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The Indian Law Reporters

November 28th, 2011 Comments off

Education in India

November 23rd, 2011 Comments off

Jobs in India, Employment News Previous Issues Weekly (In descending order)

November 21st, 2011 Comments off

Jobs in India, Job Highlights (12 NOVEMBER 2011 -18 NOVEMBER 2011)

November 21st, 2011 Comments off

Jobs in India, Job Highlights (05 NOVEMBER 2011 -11 NOVEMBER 2011)

November 21st, 2011 Comments off

Arbitration and Conciliation an Interpretation

November 21st, 2011 Comments off
Arbitration is a legal term, which is used to describe a process to settle disputes between two or more than two parties. People who are appointed to settle this dispute is well known as “Arbitrators”. This Arbitration process could be judicial or non-judicial. The matter is solved in the arbitration court which is also well known as arbitral tribunal. Sometimes the tribunals are tripartite and have tree arbitrators. It is always advisable to appoint expert arbitrator in case of any technical case. The judgment and decision of the arbitrators after a judicial practice, taking into consideration all the evidence or proof, is well known as “Award”. It is final and binding between the parties.
Arbitration is a dispute resolution procedure, which is an alternative to try your dispute in the court system with a jury and judge. This is a settlement technique in which a third party reviews the case and imposes a decision, which is legally binding for both sides. Today, Arbitration dispute resolution has become a popular way to identify the root cause of a problem and to build a solution strategy. If you have a dispute with securities professional or a security firm, firstly, you should try to resolve it with the firm. Review your client account agreement to determine whether you have agreed to procedures regarding dispute resolution. Most client account agreements need the investor to take any dispute to arbitration, and not directly to court. We assist our clients with resolution of disputes in all areas of general and special practices, including commerce, industry and finance. Our highly qualified & experienced attorney make an effort to prevent disputes by ensuring proper documentation and by tactfully handling the case/ dispute etc. Our Law Firm strives to achieve the best commercial results for its clients. The law firm’s attorney are highly qualified and has dealt with hundreds arbitration & conciliation in India. 
The Areas of expertise are:
Negotiation
Conciliation
Preparing and presenting the case before arbitrator
Domestic and International Arbitration
Enforcement of Awards
Purpose of Arbitration Act is to provide quick redressal to commercial dispute by private Arbitration. Quick decision of any commercial dispute is necessary for smooth functioning of business and industry. Internationally, it is accepted that normally commercial disputes should be solved through arbitration and not through normal judicial system. Hence, the need of Alternate Dispute Resolution. (ADR). There are four methods of ADR – negotiation, mediation, conciliation and arbitration. ‘Negotiation’ is cheapest and simplest method. If it does not work, mediation through a mediator can be tried. If it does not work, conciliation and arbitration will be useful. Arbitration Act makes provision for conciliation and arbitration as ADR mechanisms. An arbitrator is basically a private judge appointed with consent of both the parties. Object of arbitration is settlement of dispute in an expeditious, convenient, inexpensive and private manner so that they do not become the subject of future litigation between the parties.
Scheme of the Act –  The Act is divided in to following parts : (a) Part I – Domestic arbitration. (b) Part II – Enforcement of foreign awards. (c) Part III – Conciliation procedures. (d) Part IV – Supplementary provisions. (e)  First Schedule – Convention on recognition and enforcement of foreign arbitral award as per New York convention (f)  Second Schedule – Protocol on Arbitration clauses (g) Third Schedule – Convention on the execution of foreign arbitral awards as per Geneva Convention.
LAW BASED ON UNCITRAL MODEL LAW – The present Act is based on model law drafted by United Nations Commission on International Trade Laws (UNCITRAL), both on domestic arbitration as well as international commercial arbitration, to provide uniformity and certainty to both categories of cases.
MATTERS NOT REFERABLE TO ARBITRATION – Certain matters which are not arbitrable are – * Suits for divorce or restitution of conjugal rights * Taxation * Non-payment of admitted liability * Criminal matters.
Arbitration Agreement – The foundation of an arbitration is the arbitration agreement between the parties to submit to arbitration all are certain disputes which have arisen or which may arise between them. Thus, the provision of arbitration can be made at the time of entering the contract itself, so that if any dispute arises in future, the dispute can be referred to arbitrator as per the agreement. It is also possible to refer a dispute to arbitration after the dispute has arisen. Arbitration agreement may be in the form of an arbitration clause in a contract or in the form of a separate agreement. The agreement must be in writing and must be signed by both parties. The arbitration agreement can be by exchange of letters, document, telex, telegram etc. [section 7].
Court must refer the matter to arbitration in some cases – If a party approaches court despite the arbitration agreement, the other party can raise objection. However, such objection must be raised before submitting his first statement on the substance of dispute. Such objection must be accompanied by the original arbitration agreement or its certified copy. On such application the judicial authority shall refer the parties to arbitration. Since the word used is “shall”, it is mandatory for judicial authority to refer the matter to arbitration. [section 8]. However, once first statement to court is already made by the opposite party, the matter has to continue in the court. Once an application is made by other party for referring the matter to arbitration, the arbitrator can continue with arbitration and even make an arbitral award.
