fact that they are
against the wife of respondent‘s own brother, since none of such kind of allegations
have either been made by his brother and/or by any other family members including
his parents. It is reiterated that such an allegation, if having any kind of truth in it,
would offend even other family members of the respondent also and more particularly
his that brother. However, since that allegation is nothing but figment of
imagination/perversity on the part of the applicant there is no truth in it. This aspect
further reflects ulterior motive of the wife in filing such kind of litigations against the
respondent. 9. That, the other allegations in the said FIR, made against the respondent
qua his not taking care of applicant (more particularly during her pregnancy) and even
his own child (who happens to be first baby in his family), are apparently based on
surmises and conjectures and have been made deliberately to prejudice the law
enforcing authorities. Similarly, similar allegations made against the respondent and
his other family members are not only false, but highly improbable and implausible,
more particularly when all of those family members are living altogether separately
and leading their own respective lives. It is also worth mentioning here that none of
those family members have ever made any alleged demand of dowry from their
respective in-laws, therefore, it cannot be said that they would do such kind of thing
with the in-laws of the respondent. This aspect also substantiates the said contentions
of the respondent.

10. That, the allegation of even watching of pornography by the respondent along with his
about 4 years old child, as made in that FIR, is also highly improbable, which also shows as
to how far the applicant is perverse in making allegations to such an extent. In respect of the
39

allegation of abortion of the first child on account of negligence of the respondent and his
family members, it is submitted that, the same are absolutely false and baseless, since the
applicant is suffering from an ailment called Thalassemia, which she has inherited from her
mother, which is a form of inherited autosomal recessive blood disorders characterized by
abnormal formation of haemoglobin. The abnormal

38

haemoglobin formed results in improper oxygen transport and destruction of red blood cells.
It is submitted that the said abortion was result of that ailment, as informed to the respondent.
In fact, it is respectfully submitted that, this ailment of the applicant was concealed by her
parents at the time of her marriage from the respondent husband and his family, but as a
loving husband this concealment was ignored and the same was never brought into their
relationship of husband-wife. On the other hand, the applicant has made such frivolous
allegations due to ulterior motives. In respect of other allegations, it is submitted that, the
respondent craves leave to make the submissions during the course of oral arguments,
without burdening/ making bulky the present reply. It is respectfully submitted that these
submissions clearly reflect as to how much the respondent loved the applicant and wanted to
continue with the relationship, but it was wife, who, due to the reasons best known to her, is
bent upon in breaking the same.

11. That, in fact, right from the beginning, whenever there was a quarrel between the husband
and wife, on account of incompatibility on the part of applicant, she used to threat that she
would see that the husband and his other family members are behind the bars, which she has
done by way of the getting registered the above mentioned FIR. Therefore, this approach of
the applicant also does not entitle her the relief prayed in the present application.

Reply on merits

1&2. That the contents of paras 1&2 of the application need no comments.
3. That the contents of para 3 of the application are wrong and denied and what is stated
above is reiterated. It is denied that there was any effort whatsoever on the part of the
applicant in saving the matrimonial life. It is pertinent to mention here that after the marriage
between the parties respondent got separated from his family and started living at DEF,
Vihar, Delhi (where presently the respondent/husband is residing, while taking financial and
other help from his mother, who is living altogether separately with her youngest son).
However, at the instance of her family members, including her father and sisters, on account
of her incompatible nature, she left the matrimonial home in April, 2014, basically on the
ground that the husband is not earning as per her expectations. It is pertinent to mention here
that for that very reason she made respondent husband to change even his profession of
tuitions to property dealing. Not only this another bone of contention was that the husband
was not ready to shift to the side/area of applicant‘s parental home, after procuring his share
from his mother from the property. Therefore, it is denied that the respondent threw the
applicant out of matrimonial home and that subjected her to any kind of harassment
whatsoever.
4. That the contents of para 4 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent ever backed out from his any kind of
responsibility out of his limited resources. It is further denied that there was any question of
40

the applicant requesting the respondent in this regard.

5. That the contents of para 5 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the application is not capable of sustaining herself on

39

her own. In this regard the contents of above mentioned para no. 6 of preliminary objections
are reiterated.
6. That the contents of para 6 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent refused any kind of support to the
applicant, however, due to his present pathetic situation, because of his traumatic mental
state, deep depression and mental agony, on account of the conduct of applicant, the
respondent is not in a position to sustain even himself. It is reiterated that even for his food
and other day to day needs he has to look to his mother.

7. That the contents of para 7 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the applicant along with her son is living in misery. In this
regard what is stated in para no. 6 of preliminary objections is reiterated
8 & 9. That the contents of paras 8&9 of the application are admitted to the extent they are
matter of record, but rest of the contents are wrong and denied and what is stated above is
reiterated.

10. That the contents of para 10 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent is a man of means and that he has
neglected his any kind duty and responsibility whatsoever. Rather, the facts are other way
round. Due to her incompatible attitude and selfish nature (always thinking about her own
comforts) she left the matrimonial home, which is further substantiated from the very fact
that husband is till date ready for mediation but the wife, in connivance with her family
members, more particularly her father, is not willing at all.

11. That the contents of para 11 of the application are wrong and denied and what is stated
above is reiterated.
12. That the contents of para 12 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the husband owns the properties mentioned in this para.
This fact may be verified even from the official records of the Govt.

13. That the contents of para 13 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent is earning any rental income, more
particularly, when he is not owning any property at all. Not only this, it is also denied that the
respondent is engaged in the business of property dealing. In this regard what is stated in the
opening paras of this reply is reiterated.

14. That the contents of para 14 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent owns the properties mentioned in this para
and/or that he is earning any rental income. This fact may also be verified even from the
official records of the Govt.
41

15. That the contents of para 15 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the respondent is leading the lifestyle, as stated in this
para. . It is denied that the respondent owns the properties mentioned in this para, including
the car and the bike. This fact may also be verified even from the official records of the Govt.
It is also denied that he visits any restaurant whatsoever.

16. That the contents of para 16 of the application are wrong and denied and what is stated
above is reiterated. It is denied that the petitioner is having any chit fund whatsoever.

17. That the contents of para 17of the application are wrong and denied and what is stated
above is reiterated. In fact contents of para 17 of the application show the perversity and sick
attitude of the wife. It is denied that any criminal case whatsoever was registered against the
respondent and/or his family members, as stated in this para. It is further denied that the
respondent and his family members are attuned to the Court proceedings. 18&19. That the
contents of paras 18&19 of the application are wrong and denied and what is stated above is
reiterated. It is denied that the applicant is not able to maintain herself. It is further denied
that the applicant is undergoing depression and/or mental agony. Rather the facts are other
way round. The applicant is enjoying her life, having a kind of Lakshya (aim) in her life in
the form of her son, whose love and affection the respondent has been denied, because of
which he is under deep depression and in a traumatic state.

20. That the contents of para 20 of the application are wrong and denied and what is stated
above is reiterated. It is reiterated that the respondent is not able to even sustain himself,
because of the facts stated above.
21. That last para under the title „PRAYER‟ is prayer clause, which is liable to be
rejected/dismissed, in view of foregoing facts, with costs.

PRAYER

It is therefore respectfully submitted that the present application be dismissed with costs, in
the interests of justice. New Delhi Respondent Through Advocate

REJOINDER TO THE REPLY TO THE APPLICATION UNDER SECTION 125 Cr.PC

IN THE COURT OF PRINCIPAL JUDGE, FAMILY COURT, DELHI.

IN RE : Ms. X

Mr. Y

VS.

APPLICANT

RESPONDENT

REJOINDER TO THE REPLY FILED ON BEHLAF OF THE RESPONDENTTO THE

PETITION U/S 125 CR.P.C
42

MOST RESPECTFULLY SHOWETH:

41

REJOINDER TO THE PRELIMINARY OBJECTIONS:

1. That contents of para 1 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is submitted that
despite the applicant being harassed for bringing insufficient dowry she did not opt for
getting registered a case against her husband and his other family members for the offences
punishable u/s 406 & 498A IPC with the intention of sorting out the matter peacefully and in
fact persuaded this Hon‟ble Court to direct the respondent to keep her (petitioner) in his
matrimonial company, but instead of honouring the same he again kicked her out of the
matrimonial home due to ulterior motives in connivance with other family members. Not
only this even a divorce petition has been filed by the respondent against the petitioner.

2. That contents of para 2 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is reiterated that the
respondent not only refused and neglected his marital obligations towards the applicant but
has also withdrawn in connivance with his other family members from the society of his wife
due to ulterior motives, since she failed to fulfill their expectations of bringing sufficient
dowry.

3. That contents of para 3 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. the conduct of the
respondent and his family members itself substantiates the allegations of the applicant which
are denied by the respondent in his reply. It is submitted that it is not denied that the applicant
is a well qualified person, however, by misrepresenting about the education of the respondent
she was enticed to get married. However, despite that keeping in view the Hindu Culture the
applicant forgot the concealment and deception played against her at the instance of
respondent and his family members. But when they found that their expectations of sufficient
dowry are not being fulfilled they started harassing her in order to get rid off her. It is worth
mentioning here that the matter was never brought to the notice of the police, however, when
the directions of this Hon‘ble Court to the respondent to resume the marital relationship were
not complied with and in turn a divorce petition was filed by the husband, intentions of not
keeping her were made crystal clear. In this scenario the applicant had no option but to bring
it to the notice of police about the atrocities committed by the respondent and his family
members.

4-5 That contents of paras 4 & 5 of the preliminary objections are absolutely false and
vehemently denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is
respectfully submitted that the kind of allegations made in these paras themselves reflect the
false excuses being taken by the respondent, since they did not provide any kind of
justification to the husband to leave the applicant and take divorce from her. It is vehemently
denied that the applicant ever insisted the respondent to leave the job in Jaipur and to shift
43

Delhi with the help and guidance of her father. Rather the facts are other way round. It is
further denied that the applicant ever behaved like a schizophrenic person. Rather the
husband never took care of the

42

applicant and left her at the mercy of her parents at the time of delivery of the child and as
such the expenditure for that was borne by them (applicant‘s parent).

6. That contents of para 6 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is vehemently
denied that the fact that the respondent stayed at the parental house of the respondent for six
months reflects his caring nature. In fact respondent was totally dependent upon applicant‘s
family during that period, having no intention to stay at any other place in Delhi. In order to
save his money the respondent stayed at the applicant‘s parents‟ house, who had no option
but to accommodate him, he being their son in law. With regard to the statement, as made in
the reply, to the effect that the respondent was forced to drink and smoke by applicant‘s elder
brother, it is submitted that it is not only implausible, but also reflects the character of the
husband and as such needs no comment except a denial on the face of human nature on this
aspect of this matter.

7. That contents of para 7 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is needles to
mention that facts qua harassment to the respondent, the way it is narrated in this para, are
highly implausible and improbable hence need mere denial without any explanation.

8. That contents of para 8 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. The conduct of the
respondent, despite the directions of this Hon‘ble Court to resume the matrimonial
relationship, itself belies the statements as made in this para. It is specifically denied that the
respondent ever tried to contact the applicant, rather with the intention of leaving her he
deserted her for all the time to come.

9. That contents of para 9 of the preliminary objections are absolutely false and vehemently
denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is vehemently
denied that either the applicant or her father ever told the respondent to come to Delhi and
stay there. Rather family members of the applicant are strictly against in keeping the
respondent as ―Ghar Jamai‖, since they believe in Hindu Culture, wherein the daughter
looks goods at her matrimonial home only.

10. That contents of para 10 of the preliminary objections are absolutely false and
vehemently denied and what is stated in the application u/s 125 Cr.P.C is reiterated. It is
denied that the applicant is working as sales man anywhere and earning about Rs. 2,000/- per
month. With regard to the neglect and refusal on the part of the respondent to maintain the
applicant it is submitted that his conduct as narrated in the application and before this
Hon‘ble Court is self explanatory. With regard to the salary certificate of the respondent it is
submitted that since the same has not been supplied to the applicant nothing can be said about
that, but in this regard what is stated in the corresponding para of the application is reiterated.
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REJOINDER TO REPLY ON MERITS

43

1-2. That the contents of paras 1 & 2 need no reply.

3. That the contents of para 3 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application is reiterated. In any case acceptance of FD of Rs.
20,000/- in the name of the applicant is not denied by the respondent, though besides that
they had taken the cash and jewellery also, regarding which even statement has been made by
them before the ―Crime against Women Cell‖.
4. That the contents of para 4 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application is reiterated. Admission by the respondent of
being only 10th passed clearly reflects that facts were misrepresented before the applicant
and her family members before marriage. However despite all these concealments the
petitioner wanted to continue with the relationship and did her best and a daughter was also
born out of the said wedlock. But the respondent and his family members out of greed did not
intend to keep the applicant any more when they found that their expectation of sufficient
dowry would not be fulfilled.
5. That the contents of para 5 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application and in the rejoinder to the preliminary objections
is reiterated.
6. That the contents of para 6 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application is reiterated. With regard to the denial by the
respondent of the applicant finding it difficult to maintain herself and her daughter, it needs
no reply in view of today‘s expensive world, more particularly when child is too small. With
regard to the contention of respondent‘s earning it is submitted that the applicant may be put
to strict proof of the same. In any case it is submitted that it is shameful on the part of a father
to take such kind of stance in order to avoid his liability to maintain his own child.
7. That the contents of para 7 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application and rejoinder to the preliminary objections is
reiterated. With regard to the denial of the fact on the part of applicant‘s father to reconcile
the matter it is submitted that conduct of the respondent itself before this Hon‘ble Court is
self explanatory.
8. That the contents of para 7 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application and rejoinder to the preliminary objections is
reiterated. It is denied that the applicant no. 1 committed any kind of cruelty by not allowing
the respondent to meet his daughter. Rather the things are other way round he always ignored
her, which is also apparent from the present reply, wherein false and frivolous pleas are being
taken to avoid the liability to maintain the daughter. Not only this there are other ways also to
achieve the purpose of meeting the daughter, which the respondent has never followed.
9. That the contents of para 9 of the reply on merits are wrong and denied and what is stated
in the corresponding para of the application and rejoinder to the preliminary objections is
reiterated. It is specifically denied the said FDR of Rs. 20,000/- was encashed by the
petitioner no. 1 and utilized by her. It is reiterated that the same was appropriated by the
respondent and his parents.
10. That the contents of para 10 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
45

is reiterated. The conduct of the respondent before this Hon‘ble Court and his subsequent
filing

44

of divorce petition belies his stand that his ready and willing to welcome both the petitioners
at his house in Jaipur.
11. That the contents of para 11 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
is reiterated.

12. That the contents of para 12 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
is reiterated. It is submitted that the respondent put to strict proof of the contents of this para
of the reply, failing which appropriate action may kindly be taken against him.

13. That the contents of para 13 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
is reiterated.
14. That the contents of para 14 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
and in foregoing paras is reiterated.

15. That the contents of para 15 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
and in foregoing paras is reiterated.
16. That the contents of para 16 of the reply on merits are wrong and denied and what is
stated in the corresponding para of the application and rejoinder to the preliminary objections
and in foregoing paras is reiterated. The last para is a prayer, which in view of foregoing
submissions is liable to be rejected and consequently what is stated in the prayer clause of the
application is reiterated.

Very Short Question- Answers:

Q. What are material facts?

ANS. The second fundamental rule of pleading is that every pleading shall contain only a
statement of material facts on which the party pleading relies for his claim or defence. This
rule has been enunciated in Order 6, Rule 2 of the Code of Civil Procedure. The rule that the
material facts should be not a technically and that an omission to observe it may increase the
difficulty in the Court‘s task of ascertaining the rights of the parties. Further, every pleading
must state facts which are material at the present stage of the suit. Now, the question arises
what is material fact? The fact which is essential to the Plaintiff‘s cause of action or to the
defendant‘s defence which each proves or fail is material fact.

APPLICANT THROUGH COUNSEL

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Now, the question that what facts are material, is not very easy to answer. However, it can be
said that fact is material for the pleading of a party which he is bound to prove at the trial
unless admitted by the other party before he can succeed in his claim or defence. If one is in
reasonable doubt about a particular fact as a material fact it is better for him to plead that fact
rather than omit it because unless a fact is pleaded he shall not be allowed to prove it at the
hearing of the suit. A plea of fraud and misrepresentation in a suit must set forth full
particulars of fraud and misrepresentation, because these particulars constitute material facts
unless raised by the plaintiff or the defendant in his pleading, he will not be allowed to prove
at the trial.

Q. ANS.

Explain the supplementary pleadings.

Pleadings form the foundation for any case in the court of law. It is a statement in writing
filed by the counsel of plaintiff stating his contentions on the case, on the basis of which the
defendant shall file the written statement defending himself and explaining why the plaintiff‘s
contentions should not prevail. Sometimes the plaintiff, having filed his plaint, may, with the
leave of the court, file a statement or the court may require him to file a written statement. In
such cases, the written statement forms part of the plaintiff‘s pleadings. Similarly, there are
cases in which the defendant having filed his written statement may, with the leave of the
court, file an additional written statement or the Court may require him to do so. In such
cases the additional written statement also forms part of the defendant‘s pleadings. This is the
first stage of a suit. Code of Civil Procedure (CPC) in order 6, Rule 1 defines pleadings as a
written statement or a plaint. The plaintiff‘s written statement and the defendant‘s additional
written statement are termed supplemental pleadings.

What do you mean by attestation?

“Attestation” means the signing of a document to signify that the attestator is a witness to
the execution of the document. Under section 63 (c) of the Succession Act, an attesting
witness is one who signs the document in the presence of the executant, after seeing the
execution of the document. Attestation is the act of signing by a witness to the signature of
another of a statement that a document was signed in the presence of such witness. To attest
is to bear witness to a fact. The essential conditions of a valid attestation under section 3 of
the Transfer of Property Act, 1882, are: (1) two or more witnesses have seen the executants
sign the instrument or have received from him a personal acknowledgment of his signature;
(2) with a view to attest or to bear witness to this fact that each of them has signed the
instrument in the presence of the executants.

What do you mean by constructive admissions?

Q.
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ANS. Rules of constructive admission arises when either the denials are improper or non-
filling of written statement. Denials would be improper when they violate the provisions as
contained in Rules 3 and 4 of Order VIII of C.P.C. which require the denials to be specific
and not evasive. Sub-rule (1) of Rule 5 of Order VIII provides that every allegation of fact in
the plaint – (i) if not denied specifically, or (ii) if not denied by necessary implication, or (iii)
if not stated to be not admitted, in the written statement it shall be taken to be admitted by the
defendant. In such a situation, the admission itself being proof, no other proof is necessary.

Q. What do you mean by denials?

ANS. It shall not serve the purpose if a defendant in his written statement makes general
denial of the pleas and facts alleged by the plaintiff. The defendant should deal specifically
with each and every allegation of fact of which he does not admit the truth except damages.

Q. Define Complaint with its essentials.

ANS. A complaint in Cr.P.C means a complaint made to a magistrate. It is defined in

Section 2(d) of Cr.P.C. As per the section it means any allegation made orally or in writing to
a Magistrate, with a view to his taking action under this Code that some person, whether
known or unknown, has committed an offence, but does not include a police report.

Essential Requirements of a complaint:

Q.

ANS.

It must contain an allegation of commission of offence by anyone. It can be made either

orally or in writing.
It must be made to a Magistrate.
It must be made with a view to take action by the Magistrate

Distinction between Legal Set-off and Equitable Set-off.

Legal and Equitable set-off

The distinction between legal and equitable set-off may now be noted:

 In a legal set-off, the amount claimed must be an ascertained sum of money, but in
an equitable set-off, the claim must be allowed even with respect to an unascertained
sum of money.
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 In a legal set-off, the Court is bound to entertain and adjudicate upon the plea
when raised. In the case of an equitable set-off, however, it is not obligatory on the
Court to

47

adjudicate upon it and the defendant cannot claim it as a matter of right. The Court has the
discretion to refuse to take notice of the equitable set-off if the investigation into the equitable
claim is likely to result in delay.

 In a legal set-off, it is not necessary that the cross-demands arise out of the same
transaction, but an equitable set-off is allowed only when the cross-demands arise out
of the same transaction as the plaintiff‘s claim.
 In a legal set-off, the amount claimed to be set off must be legally recoverable and
not barred by limitation at the date of the suit, but a claim by way of equitable set-off
can be allowed even if it is barred at the date of the suit where there is fiduciary
relationship between the plaintiff and the defendant.
 If the defendant‘s claim is barred at the date of the written statement but not barred
at the date of the suit, the defendant can get an equitable set-off to the extent of the
plaintiff‘s claim only but not for the balance found due to him. In a legal set-off, the
whole claim is admissible and the defendant can even get a decree for the balance.

A legal set-off requires a Court-fee because it is a claim that might be established by a

separate suit in which a Court-fee would have to be paid. But there is no such fee
required in an equitable set-off which is for an amount that may equitably be deducted
from the claim of the plaintiff where a Court-fee has been paid on the gross amount.

CONVEYANCING
Q. What is the meaning of conveyancing? Discuss the component part of
deed in detail.

ANS. Conveyancing has been practiced as a fine art in England by a class of trained
lawyers who have specialized as conveyancers after an intensive study of the law
relating to contracts and real property. Though the term Conveyancing used by most
of the England lawyers for drafting the documents of their clients but as the years
rolled by Conveyancing got its own importance even in India too. In modern India
Draftsman plays an important role while drafting any legal documents or deeds and he
can do so if he is high qualified of law so draftsman must keep in mind all the legal
principles before preparing any legal documents or deeds.

The word ̳CONVEYANCING‘ means land transfer inter vivos i.e., between two
living persons. Conveyancing is an art of drafting deeds and legal documents whereby
any right, title or interest in tangible immovable property is transferred from one
person to another. Conveyancing is not just an ordinary art but it is thoroughly based
on legal knowledge and principles evolved over years. The term ̳Conveyancing‘ is
restricted to deeds and documents concerned with the transfer of property whereas
49

drafting carries a general meaning that of preparing any legal document or deeds or
any other business oriented documents.

48

The term ̳Conveyance‘ is used when there is transfer of ownership or legal title in a property
from one person to another. Hence, a conveyance deed is a legal document between a
transferor and a transferee, which proves that a title or ownership in the property along with
all other rights related to the property have been transferred from one person to another.

It informs that the property is free from any restrictions and disputes. Both parties sign it and
it can be produced in a court if any dispute relating to the agreement arises in future.
Deed, Conveyance and Deed of Conveyance

Deed, Conveyance and Deed of Conveyance:

The term „Deed‟, „Conveyance‟ and ̳Deed of Conveyance‟ or ̳Conveyancing‟ are frequently
used interchangeably to denote one and the same legal concept, and each is being commonly
understood to mean an instrument in writing whereby the grantor conveys to the grantee
some right, title or interest in or upon some real property . Thus, by the aforesaid expressions,
we mean each of them as document, indenture or instrument in writing. So, the terms,
̳conveyance‟, ̳conveyancing‟, ̳deed of conveyance‘ or ̳conveyancing‟, ̳deed‟, ̳document‟,
̳indenture‟ and i̳ nstrument‟ are interchangeable for the purpose of drafting of documents.

Object and Function of Conveyancing:

Movable property may be physically given and taken by actual delivery, while this is not
possible in case of property in case of immovable properties. Thus, conveyancing is that
branch of the law of transfer of property which deals with the mode and form of transfer to
which both- the transferor and the transferee have agreed upon. Its main object is to enable
the owners of real property to make voluntary transfers of their right, title and interest therein
for some specific purpose and for a specified period. Such transfers are not otherwise
possible than by conveyancing.

It incorporates the expressions of the intention of the parties to the deed of conveyance so that
accordingly it shall take effect. In case of any doubt, dispute, ambiguity and susceptibility,
the real intention of the parties may be discovered from the words, phrases and the expression
used in the deed. A transferor may have passed the property intending to pass; but if he has
not expressed himself in suitable words of the language, the deed may be defective or
susceptible of two or more constructions; and so the benefits of the transfer may be lost to the
transferee. Secondly, where any adverse claimant interposes before the transferee, may get
actual legal possession of the transferred property, it may be quite possible that the transferor
with all his willingness may not be able to help the transferee.

It helps the Court and judicial tribunals to determine any dispute if subsequently arises
between the parties to the deed. It serves the purpose of both- the transferor and the transferee
in protecting their interests. It protects the interests of the transferee from any precedent
and /or subsequent acts or omissions of the transferor or any other person claiming through or
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under him against the expressed intention of the grant and the covenant of the deed; and
likewise, the interest of the transferor is also protected from any subsequent acts or omissions
of the

transferee. It is a document of title to the property and forms the basis of a record of rights
maintained by the Government. It is, also, a documentary piece of evidence.

COMPONENTS OF DEEDS
Drafting of a deed involves the law by which parties are governed, effect of the transaction
and certainty and clarity by using appropriate words and expressions. An ordinary deed of
transfer may conveniently be divided into the following parts:

Description of the deed; Date; Parties; Recitals; Testatum; Consideration; Receipt; Operative
words; Parcels; Exception and Reservations (if any); Habendum; Covenants (if any);
Testimonium. The part of the deed which precedes the habendum is termed “the premises”.
Each of these parts will now be separately considered.

A) DESCRIPTION/NAME/TITLE OF THE DEED

All deeds should be described by the name of the transaction which they evidence, such as

“THIS DEED OF MORTGAGE”, THIS DEED OF SALE”, THIS LEASE”, THIS DEED OF
GIFT”, etc. When the deed is of a complex character and evidences different transactions
known by different legal names, or the conveyancer is not sure what name should properly be
given to it, it would be best to describe it simply as ―THIS DEED”. The description is
usually written in capitals.

B) DATE AND PLACE

After the description of the deed is stated, the date on which it is executed, thus:

“THIS LEASE made on the first day of February one thousand nine hundred and ninety
nine.”

The date of a deed is the date on which it is signed by the party or parties executing it. When
there is only one party to a deed, as in the case of Deed Poll, or when all the parties sign it on
one and the same date, or when, though there are several parties to a deed, all do not sign and
those who sign do so on one date, there is no difficulty. But if several parties to a deed sign it
on different dates, the question is which date should be entered as the date of deed. The
practice is to regard the last of such dates as the date of the deed. The date should, in order to
avoid mistake and risk of forgery, be written in words and not in figures. Figures may be
added within parenthesis.
In every case in which a deed is executed by more than one person, the date on which each
signs the deed must be shown in the deed, preferably against his signature. The place where
the deed is executed must be specified very clearly and generally at the start of document.
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C) PARTIES TO THE DEED

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1. Transferee
After the date, the names and description of the parties to the deed are mentioned. Who are
the necessary and proper parties to a deed depends on the circumstances of each case.
Although a transferee is not a necessary party, and a deed will not be invalid or ineffective if
he is not mentioned as such, except in the case of a Lease, he is certainly a proper party. It is
always advisable to make him a party.

2 Third person

Sometimes it is necessary or expedient, in order to validate a transfer or to give a complete

title to the transferee, or to avoid possible disputes or doubts in that regard, to obtain the
consent or concurrence of a third person. In such cases, such third person may also be joined
as parties.

3. Description
Full description of the parties so as to prevent difficulty of identification should follow the
name. In India, parentage, occupation and residence including Municipal or survey number,
street and city and in the case of resident of a rural area the village, sub-division, tehsil and/or
development block are generally regarded as sufficient to identify a man, but if there is any
other description which is sufficient, the same may be normally adopted. Where the
transferor is as member of a scheduled caste or scheduled tribe for whose protection the
statute places restrictions on his right to transfer it may be necessary to mention such caste or
tribe while reciting the fact of permission for the transfer having been obtained from the
competent authority.

4. Juridical Person
A party to a transfer need not be a living individual but may be a company, or association or
body of individuals or an idol or a corporation sole or aggregate, or in fact, any juridical
person capable of holding property and entering into contracts.

5. Idol
As an idol has to act through some natural person, the name of the latter should be disclosed.

6. Reference Labels of Parties

In order to avoid the repetition of the full name and description at every place, the parties are
generally referred to in the body of the deed by some easy and convenient names which
generally have reference to the character in which they join the deed, such as „the vendor‘,
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̳the purchaser‟, „the lessor‟, „the lessee‟, In order to avoid mistakes in writing words
resembling

each other for opposite parties, e.g., a combination of „mortgagor‟ and „mortgagee‟ or
̳vendor‟ and ̳vendee‟, they prefer to use a combination of „borrower‟ and „mortgagee‟, or
̳vendor‟ and ̳purchaser‟. If no such name is adopted, the parties can be referred to as ̳ the party
of the first part‟ (or ̳the first party‘), „the party of the second part‟ (or, the second party‘), ̳the
said AB‟, „the said CD‟, but is always preferable to give each party some short name for
reference. Whatever short name is adopted the party should be referred to throughout by the
same name.

The form, in which the parties will be described in the beginning of the deed, would thus be
as follows:

“This SALE DEED is made on the_______day of _______BETWEEN AB, etc. (hereinafter

called ―the Vendor‟) of the one part and CD, etc., (hereinafter called „the Purchaser‟), of
the other part.‖

If the transferor along is made a party, this clause will run as follows:

“The SALE DEED is made on the _______day of________by AB etc., (hereinafter called ̳the
Vendor‘)”. If there are more than two parties, instead of the works ―of the one part‖ and
―of the other part‖ the works ― of the first part‖, ―of the second part‖, ―of the third part‖,
etc., should be used.

D) RECITALS
Recitals are of two kinds: (1) Narrative Recitals, relates to the past history of the property
transferred and set out facts and instruments necessary to show the title and the relation of the
parties to the subject-matter of the deed; and (2) Introductory Recitals, which explain the
motive for the preparation and execution of the deed.

Form of Recitals
Recitals generally begin with the word ̳WHEREAS‘, but, when there are several recitals, one
can either repeat the word before every one of them, by beginning the second and subsequent
ones with the words ̳AND WHEREAS‘, or divide the recitals into numbered paragraphs with
the word ̳WHEREAS‘ at the top.

E) Testatum
The next part of a deed consists of the operative part. It commences with a witnessing clause
termed the ̳testatum‘, which refers to the introductory recitals of the agreement (if any) and
also states the consideration (if any) and recites acknowledgement of its receipt. The
witnessing clause usually begins with the words ̳NOW THIS DEED WITNESSES‟. These
words of testatum are of no importance as affecting the operation of the deed and their sole
use is to direct
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attention to the object which the deed is intended to serve several objects, use the words ̳as
follows‘ after the testatum, thus:
“NOW THIS DEED WITNESSES AS FOLLOWS:”

F) CONSIDERATION
As contracts are necessarily for consideration (Sec. 10 of the Contract Act), it is advisable to
express the consideration. This is necessary in many cases of transfer for ascertaining the
stamp duty payable on the deed as Sec. 27 of the Indian Stamp Act requires that the
consideration should be fully and truly set forth in the deed. The penalty for omission to
comply with these requirements is a fine which may extend to RS. 5,000 (vide Sec. 64).

G) RECEIPT
Acknowledgment of receipt of consideration may be embodied in the deed itself instead of
passing a separate receipt. Thus:

―NOW THIS DEED WITNESSES THAT in pursuance of the aforesaid agreement and in
consideration of Rs.________paid by the purchases to the vendor before the execution
hereof, the receipt of which the vendor hereby acknowledges‖.

H) OPERATIVE WORDS
Then follow the real operative words which vary according to the nature of the estate and of
the transaction.

I) PARCELS
This is a technical expression meaning description of the property transferred and it follows
the operative words. Care must be taken, on the one hand, to include in the particular
description or in general words, all the lands, etc., which are intended to pass so that no doubt
may arise as to the extent and operation of the deed; and on the other hand not insert words
which will pass more than what is intended.

Map: Sometimes it is necessary to have a map or a plan of the property in order to avoid
mistake about its identity and to indicate the actual property conveyed with greater
definiteness and precision. A map referred to in a transfer deed is treated as incorporated in
the deed, and if it is drawn to scale and demarcates the boundaries clearly it is not permissible
to attempt to correct them with reference to revenue records. Great care should be taken in
describing the property, as a slight mistake or omission may cause immense loss to a party
and if the property is described both in the body and the schedule, a conflict between the two
should be carefully avoided.

J) EXCEPTIONS AND RESERVATIONS

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All exceptions and reservations out of the property transferred should follow the parcels.
An exception is something in existence at the date of transfer which, if not expressly
accepted, would pass with the property as described in the parcels, such as trees.
A reservations is something not in existence at the date of the transfer but is newly created by
the grant, e.g. when the vendor reserves a right of way over the property. But since both
̳accepting and reserving‘ are used in practice it is immaterial whether what follows is an
exception or a reservation.

K) HABENDUM
This is familiar „to have and to hold (in Latin, habendum et tenendum) clause of the
English precedents. In India such phrases as ̳to have and hold‘ or such expressions as ̳to the
use of the purchaser‘ are not strictly necessary but there is no harm in continuing the
established practice.

L) CONVENANTS AND UNDERTAKINGS

If the parties to a transfer enter into covenants, such covenants should be entered after the
Habendum. While drafting covenants, regard should be had to the statutorily implied
covenants which operate subject to any contract to the contrary. Where several covenants
follow each other, they may run on as one sentence, each being introduced with the words
̳and also‘ or by the words F ̳ irst‘, ̳Secondly‘, etc. or they may be set out in paragraph form
with the heading.

“THE VENDOR HEREBY COVENANTS WITH THE PURCHASER AS FOLLOWS:”

It is better to put in the transferor‘s and the transferee‘s covenants separately, and any
covenants mutually entered into by the parties with each other may be inserted separately. If
the transferor‘s and transferee‘s covenants are separately mentioned in the deed, care should
be taken that no covenant which should really by the covenant of one party is entered in the
covenants of the other. For example, if a lessee is given the right to cut trees of a certain kind
and not to cut tree of a different kind, the latter covenant is a covenant by the lessee and the
former is a covenant by the lessor and both should not be inserted in one covenant by either.
When it is found inconvenient or awkward to split up, what really is one covenant into two
parts, it is better to insert such a covenant as a mutual covenant by the parties.

Sometimes the terms and conditions of a transfer cannot be conveniently separated into
transferor‘s covenants and transferee‘s covenants. In such cases, it would be better to include
all the covenants under one head as parties‘ covenants thus:

“THE PARTIES AFORESAID HERETO HEREBY MUTUALLY AGREE WITH EACH

OTHER AS FOLLOWS:”

M) TESTIMONIUM
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The last part of a deed is the testimonium which sets forth the fact of the parties having
signed the deed. This is not an essential part of the deed, but as it marks the close of the deed
there is no harm in continuing the established practice. The usual English form of testimonum
is as follows: “In witness whereof the parties hereto have hereunto set their respective hands
and seals the day and year first above written.‟

The use of seals is not common in India except in cases of companies and corporations, and
the proper form in simple language would be somewhat as follows:
„In witness whereof the parties hereto have signed this deed on the date first above written.‟

N) SIGNATURES AND ATTESTATION

After testimonium should follow the signatures of the executants and those of attesting
witnesses. If executant is not competent to contract or is a juristic person, the deed must be
signed by the person competent to contract on his or its behalf.

**** *

Q. Define gift with its essentials and also draft a gift deed. ANS. Definition of
gift:

―Gift‖ is a voluntarily transfer of personal property without consideration; a parting by

owner with property without pecuniary consideration; a voluntarily conveyance of land; on
transfer of goods, from one person to another, made gratuitously and not upon any
consideration of blood or money. The essential requisites of ̳gift‘ are capacity of doner,
intention of doner to make gift, completed delivery to or for done and acceptance of gift by
the donee.

A gift is undoubtedly a transfer which does not contain any element of consideration in any
shape or form. In fact where there is any equivalent or benefit measured in terms of money in
respect of a gift, the transaction ceases to be a gift and assumes a different colour. One should
not confuse the nature or purpose of making a gift with the consideration which is the
subject- matter of gift. Love and affection, spiritual benefit, and many other factors may enter
in the intention of donor to make a gift, but these filial considerations cannot be called or held
to be legal considerations as understood by law.

As defined under Section 122 of the Transfer of Property Act, 1882, gift is the transfer of any
movable or immovable property which has been made by one person voluntarily and without
any consideration to another person.

The person who makes the transfer is called as donor. The person to whom such transfer is
made is called donee.

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Gift under Hindu Law:

The section is applicable to gifts of immovable property made by persons governed by the
Hindu Law, and the transfer must be effected in the manner provided by this section for
making a valid gift. The section connotes that delivery of possession is not essential for
validating a gift under the Hindu Law.

Gift under Muslim Law:

A gift by a Muslim must comply with the provisions of the Mohammedan Law. The three
valid requirements are: public declaration, acceptance and delivery of such possession as the
property is capable of. Under the Mohammedan Law delivery of possession is essential
condition for a valid gift. A writing is not necessary to create a valid gift inter vivos, but there
must be such delivery of possession as the nature of the property admits.

Gift deed and its requirements:

Deed means any legal instrument that has been signed and delivered, the grantor conveys the
title to another person. The gift deed is the document that conveys the transfer of ownership
of the property to another person without any consideration. As per the section 123 of the
Transfer of Property Act, 1882, the title of any gift is not said to have been passed to the done
unless the gift deed is registered.

Requirements of a Valid Gift:

1. (i)  Attestation: A gift-deed too, must be attested by two attesting witnesses.
2. (ii)  Recitals: Recitals in the commencement are drafted in a form different from
those in other forms. The gift documents in India commence by introduction of the
donor himself.
3. (iii)  Deed of Transfer: The deed should be drafted as a deed of transfer, with
recitals, if necessary. As there is no consideration, none need be expressed although
consideration of ―natural love and affection‘ is generally expressed in all cases of
gift to relations, and ―consideration of esteem and regard‖ is expressed when the gift
is in favour of some person for whom the donor has regard.

A gift is generally absolute and irrevocable, but a condition of revocation on the

happening of a specified event not depending on the will of the donor is valid (Sec.
126 of T.P. Act) and a gift may be burdened with obligations.

4. (iv)  Registration of Gift-Deed: Registration of Gift of immovable property, and

also, if a deed is at all executed, of movable property is compulsory, under section
123 of the T.P. Act and Section 17(1)(a), Registration Act, whatever may be the
value.

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For registration of the gift deed, the following conditions are needed to be fulfilled:

 It must be signed by the donor who is gifting the property

 It must be attested by at least 2 witnesses
 Requisite gift deed stamp duty must be paid
 Both the donor and the receiver must be present in the office of the Registrar
 The documents required for gift deed like PAN card, Aadhar card and necessary
ID

proofs must be submitted to the Registrar‘s office.

GIFT DEED OF PROPERTY (FOR PARTICULAR PURPOSE)

THIS DEED OF GIFT is made

BETWEEN

Sh._____ s/o Sh.________ r/o __________ (hereinafter referred to as "the donor")

AND

Sh.____d/o Sh.____and w/o Sh. ______r/o____(hereinafter referred to as "the

donee")

1. WHEREAS the DONEE intends to start a school at (Name of Place) _______ for
the education of children

2. The DONOR is desirous of donating the land fully mentioned and described in the
schedule hereto to be used as a site for said school.

NOW THIS DEED WITNESSES AS FOLLOWS:

1. The DONOR doeth hereby and hereunder freely and voluntarily grant, convey,
transfer, give, assign and assure unto and to the use of DONEE and his successor to
be used solely and exclusively for the purpose of a site for construction and
accommodation of the proposed children school

2. The donee will HAVE AND HOLD the same land so long as the same shall be
used and occupied as a site and/or building of the school

3. THE DONEE accepts the gift of the said property hereunder made solely and
exclusively for the purpose hereinbefore indicated subject to the condition hereunder
provided.

4. That it is expressly agreed and understood by the between the parties that this gift
of land will stand ipso facto revoked in the event the land hereunder given is not used
for the purpose
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of the intended school for which the same is given within a period of three years from the
date of this deed. In such event the land with all buildings and structures, if any erected
thereon, shall revert to and revest in the DONOR or his heirs, and shall form part of his
former estate as if this deed of gift was never executed nor intended.

5. And it is further agreed by and between the parties that in case the land is acquired by the
Government, the DONEE or his successors, including any person or persons managing the
school, shall invest the compensation money to be awarded in purchase of another land or
building to be used solely and exclusively for the school unless otherwise directed by any
court of competent jurisdiction.

6. The estimated value of the property is Rs._________

IN WITNESS WHERE OF, the donor has executed the deed of gift and delivered the same

to the donee who has also executed the same in token of acceptance.

Place :________
Date :________
(The schedule herein referred to) WITNESS:
1. THE DONOR
2. THE DONEE

Q. Define lease with its essentials and also draft a lease deed.

ANS. Lease is a transfer of an interest in the property for a stipulated period of time without
transferring the ownership of that property. In a lease, right of possession is transferred
instead of the right of ownership. Transferor here is called the lessor and the transferee i.e.
the one enjoying the property for a period is called lessee. Lease is governed by the Transfer
of Property Act, 1882 and it is given from Sections 105 to 117.

Definition of Lease

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Section 105 of The Transfer of Property Act, states the definition of a lease which states that
it is a transfer of immovable property for a particular time period for a consideration of which
the transferee has accepted the terms surrounding the agreement.

Essentials of a lease:
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 Parties must be competent: The parties in a lease agreement should be

competent to enter into a contract. Lesser should be entitled to a property and have
absolute rights over that property.
 Right of possession: Ownership rights are not transferred in a lease, only the
possession of the property is transferred.
 Rent: Consideration for a lease can be taken in the form of a rent or premium.
 Acceptance: Lessee, who is to get the interest in the property after lease, has to
accept the lease agreement along with the time period and terms & conditions
imposed on the transfer.
 Time Period: Lease always takes place for a particular time period which is to be
specified in the lease agreement. It can be relaxed at the option of the lessor.

WHAT IS A LEASE DEED?

A lease deed is defined as a document that contains the terms of a contract where the
tenant or the lessee has agreed to pay the lessor or the landlord a rent for the use of the
property periodically.

GENERAL TERMS THAT ARE COMMONLY FOUND IN A LEASE DEED

1. LESSOR: the lessor is the main party in the lease and is the owner of the property.
2. LESSEE: this is the person who has obtained from the lessor the rights to access and
use the property on lease.
3. DURATION: this is used to describe the period for which the property will be used
by the lessee. The period of the lease can be for a specific time or for perpetuity.

4. PREMIUM OR RENT: this is the price you pay in exchanged for the rights to use and
enjoy the property. It can be a one-time payment or a promise. When it paid at a time it is
called a premium and when the payment is on specific intervals or occasion then it is known
as a rent.

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LEASE DEED
THIS LEASE DEED is made and executed at Delhi on ......... (Date) BETWEEN

Smt. Sudarshan Kaur w/o Sh. Paramjit Singh R/o H. No. M-170, Greater Kailash-II, New
Delhi hereinafter referred to as the LESSOR, which expression shall unless excluded or
repugnant to the context to be deemed to include legal heirs i.e. Mr. Paramjit Singh, Husband
of Lessor herein, successors, executors, administrators, representatives and assigns of the
FIRST PART.
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AND

M/s. Dave Thomson Associates (India) Pvt. Ltd. having its registered office at Satyug-Villa
1st Floor, 5, Gurunanak Nagar off Shankarshet Road, Pune through, their Director Mr. H. R.
Srinivas to enter into these presences hereinafter referred to as the LESSEE which expression
unless excuded or repugnant to the context shall include and mean, successors, successors in
interest and assigns of the SECOND PART.

WHEREAS the Lessor has represented to the Lessee that she is the owner/landlady of the
Basement portion of the construction at M-170, Greater Kailash-II, New Delhi admeasuring
760 Sq. ft. approximate covered area in the said premises and is desirous of letting out the
same, hereinafter referred to as the demised premises.

AND WHEREAS the Lessee has offered to take the demised premises on Lease and the
Lessor has agreed to let out the same on the terms and conditions hereinafter specified.

NOW THIS AGREEMENT WITNESSETH AS UNDER:

1. That the Lessor hereby conveys to the Lessee the basement portion of the said
premises admeasuring 760 Sq. ft. Approx for a period of 24 months with effect from
1st Sept. 1993 at a monthly, rent of Rs. 4000/- (Rs. Four thousand only) exclusive of
Electricity, water charges, actual bills/ rental charges of Telephone/Fax whenever
installed in the demises premises.
2. That the Lease will be for an initial period of 24 months with effect from 1st Sept.
1993, in case the Lease is reminded at the option of the Lessor and with an enhances
increase of 10% of rent payable per annum immediately after expire of every 12
months period. The duration of Lease period 24 months is the essence of this
agreement with the provision that both, the Lessor and the Lessee have the right to
either terminate the Lease even before the expiry of the Lease period, by giving 3
months written notice. The Lease is therefore for a fixed period of 24 months w.e.f.
1st Sept. 1993 ending on 31st Aug. 1995 thereafter the Lessor shall have the option to
renew the Lease for a further period of 2 years at the terms and conditions as laid out
by the Lessor.

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3.

That on the date of execution of this Lease Deed the Lessee had paid a sum of Rs. 36000/-
(Rs. Thirty Six Thousand only) vide pay order No._______dated_________drawn on..........as
security deposit which will be kept by the Lessor for the due performance of the terms and
conditions of this Lease, free of interest. On termination of the Lease, the Lessor shall refund
the security deposit/unadjusted Advance rent, if any. In case the Lessor fails to refund the
security Deposit/balance advance rent, the Lessee shall be entitled to charge interest 21%
P.A. from the date of termination of Lease till the date of refund. Additionally, the Lessee
shall be entitled to hold possession of the property till the refund of security
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deposit/unadjusted advance rent along with interest, if any is made without payment of
rent/Lease money. This will be applicable only on production of documentary proof by the
Lessee to the Lessor that all dues pertaining to electricity and any other charges payable by
the Lessee have been cleared up to date.

The Lessee covenants with Lessor as under:

That the Lessee agrees to pay a monthly rent of Rs. 4000/- (Rs. Four thousand only)
mentioned above on or before 7th day of every month.
The Lessee agree to carry out minor repairs or replacement of broken parts in electrical and
sanitary installations and glasses himself, but major repairs pertaining to the structure of the
house will have to be done by the Lessor, as and when considered necessary by him.
However, the Lessee shall handover the vacant physical possession to the Lessor on
termination of this Lease in the same conditions as it has been handed over to him on 1-9-93.

That the Lease is for a period of 24 months only commencing from 1-9-93. The Lessee shall
give vacant possession of the premises to the Lessor after the expiry of the Lease period.

4.

i) ii)

iii)

iv) That the Lessee shall duly comply with all the local rules and regulations of local
authorities with regard to the use of the premises.

5. v)  That the Lessee shall pay the electricity charges in accordance with the bills at
rates determined by DESU and accordance with bills/demands received from DESU,
NDMC including meter rents etc. The meter readings on the date of possession will
be duly recorded.
6. vi)  That the demised premises have been let out to the Lessee for authorized use only.

vii) That the Lessee shall permit the Lessor or his duly authorized agents during reasonable
hours in the day time to enter upon the demised premises for inspection of the Lessor‘s

fixtures and fittings therein, and the premises as may be deemed fit by the Lessor.
viii) That the Lessee at the expiry of this Lease shall deliver peaceful and vacant possession
of the demised premises to the Lessor together with the fittings and fixtures installed in good
condition as the same are at present, reasonable wear and tear and damage by fire,
earthquake, civil commotion, act of God excepted including lightening to fittings etc. but
excluding telephones, fax computers and air conditioners. No fixtures, wood work etc. carried
by the Lessee shall be removed/damaged at the time of handing over vacant

possession of the demised premises.

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9. ix)  That the Lessee shall not make any alteration of permanent nature within the
premises as well as in the open space, without the written consent of the Lessor.
10. x)  That the Lessor shall not interfere with the peaceful enjoyment of the property by
the Lessee whether directly or indirectly.
11. xi)  That the Lessee shall keep the premises in good tenantable condition and shall not
cause any loss/ damage to it, subject to normal wear and tear of the premises.
The Lessee shall observe and perform at all time during the continuance of the terms
hereby created all the terms and conditions herein as contained.
12. xii)  That the Lessee shall in the event of unfortunate and unseen demise or
incapacitation of Lessor will for all purposes treat Mr. Paramjit Singh, Husband of
Lessor as the rightful receipt of rents or any other dues payable by the Lessee as per
the terms set forth above in this deed without any let or hindrances. The said Mr.
Paramjit Singh will have the full authority to enforce any or all provisions contained
in this agreement. He shall by my sole beneficiary and executor.

xiii) That the Lessee will not park any motor car or any other vehicle in this outer drive way
of the premises at any time both inside and outside the main gate.

5.
i)

ii)

iii)

iv) v)

6.
i)

That the Lessor hereby covenants with Lessee as follow:-

That the Lessor has good right and full power and absolute authority to Lease the demised
premises to the Lessee in manner herein contained.
To observe and perform t all times during the continuance of their terms hereby created, all
the terms and conditions contained in the Lease by virtue of which the Lessor is holding the
said premises and to keep the Lessee indemnified against any breach or consequences
thereof.

To pay discharge all rates and taxes whether Municipal or otherwise and to her assessments
and outgoing which pare payable in respect of Lessor failing to pay any such amount when
the same shall fall due for payment, the Lessee shall be entitled to pay the same on behalf of
the Lessor and to deduct the amount so paid from the rent payable by the Lessee to the Lessor
hereunder.

To comply with, at his own cost, all requirements and regulations of the Municipals or other
lawful authority concerning the demised premises to the observed by the owner/landlady.
That the Lessee paying the Lease money hereby reserved and performing the several
covenants conditions and agreements herein contained and on its part to be observed and
performed, the Lessee shall peaceably hold and enjoy the demised premises together with the
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Lessor fixtures and fittings therein during the said terms without any interruption or
disturbance from or by the Lessor or any person claiming through under or in trust for the
Lessor.

It is hereby mutually agreed and declared by the parties hereto as follows:-

In the event of the demised premises or any part thereof being destroyed or damaged by fire,
earth quake, flood war air raid civil commotion, riots or other act of God or irritable

62

force during the period of the Lease, this Lease shall at the option of the Lessee be
terminated. And in the event of the Lessee being desirous of any part thereof as the case may
be so as to enable the Lessor to repair the damage or reinstate the same and the rents hereby
reserved shall remain suspended till the demised premises or any part thereof as the case may
be reinstated or restored to its former state and possession if delivered over to the Lessee for
the remaining part of this Lease, if any.

2. ii)  That in the event of any dispute or difference arising out of this agreement, the
matter will be referred to the Arbitrator approved by common consent of both the
parties and his decision will be binding on both parties.
3. iii)  That the parties to the agreement have specifically agreed that considering the
location, accommodation, and condition of the said property, the Lease rent is fair rent
and in consonance with the property, market rates.
4. iv)  That the terms and conditions of this agreement as stated above shall be binding
on both the parties.
5. v)  If the rents or other amounts due under the Lease deed or any part thereof shall
remain unpaid for more than one month and if any covenant on the Lessee‘s part
herein contained shall not be performed or observed by the Lessee and shall continue
to do so for the period of 30 days after written notice by the Lessor thereof to the
Lessee then and in any of the said cases it shall be lawful for the Lessor to renter the
demised premises or upon any part thereof in the name of the whole and the Lease
shall thereupon be terminated, but without prejudice to any claim or action or remedy
which either of the parties may have against the other as on that date in respect of any
branch, non-performance or non-observance of the covenants or conditions herein
contained.
6. vi)  The Lease shall automatically come to an and determined on the expiry of the
Lease period. Hence peaceful and vacant possession of the demised premises will be
deemed to have been handed over by the Lessee to the Lessor.

vii) The cost of preparation of the original Lease and duplicate thereof and stamps and
registration fee and in connection with the same shall be borne and paid by the Lessee. The
Lessor shall retain the original of the Lease deed and the Lessee the duplicate thereof.

IN WITNESS WHEREOF, these presents have been executed by the parties hereto on the
day, month and year first mentioned herein above in presence of witness:

LESSOR LESSEE
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Witnesses: (1) (2)

Note: Read Section 105 to Section 111 of the Transfer of Property Act, 1882

63

Short Answer Questions Draft a mortgage deed.

MORTGAGE DEED

THIS DEED OF MORTGAGE is executed at Delhi on this 31st day of January 2017 BY

Mr. A son of Sh. ____ resident of ____ hereinafter called the MORTGAGOR, which
expression shall mean and include his heirs, legal representatives, executors, administrators
and assigns of the First Part;

IN FAVOUR OF

M/s ABC Ltd., A company incorporated under the Companies Act having its registered office
at ___ hereinafter called the MORTGAGEE, which expression shall mean and include its
successors.

WHEREAS the Mortgagor has vide Lease-deed dated 5.1.1988 purchased / taken on
perpetual Leases from the President of India, a vacant residential plot bearing Municipal No.
A-25 situated at Ashok Vihar, Delhi
AND WHEREAS per the terms of the said perpetual Lease-deed, the Mortgagor is required
to construct a residential building on the aforesaid vacant plot of land;

AND WHEREAS the Mortgagor is not possessed with the financial means to undertake the
construction of the residential building on the aforesaid plot of land;
AND WHEREAS the Mortgagee, with whom the Mortgagor is presently employed, has
agreed to advance a lone of Rs.2,00,000/- ( RUPEES Two lakhs only ) to the Mortgagor, and
which loan shall be utilized by the Mortgagor towards the construction of a residential house
on the above vacant plot of land.

AND WHEREAS in consideration of the aforesaid amount of Rs. 2,00,000/- borrowed by the
Mortgagor from the Mortgagee, the Mortgagor has agreed to execute this Mortgage deed of
the vacant plot of land in favour of the Mortgagee.

NOW THIS DEED, THEREFORE WITNESSES AS UNDER:

1. The Mortgagor admits and acknowledges that he owes a sum of Rs.2,00,000/- to the
Mortgagee on the basis of promissory note and receipt dated 1.6.1990 executed by him in
favour of the Mortgagee.
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2. The Mortgagor shall be lible to pay interest on the above stated principal sum of Rs.
2,00,000/- @Rs. 12/- per cent per annum form the date of the loan until payment and in this
manner the total charge of the referred property of the Mortgagor shall be the principal sum
of Rs. 2,00,000/- and interest accruing thereupon.

Q. ANS.

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3. The Mortgagor will pay to the Mortgagee the said sum of Rs. 2,00,00/- in equal monthly
installment of Rs.2000/- per month on or before the 31st December, 2000 and in the
meantime interest thereon or on such thereof as shall for the time being remain unpaid, at the
rate of 12% percent per annum by half yearly payments on the 30th day of June and the 31st
day of December in each year.

4. That any interest not paid on the due dates shall be treated as principal and added to the
principal sum herby secured and bear interest at the rate and payable on the half yearly days
aforesaid.

5. In consideration of the aforesaid, the Mortgagor hereby transfers by way of simple

mortgage to the Mortgagee, a vacant residential plot bearing Municipal No. A-25, Ashok
Vihar, Delhi.

6. By this deed, the Mortgagor also mortgages to the Mortgagee any building and all other
permanent structures that shall be built on the aforesaid vacant plot by the Mortgagor.

7. The Mortgagor hereby covenants with the Mortgagee as follows:

(i) That the said premises are free from all encumbrances and the Mortgagor undertakes that
until the entire principal amount and interest, if any due, is not paid back to the Mortgagee,
the Mortgagor shall not create any fresh mortgage, charge, pledge, or in any other manner,
alienate the corpus or his interest in the aforesaid property to any third person.
(ii) If the Mortgagor fails to pay the sum with interest after it has become payable under the
provisions of the this deed, the Mortgagee shall, in addition to any other remedy available to
him under the law, have the power to sell without the intervention of a Court the mortgaged
property or any part thereof for the realization of the money due to it hereunder.
(iii) During the continuance of the Mortgage, the Mortgagor shall keep any building or
permanent structure erected on the aforesaid plot of land insured against damage by fire in
the name of the Mortgagor with an Insurance Company and shall punctually pay all premium
on such insurance and shall produced to the Mortgagee on demand, the policy of such
insurance and the receipt for the premium so paid.
Provided always, that if the Mortgagor shall make default in any of the above matters, the
Mortgagee may, in its discretion, insure and keep insured all or any of the said building and
permanent structures to the amount aforesaid and that the expenses of doing shall be repaid to
it by the Mortgagor on demand, and until so paid shall be added to the principal money
66

hereby secured and bear interest accordingly and be secured in the like manner as the said
principal.

IN WITNESSES WHEREOF the Mortgagor has executed this document on the date, first
above written.

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WITNESSES 1. ........
2. .......

MORTGAGOR MORTGAGEE

Q. ANS.

Draft a power of attorney to recover debt.

POWER OF ATTORNEY TO RECOVER DEBTS

**** *

KNOW ALL MEN BY THESE PRESENTS THAT I,...............S/o....

R/o............ do hereby constitute, nominate and appoint Shri....... S/o.........
R/o. .............., as my true and lawful special attorney for me in my name and on
my behalf to do inter alia all or any of the acts, deeds and things.

NOW THIS POWER OF ATTORNEY WITNESSED AS UNDER:-

(1) To demand and receive debt amount (Principal and Interest) from the person(s) as detailed
in the Schedule-1 of this power of attorney. He is authorized to give and execute necessary
receipts for the same.

(2) He can collect, receive and realize debts fully or partially, in lump sum. He is empowered
to grant installments and grant time for payment of debts and to recover debts according to
those installments and granted time. He is further authorized to accept security for payment
of debts.

(3) To compromise any such debt/debts and to receive the debt/debts according to that
compromise

(4) To institute any suit or other legal proceedings in competent court for recovery of all or
any of such debts or claims and for this he is authorize to sign any plaint, petition,
vakalatnama, etc. and any other document for that suit or execution of decree.

(5) To withdraw any suit or other proceedings against the debtor.

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(6) To refer to arbitration any dispute or difference with debtor. 66

(7) To prosecute or defend any bankruptcy or insolvency proceedings.

(8) Generally to do all such acts, deeds and things as he shall think fit and proper as fully and
effectually to recover the debts as I could do myself notwithstanding no express power or
authority in that behalf is hereunder provided.

I, do hereby agree to confirm and ratify all the Lawful acts, deeds and things done my said
attorney as acts deeds and things done by me as if I were present.

Schedule-1

IN WITNESS WHEREOF, I the executant have hereunto set and subscribed my hands to in
the present of following witnesses on: -

DATE: _________

PLACE: _________

EXECUTANT WITNESSES:

1. ..................(Name and Address) 2. ....................(Name and Address)

Q. Draft a sale deed of Immovable property.

ANS. AGREEMENT FOR SALE

THIS AGREEMENT is made at ............on this ............day of..........

BETWEEN

Mr. A aged........s/o..........r/o..... (hereinafter referred to as the VENDOR which expression

shall, unless repugnant to the context or meaning thereof shall mean and include his heirs,
executors, administrators and assigns of the FIRST PART).

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AND
68

Mr. B aged ..........s/o..........r/o..... (hereinafter referred to as the VENDEE/PURCHASER

which expression shall, unless repugnant to the context or meaning thereof shall mean and
include his heirs, executors, administrators and assigns of the SECOND PART).

WHEREAS the Vendor is the absolute owner of the property bearing

no.......admeasuring....situated at.........(hereinafter referred to as the said property).

AND WHEREAS the Vendor has agreed to sell the said property to the Vendee at the price
and on the conditions mentioned hereinafter.

NOW IT IS AGREED BETWEEN THE PARTIES AS FOLLOWS:

1. The Vendor hereby agrees to sell, transfer and convey the said property in favour of
the Vendee.
2. That the consideration of Rs....is to be paid by the Vendee to the Vendor. Rs.....is to
be paid at the execution of this agreement as earnest money. Rs....on.....(date) and
lastly Rs....at the time of final sale deed.
3. The Vendor acknowledges the payment of Rs....as earnest money paid in
cash/cheque/dd no...drawn on ......(Bank name and Branch) by Vendee.
4. The Vendor shall make out a marketable title to the said property free from
encumbrances and reasonable doubts.
5. The Vendor shall deliver to the Vendee the title deeds relating to the said property in
his possession and power on execution of these presents for inspection and
investigation of the title by the Vendee or his advocate.
6. The Vendor agrees to apply for, obtain and furnish unto the Vendee all such
permissions as may be necessary under the laws for registration of Sale Deed.
7. The Vendor and the Vendee hereby agree that the sale will be completed within six
months from the date hereof.
8. All the taxes, levies etc due and payable against the said property shall be paid by the
Vendor till the completion of sale and thereafter it will be the responsibility of the
purchaser. The Vendor shall handover all the tax receipts etc. duly paid to the Vendee
at the time of completion of sale.
9. The Vendor agrees to handover actual, physical and vacant possession of the said
property unto the Vendee at the time of sale deed.
10. That the expenses towards the payment of stamp duty, registration charges and all
other incidental expenses for agreement for sale and sale deed shall be borne out by
the Vendee.
11. If the Vendor fails to make out the clear marketable title to the said property as
aforesaid then the Vendee will have the right to cancel this agreement by giving at
least fifteen days notice to the Vendor and after the expiration of fifteen days the
agreement shall stand terminated and the Vendor agrees to return the earnest money
to the Vendee.

68

12. If the Vendee fails to perform his obligations under this agreement within the time
stipulated then the Vendor shall be entitled to cancel this agreement by giving at least fifteen
69

days notice in writing to the Vendee. On termination the Vendor will be entitled to forfeit the
earnest money paid by the Vendee.

SCHEDULE OF PROPERTY

Details of the property to be mentioned:

IN WITNESS WHEREOF parties hereunto have signed this document on the date and place
first

above written in the presence of following witnesses.

WITNESSES: (1)
(2)

SALE DEED FOR RS. 2,50,000/-

THIS SALE DEED is made at ............on this ............day of.......... BETWEEN

VENDOR VENDEE

Mr...... aged........s/o..........r/o..... (hereinafter referred to as the VENDOR which expression

shall, unless repugnant to the context or meaning thereof shall mean and include his heirs,
executors, administrators and assigns of the FIRST PART).

AND

Mr....... aged ..........s/o..........r/o..... (hereinafter referred to as the VENDEE/PURCHASER

which expression shall, unless repugnant to the context or meaning thereof shall mean and
include his heirs, executors, administrators and assigns of the SECOND PART).

WHEREAS the vendor purchased a freehold residential plot measuring 300 sq. yds. and
bearing No.170 in „M‟ Block of the residential colony known as Greater Kailash Part-II,
New Delhi vide sale deed dated 6.8.85 registered in the office of the Sub-Registrar, New

69

Delhi as document No. 5560 Addl. Book No. I, Vol. No. 5318 at pages 136 to 152 on 6.8.85.
The aforementioned plot is bounded as under :-

EAST ... ROAD NORTH ... PLOT NO. M-168

WEST... SERVICE LANE SOUTH... PLOT NO. M-172

AND WHEREAS the Vendor after purchasing the said plot, got the building plan sanctioned
from the Municipal Corporation of Delhi vide their letter/file No. 400/B/85 dated 13.12.85.
Then the Vendor caused construction thereon of residential building on different floor levels.
70

AND WHEREAS the Vendor to sell and the Vendee has agreed to purchase part of Basement
(760 Sq. ft. approx), one front Bed Room if First Floor (with attached bath room and small
balcony) of the said building on „as is where is‟ basis for a total consideration of Rs.
2,50,000/- (Rupees two lacs and fifty thousand only) on the terms and conditions set forth
hereinafter.

NOW THIS SALE DEED WITNESSES AS FOLLOWS:

1. That in pursuance of this agreement, the Vendor has already received from the
Vendee a sum of Rs. 2,00,000/0 (Rupees two lacs only) as part sale consideration, the
receipt of which the Vendor hereby admit and acknowledge.
2. The balance amount of Rs. 50,000/- (Rupees fifty thousand only) has been paid by the
Vendee to the Vendor by cheque No. 010806 dated 29.9.86 drawn on Central Bank of
India, Kalkaji, New Delhi-110019.
3. That is view of the amount of sale consideration received as per para 1 above, the
Vendor hereby grant, convey and transfer all his rights, titles and interests as held on
the date hereof in the said part of basement and part of First Floor of M-170, Greater
Kailash Part-II, New Delhi together with undivided, indivisible and impartible
proportionate ownership rights on the land underneath the said building, on the terms
and conditions contained herein, provided that common staircase, water tanks and
other common facilities, fittings etc. shall be used and enjoyed by the Vendee along
with other owners/occupants of the said building.
4. That the Vendor is free to sell the remaining portion (s) of the said residential building
to any other party/parties with common rights for use of common entrances, common
passages, staircases, water tanks, common facilities etc. and the Vendee will not make
any objection thereto.
5. That the Vendor assures that the sale of the said residential portion/domestic storage
space is free from attachment, tenancies gifts, decree, prior sale and religious disputes
and if it is proved otherwise at any time and the Vendee suffers any loss due to any of
the aforementioned reasons, then the Vendor shall be liable to make good the loss
thus suffered by the Vendee.

70

6. That the Vendee has perused the original title deed, sanctioned plans. Sale plans etc.
and has fully satisfied herself.
7. That the Vendee/occupants shall have no right to use or affix or exhibit any display
boards or any big writing or any sing boards at the external face of the said building.
8. That all expenses of registration, Corporation tax etc. have been borne and paid by the
Vendee.
9. That charges for maintenance/consumption for common amenities such as lights in
staircases etc. and booster and charges for major repairs etc. shall be paid by the
owners of all the portions proportionately.
10. That all taxes from the date of the Agreement to sell the said portion shall be borne
and paid by the Vendee. If assessment of taxes in not made separately for each
portion, then all the owners of the said building shall pay such charges proportionately
directly to the authorities concerned and the Vendor shall in no way be responsible for
the same.
71

11. That the Vendee shall keep the said property in properly repaired and good condition
and shall not do anything or omit to do anything which may endanger or affect the
other portions of the said building or hinder the proper and reasonable use of such
portions by the other owners/occupants of the said building.
12. That the existing use of the said portion of first floor is residential and that on
Basement domestic storage. The Vendee shall neither use the said portion for any
illegal, immoral or commercial purpose nor use it so as to cause annoyance or
nuisance to the other owners/occupants of the said building. Common parts e.g.
staircase, passage, driveway etc. will in no case be used for keeping/chaining
pets/does or any other animal/bird or storing cycles, scooter, motor-cycles etc.
13. The Vendee has also satisfied herself about the soundness of the title of the Vendor
and his power to sell the said portion in the manner stated herein.
14. While building is under construction, the Vendee shall have the right to make at her
own discretion any internal alternations (except structural) in the said portion at her
own cost and expenses.
15. That the Vendee shall not construct anything whatsoever upon or overhanging the
said land or the portion of the said land kept uncovered and unbuilt upon the building
(including terrace). The Vendee shall not make any alterations involving structural
changes in the said portion/building. The Vendee shall have no right to use the terrace
at the top of the building.
16. That the Vendee and owners/occupants (along with servants/workmen) of all the
portions of the said building will have full right for access to booster pump (tubewell),
water meter, sewer tank, overhead water tank etc. at all reasonable times only on
notice (except in the case of emergency) to get their underground and overhead tanks,
booster pump etc. repaired/cleaned.
17. That photostat copies of title deeds etc. have been handed over by the Vendor to the
Vendee and physical, vacant possession of the said floor/portion has also been taken
by the Vendee.

71

18. That this transaction has taken place at New Delhi. As such Delhi Court shall have
exclusive jurisdiction to entertain any dispute arising out of or in any way touching or
concerning this deed.

SCHEDULE OF PROPERTY

Details of the property to be mentioned

IN WITNESS WHEREOF parties hereunto have signed this document on the date and place
first above written in the presence of following witnesses.

VENDOR VENDEE

WITNESSES: (1)
(2)
72

Q. ANS.

**** *

Draft a LEASE deed of Immovable property.

LEASE DEED
THIS LEASE DEED is made and executed at Delhi on .........(Date) BETWEEN

Smt. Sudarshan Kaur W/o Sh. Paramjit Singh R/o H. No. M-170, Greater Kailash-II, New
Delhi hereinafter referred to as the LESSOR, which expression shall unless excluded or
repugnant to the context to be deemed to include legal heirs i.e. Mr. Paramjit Singh, Husband
of Lessor herein, successors, executors, administrators, representatives and assigns of the
FIRST PART.

AND

M/s. Dave Thomson Associates (India) Pvt. Ltd. having its registered office at Satyug-Villa
1st Floor, 5, Gurunanak Nagar off Shankarshet Road, Pune through, their Director Mr. H. R.
Srinivas to enter into these presences hereinafter referred to as the LESSEE which expression
unless excuded or repugnant to the context shall include and mean, successors, successors in
interest and assigns of the SECOND PART.

72

WHEREAS the Lessor has represented to the Lessee that she is the owner/landlady of the
Basement portion of the construction at M-170, Greater Kailash-II, New Delhi admeasuring
760 Sq. ft. approximate covered area in the said premises and is desirous of letting out the
same, hereinafter referred to as the demised premises.

AND WHEREAS the Lessee has offered to take the demised premises on Lease and the
Lessor has agreed to let out the same on the terms and conditions hereinafter specified.

NOW THIS AGREEMENT WITNESSETH AS UNDER:

1. That the Lessor hereby conveys to the Lessee the basement portion of the said
premises admeasuring 760 Sq. ft. Approx for a period of 24 months with effect from
1st Sept. 1993 at a monthly, rent of Rs. 4000/- (Rs. Four thousand only) exclusive of
Electricity, water charges, actual bills/ rental charges of Telephone/Fax whenever
installed in the demises premises.
2. That the Lease will be for an initial period of 24 months with effect from 1st Sept.
1993, in case the Lease is reminded at the option of the Lessor and with an enhances
increase of 10% of rent payable per annum immediately after expire of every 12
months period. The duration of Lease period 24 months is the essence of this
73

agreement with the provision that both, the Lessor and the Lessee have the right to
either terminate the Lease even before the expiry of the Lease period, by giving 3
months written notice. The Lease is therefore for a fixed period of 24 months w.e.f.
1st Sept. 1993 ending on 31st Aug. 1995 thereafter the Lessor shall have the option to
renew the Lease for a further period of 2 years at the terms and conditions as laid out
by the Lessor.
3. That on the date of execution of this Lease Deed the Lessee had paid a sum of Rs.
36000/-(Rs.Thirty Six Thousand only) vide pay order No._______dated_____ drawn
on..........as security deposit which will be kept by the Lessor for the due performance
of the terms and conditions of this Lease, free of interest. On termination of the Lease,
the Lessor shall refund the security deposit/unadjusted Advance rent, if any. In case
the Lessor fails to refund the security Deposit/balance advance rent, the Lessee shall
be entitled to charge interest 21% P.A. from the date of termination of Lease till the
date of refund. Additionally, the Lessee shall be entitled to hold possession of the
property till the refund of security deposit/unadjusted advance rent along with interest,
if any is made without payment of rent/Lease money. This will be applicable only on
production of documentary proof by the Lessee to the Lessor that all dues pertaining
to electricity and any other charges payable by the Lessee have been cleared up to
date.
4. The Lessee covenants with Lessor as under:

i) That the Lessee agrees to pay a monthly rent of Rs. 4000/- (Rs. Four thousand

only) mentioned above on or before 7th day of every month. 73

2. ii)  The Lessee agree to carry out minor repairs or replacement of broken parts in
electrical and sanitary installations and glasses himself, but major repairs pertaining to
the structure of the house will have to be done by the Lessor, as and when considered
necessary by him. However, the Lessee shall handover the vacant physical possession
to the Lessor on termination of this Lease in the same conditions as it has been handed
over to him on 1-9-93.
3. iii)  That the Lease is for a period of 24 months only commencing from 1-9-93. The
Lessee shall give vacant possession of the premises to the Lessor after the expiry of
the Lease period.
4. iv)  That the Lessee shall duly comply with all the local rules and regulations of local
authorities with regard to the use of the premises.
5. v)  That the Lessee shall pay the electricity charges in accordance with the bills at
rates determined by DESU and accordance with bills/demands received from DESU,
NDMC including meter rents etc. The meter readings on the date of possession will
be duly recorded.
6. vi)  That the demised premises have been let out to the Lessee for authorized use only.
7. vii)  That the Lessee shall permit the Lessor or his duly authorized agents during
reasonable hours in the day time to enter upon the demised premises for inspection of
the Lessor‘s fixtures and fittings therein, and the premises as may be

deemed fit by the Lessor.

8. viii)  That the Lessee at the expiry of this Lease shall deliver peaceful and vacant
74

possession of the demised premises to the Lessor together with the fittings and
fixtures installed in good condition as the same are at present, reasonable wear and
tear and damage by fire, earthquake, civil commotion, act of God excepted including
lightening to fittings etc. but excluding telephones, fax computers and air
conditioners. No fixtures, wood work etc. carried by the Lessee shall be
removed/damaged at the time of handing over vacant possession of the demised
premises.

9. ix)  That the Lessee shall not make any8 alteration of permanent nature within the
premises as well as in the open space, without the written consent of the Lessor.
10. x)  That the Lessor shall not interfere with the peaceful enjoyment of the property by
the Lessee whether directly on indirectly.
11. xi)  That the Lessee shall keep the premises in good tenantable condition and shall not
cause any loss/ damage to it, subject to normal wear and tear of the premises.
The Lessee shall observe and perform at all time during the continuance of the terms
hereby created all the terms and conditions herein as contained.
12. xii)  That the Lessee shall in the event of unfortunate and unseen demise or
incapacitation of Lessor will for all purposes treat Mr. Paramjit Singh, Husband of
Lessor as the rightful receipt of rents or any other dues payable by the Lessee as per
the terms set forth above in this deed without any let or hindrances. The said Mr.
Paramjit Singh will have the full authority to enforce any or all provisions contained
in this agreement. He shall by my sole beneficiary and executor.
13. xiii)  That the Lessee will not park any motor car or any other vehicle in this outer
drive way of the premises at any time both inside and outside the main gate.

74

5. That the Lessor hereby covenants with Lessee as follow:-

1. i)  That the Lessor has good right and full power and absolute authority to
Lease the demised premises to the Lessee in manner herein contained.
2. ii)  To observe and perform t all times during the continuance of their terms
hereby created, all the terms and conditions contained in the Lease by virtue of
which the Lessor is holding the said premises and to keep the Lessee
indemnified against any breach or consequences thereof.
3. iii)  To pay discharge all rates and taxes whether Municipal or otherwise and
to her assessments and outgoing which pare payable in respect of Lessor
failing to pay any such amount when the same shall fall due for payment, the
Lessee shall be entitled to pay the same on behalf of the Lessor and to deduct
the amount so paid from the rent payable by the Lessee to the Lessor
hereunder.
4. iv)  To comply with, at his own cost, all requirements and regulations of the
Municipals or other lawful authority concerning the demised premises to the
observed by the owner/landlady.
5. v)  That the Lessee paying the Lease money hereby reserved and performing
the several covenants conditions and agreements herein contained and on its
part to be observed and performed, the Lessee shall peaceably hold and enjoy
the demised premises together with the Lessor fixtures and fittings therein
75

during the said terms without any interruption or disturbance from or by the
Lessor or any person claiming through under or in trust for the Lessor.
6. It is hereby mutually agreed and declared by the parties hereto as follows:-
1. i)  In the event of the demised premises or any part thereof being destroyed or
damaged by fire, earth quake, flood war air raid civil commotion, roits or other
act of God or irrestible force during the period of the Lease, this Lease shall at
the option of the Lessee be terminated. And in the event of the Lessee being
desirous of any part thereof as the case may be so as to enable the Lessor to
repair the damage or reinstate the same and the rents hereby reserved shall
remain suspended till the demised premises or any part thereof as the case may
be reinstated or restored to its former state and possession if delivered over to
the

Lessee for the remaining part of this Lease, if any.

2. ii)  That in the event of any dispute or difference arising out of this agreement,
the

matter will be referred to the Arbitrator apporved by common consent of both

the

parties and his decision will be binding on both parties.

3. iii)  That the parties to the agreement have specifically agreed that considering
the

location, accommodation, and condition of the said property, the Lease rent is
fair

rent and in consonance with the property, market rates.

4. iv)  That the terms and conditions of this agreement as stated above shall be
binding

on both the parties.

5. v)  If the rents or other amounts due under the Lease deed or any part thereof
shall

remain unpaid for more than one month and if any covenant on the Lessee‘s
part herein contained shall not be performed or observed by the Lessee and
shall continue to do so for the period of 30 days after written notice by the
Lessor thereof to the Lessee then and in any of the said cases it shall be lawful
for the

75
76

Lessor to renter the demised premises or upon any part thereof in the name of the whole and
the Lease shall thereupon be terminated, but without prejudice to any claim or action or
remedy which either of the parties may have against the other as on that date in respect of any
branch, non-performance or non-observance of the covenants or conditions herein contained.

6. vi)  The Lease shall automatically come to an and determined on the expiry of the
Lease period. Hence peaceful and vacant possession of the demised premises will be
deemed to have been handed over by the Lessee to the Lessor.
7. vii)  The cost of preparation of the original Lease and duplicate thereof and stamps
and registration fee and in connection with the same shall be borne and paid by the
Lessee. The Lessor shall retain the original of the Lease deed and the Lessee the
duplicate thereof.

IN WITNESS WHEREOF, these presents have been executed by the parties hereto on the
day, month and year first mentioned herein above in presence of witness:

Witnesses: (1)
(2)

LESSOR LESSEE

[Note: Read Section 105 to Section 111 of the Transfer of Property Act, 1882]. Short
Question-Answer

Q.

ANS.

Draft a notice of ejectment through Advocate.

NOTICE OF EJECTMENT THROUGH ADVOCATE (SECTION 106 OF

THE TRANSFER OF PROPERTY ACT, 1882)

Ch. No. ..., Delhi High Court New Delhi

A... GUPTA Advocate
Ph.011- 2338XXXX

To ..........................

REGD A/D / U.P.C.

76
77

Dated........................

Sub: NOTICE UNDER SECTION 106 OF THE TRANSFER OF PROPERTY ACT, 1882
FOR EJECTMENT

Dear Sir,
Under the instructions from and on behalf of my client Sh. ......S/O......R/O....(hereinafter
referred to as ̳my client‘), I serve you with the following notice:

1. That the house bearing no.......situated at.....in......city is owned by my client. That you
approached my client and requested my client to give the said property on lease to
you.
2. That my client has inducted you as the tenant in respect of the said property. That the
agreed monthly rent for the said property is Rs........per month.
3. I hereby give you notice that you are to quit and vacate the said property below of
which you are now in possession of as a monthly (or yearly) tenant under my said
client immediately on the expiry of the last day of...................................2004.
4. On and from the Ist of.....(month next following the last day of the month on which
the tenant is required to quit) the tenancy hereto before subsisting shall terminate and
all relationship of landlord and tenant between my client and you shall absolutely
cease.
5. You are requested to deliver vacant possession of the said premises unto my client on
that date as stated above.
6. In case of your failure to quit the premises as desired, you will be considered as a
trespasser and ejected in due course of law and you will have to pay damages at rate
of Rs...........per...... until you are evicted.

Yours faithfully Advocate

*************
77

Q.

ANS.

Draft a notice of suit under section 80 of the Code of Civil Procedure, 1908
against the Central Government.

NOTICE OF SUIT UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE,1908

AGAINST THE CENTRAL GOVERNMENT
78

Ch. No. ..., Delhi High Court New Delhi

A... GUPTA Advocate
Ph.011- 2338XXXX

To .......................... The Secretary to the Government of India Education Department Central

Secretariat New Delhi

REGD A/D / U.P.C.

Dated........................

Sub: NOTICE UNDER S. 80 OF THE CIVIL PROCEDURE CODE, 1908.

Dear Sir,
Under instructions from my client........................an employee in Section..............of the
Department of Education, Central Secretariat, New Delhi I hereby give you notice under S.80
of the C.P.Code and state that my aforesaid client intends to sue the Union of India owing
and representing the Department of Education, Central Secretariat, New Delhi after the
expiry of two months after the service of this notice unless reliefs claimed herein below are
granted to my said client within the said period of two months. The following particulars of
the nature of the claim, cause of action and reliefs claimed are given below:

(1) Name and description of the Plaintiff

(2) Cause of Action

Sri.................son of.............by occupation.......residing at..........

(a) Sri...........was an employee..........section of the department of education, Government of
India, Central Secretariat, New Delhi. He has been dismissed from service illegally with
effect from...........
(b) Sir................. was charged falsely for an alleged theft in the office on..............and charge
sheeted and ultimately dismissed from service with effect from.......... (c) Cause of action for
the suit arose on................the date of dismissal.

78

(3) Reliefs sought for (a) Reinstatement of Sri........................

(b) Recovery of salary for the period of...........to........

Yours faithfully Advocate

Q.
79

ANS.

Draft a notice of under section 138 of The Negotiable Instruments Act, 1881.

NOTICE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS

ACT, 1881

REGD A/D / U.P.C.

To,
Sh. ................, ............ Connaught Place, New Delhi -110001
And also at:
.............
Vikas Puri
New Delhi-110018

Dated:

SUB: LEGAL NOTICE UNDER SECTION 138 OF THE NEGOTIABLE INSTRUMENTS

ACT, 1881

Dear Sir,

Under the instructions from and on behalf of my client Sh. ............., Daryaganj, New Delhi-
110002 (hereinafter referred to as „my client‟), I serve you with the following notice:

1. That my client is engaged in the business of trading of sewing machines. During the
ordinary course of business you addressee purchased from my client the said sewing
machines for which you issued a cheque bearing no.....dated..... of United Bank of India,
Khanpur Branch, Khanpur Extn. New Delhi-110062 for a sum of Rs.2,45,700/-, as part
payment towards discharge of your liability which you addressee had incurred by way of
purchasing aforesaid sewing machines from my client.

79

2. That the above-mentioned cheque was deposited by my client with his banker HDFC
Bank Ltd., 28, Punjabi Bagh, New Delhi, for encashment on......(Date)
3. That the said cheque was returned to my client with an endorsement ―Dishonoured
for insufficiency of funds.‖ That the dishonoured cheque along with the cheque
returning memo of bank dated.......was returned to my client.
4. That for the first time my client came to know about the dishonouring of the said
cheque on.........
80

5. That on account of the dishonouring of the cheque you addressee are guilty of
committing offences punishable u/s 138 of the Negotiable Instruments Act 1881 (as
amended up to date).

Now through this legal notice I hereby call upon you addressee to make the payment of
Rs.2,45,700/-, the amount of said dishonoured cheque, within fifteen days of the receipt of
this notice, failing which my client shall be constrained to take legal action against you by
way of Civil as well as Criminal proceedings, at your risk as to cost and consequences
resulting there from.

Yours Sincerely, Advocate

Name of the Advocate Advocate

To,
Sh. ...........Advocate, ......, Delhi High Court, New Delhi-110001

Copy kept in my office for future reference and use.

REPLY TO LEGAL NOTICE

............... Jangpura Extn. New Delhi-110019

Ph.011- 2437XXXX

REGD A/D / U.P.C.

Dated:

SUB: REPLY TO YOUR LEGAL NOTICE U/S 138 NEGOTIABLE INSTRUMENT ACT,
DATED..........

Dear Sir,

80

Your legal notice dated 09.06.2015 has been placed before me by my client
Sh. ......................at Connaught Place, New Delhi -110001 and I, the undersigned, have been
instructed to reply to your said notice by my client on his behalf as under:

1. That, at the outset you are being informed that the notice under reply, you have sent
on behalf of your above said client, contains false and frivolous facts provided by
your said client against my client, thereby your notice under reply deserves to be
withdrawn, with unconditional apology by your client, because the claim made by you
81

is without any basis and is based upon concocted facts, as no claim is made out
against my client and in favour of your client.
2. That, in fact, my client did not place any order for supply of any machines
whatsoever, as alleged by you. But, with a view to dispose off your old stock of
outdated machines, you requested my client to place them at his shop for sale.
Keeping in view old relations my client agreed to your client‘s proposal, which was
subject to the condition that payment would be made only after those machines were
sold out. However, those machines were not only outdated, but were also
mechanically faulty, because of which till date they are lying with my client, which
your client is at liberty to take back with two days‘ prior notice. It is pertinent to
mention here that the cheque in question was handed over by my client blank and the
same was to be used only upon instructions of my client, after he could sold out your
all those machines.
3. That, however, your client has cheated my client by misusing that cheque which is not
in the handwriting of my client. As a matter of fact, your client has committed fraud
in the matter and, consequently, is liable to be proceeded under the relevant
provisions of law.
4. That, therefore, it is denied that the cheque in question was issued by my client to
your client in discharge of any liability. Rather, your client has misused that blank
cheque with ulterior motives, after forging the same.

REPLY ON MERITS:

1. That the contents of para 1 of your legal notice are wrong and denied and whatsoever
is stated above is reiterated. It is denied that my client purchased from you client any
machines whatsoever. Rather, my client helped your client to keep your machines in
his godown/shop for disposal. Therefore, it is denied that the cheque in question was
issued in discharge of any liability towards my client, as alleged in this Para.
2. That the contents of Para 2 are denied for want of knowledge. However, it is
reiterated that my client ever issued any cheque, in the manner as alleged by you.
3. That, in reply to Para 3 of your legal notice, what is stated above is reiterated. It is
submitted that your client was not entitled to use that cheque for encashment and
deposit the same in his bank.

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4. That the contents of paras 4 &5 are denied for want of knowledge. However, it is
reiterated that any cheque was issued in discharge of any liability towards my client to
your client.
5. That the contents of Para 6 need no comments. However, it is denied that my client
committed any offence whatsoever.

In view of aforesaid facts and circumstances, you are being advised to further advice your
client to withdraw the said notice under reply and further advise him not to drag my client in
any frivolous litigation, failing which my client shall be constrained to contest the same,
besides proceeding against your client under the relevant provisions of law, at the costs, risks
and consequences of your client only.
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Yours Sincerely, Advocate

Copy kept in my office for future reference and use.

Very Short Question-Answer

Q. What do you mean by deed poll and deed indenture? ANS. There are 2 types
of deed:

A Deed of Indenture – being a deed to which two or more persons are party, evidencing
some act/agreement between them other than simply their consent to jointly express a
common intention (ie. a conveyance would be an Indenture – one party wanting to sell and
one party to buy, so two different intentions); and

A Deed Poll – being a deed made by and expressing the intention of 1 party only, or made
by two or more persons joining together to express a common intention (i.e. a deed declaring
a change of name).
You should be aware that if a deed is a contractual document then it is referred to as a
Specialty (for example a loan evidenced in a deed).

Q. What do you mean by the lease deed?

ANS. A lease deed is a written contract between a landlord (lessor) and tenant (lessee),

which states that the landlord would receive a periodic payment in exchange of allowing the
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tenant to use and occupy the property. The lease deed also defines the terms and conditions
that govern the relationship between a landlord and a tenant during the period of lease.

A lease deed is generally required when the property is leased for a long period of time,
ranging between 1-5 years or even longer. In such cases, a lease deed plays an important role
to govern the relationship between the landlord and tenant and lays down the provisions
legally binding over them.

Q. What is will deed?

ANS. WILL is a document by which the Testator (person making the WILL) directs /
specifies how his/ her net wealth (assets less liabilities) should be distributed. So it is a wish
which needs to be fulfilled post hi/ her demise.

It is made and signed by the Testator (person making the WILL) in which he/ she lists down
all assets owned and acquired by him/ her and also debts payable by him/ her. It needs to be
witnessed as well.
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Deed means any document with a legal purpose which could mean anything from a sale / buy
transaction to a debt repayment obligation etc.

Q. What do you mean by codicil?

ANS. A document that is executed by a person who had previously made his or her will,

to modify, delete, qualify, or revoke provisions contained in it.

A codicil effectuates a change in an existing will without requiring that the will be re-
executed. The maker of the codicil identifies the will that is to be changed by the date of its
execution. The codicil should state that the will is affirmed except for the changes contained
therein. The same formalities that are necessary for the valid execution of a will must be
observed when a codicil is executed. Failure to do so renders the codicil void.

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