APPOINTMENT OF ARBITRATOR – The parties can agree on a procedure for appointing the arbitrator or arbitrators. If they are unable to agree, each party will appoint one arbitrator and the two appointed arbitrators will appoint the third arbitrator who will act as a presiding arbitrator. [section 11(3)]. If one of the party does not appoint an arbitrator within 30 days, or if two appointed arbitrators do not appoint third arbitrator within 30 days, the party can request Chief Justice to appoint an arbitrator. [section 11(4)]. The Chief Justice can authorise any person or institution to appoint an arbitrator. [Some High Courts have authorised District Judge to appoint an arbitrator]. In case of international commercial dispute, the application for appointment of arbitrator has to be made to Chief Justice of India. In case of other domestic disputes, application has to be made to Chief Justice of High Court within whose jurisdiction the parties are situated. [section 11(12)]
CHALLENGE TO APPOINTMENT OF ARBITRATOR – An arbitrator is expected to be independent and impartial. If there are some circumstances due to which his independence or impartiality can be challenged, he must disclose the circumstances before his appointment. [section 12(1)]. Appointment of Arbitrator can be challenged only if (a) Circumstances exist that give rise to justifiable doubts as to his independence or impartiality (b) He does not possess the qualifications agreed to by the parties. [section 12(3)]. Appointment of arbitrator cannot be challenged on any other ground.. The challenge to appointment has to be decided by the arbitrator himself. If he does not accept the challenge, the proceedings can continue and the arbitrator can make the arbitral award. However, in such case, application for setting aside arbitral award can be made to Court. If the court agrees to the challenge, the arbitral award can be set aside. [section 13(6)]. Thus, even if the arbitrator does not accept the challenge to his appointment, the other party cannot stall further arbitration proceedings by rushing to court. The arbitration can continue and challenge can be made in Court only after arbitral award is made.
Conduct of Arbitral Proceedings – The Arbitral Tribunal should treat the parties equally and each party should be given full opportunity to present his case. [section 18]. The Arbitral Tribunal is not bound by Code of Civil Procedure, 1908 or Indian Evidence Act, 1872. [section 19(1)].  The parties to arbitration are free to agree on the procedure to be followed by the Arbitral Tribunal. If the parties do not agree to the procedure, the procedure will be as determined by the arbitral tribunal.
LAW OF LIMITATION APPLICABLE – Limitation Act, 1963 is applicable. For this purpose, date on which the aggrieved party requests other party to refer the matter to arbitration shall be considered. If on that date, the claim is barred under Limitation Act, the arbitration cannot continue. [section 43(2)]. If Arbitration award is set aside by Court, time spent in arbitration will be excluded for purpose of Limitation Act. [so that case in court or fresh arbitration can start].
FLEXIBILITY IN RESPECT OF PROCEDURE, PLACE AND LANGUAGE – Arbitral Tribunal has full powers to decide the procedure to be followed, unless parties agree on the procedure to be followed. [section 19(3)]. The Tribunal also has powers to determine the admissibility, relevance, materiality and weight of any evidence. [section 19(4)]. Place of arbitration will be decided by mutual agreement. However if the parties do not agree to the place, the same will be decided by tribunal. [section 20]. Similarly, language to be used in arbitral proceedings can be mutually agreed. Otherwise, Arbitral Tribunal can decide. [section 22].
SUBMISSION OF STATEMENT OF CLAIM AND DEFENCE – The claimant should submit statement of claims, points of issue and relief or remedy sought. The respondent shall state his defence in respect of these particulars. All relevant documents must be submitted. Such claim or defence can be amended or supplemented any time [section 23].
HEARINGS AND WRITTEN PROCEEDINGS – After submission of documents and defence, unless the parties agree otherwise, the Arbitral Tribunal can decide whether there will be oral hearing or proceedings can be conducted on the basis of documents and other materials. However, if one of the parties requests, the hearing shall be oral. Sufficient advance notice of hearing should be given to both the parties. [section 24]. [Thus, unless one party requests, oral hearing is not compulsory].
SETTLEMENT DURING ARBITRATION – It is permissible for parties to arrive at mutual settlement even when arbitration is proceeding. In fact, even the Tribunal can make efforts to encourage mutual settlement. If parties settle the dispute by mutual agreement, the arbitration shall be terminated. However, if both parties and the Arbitral Tribunal agree, the settlement can be recorded in the form of an arbitral award on agreed terms. Such Arbitral Award shall have the same force as any other Arbitral Award. [section 30].
Arbitral Award – Decision of Arbitral Tribunal is termed as ‘Arbitral Award’.  Arbitrator can decide the dispute ex aequo et bono (In justice and in good faith) if both the parties expressly authorise him to do so. [section 28(2)]. The decision of Arbitral Tribunal will be by majority. The arbitral award shall be in writing and signed by the members of the tribunal. [section 29]. The award must be in writing and signed by the members of Arbitral Tribunal. [section 31(1)].. It must state the reasons for the award unless the parties have agreed that no reason for the award is to be given. [section 31(3)]. The award should be dated and place where it is made should be mentioned. Copy of award should be given to each party. Tribunal can make interim award also. [section 31(6)].
Cost of Arbitration – Cost of arbitration means reasonable cost relating to fees and expenses of arbitrators and witnesses, legal fees and expenses, administration fees of the institution supervising the arbitration and other expenses in connection with arbitral proceedings. The tribunal can decide the cost and share of each party. [section 31(8)]. If the parties refuse to pay the costs, the Arbitral Tribunal may refuse to deliver its award. In such case, any party can approach Court. The Court will ask for deposit from the parties and on such deposit, the award will be delivered by the Tribunal. Then Court will decide the costs of arbitration and shall pay the same to Arbitrators. Balance, if any, will be refunded to the party. [section 39].
Intervention by Court – One of the major defects of earlier arbitration law was that the party could access court almost at every stage of arbitration – right from appointment of arbitrator to implementation of final award. Thus, the defending party could approach court at various stages and stall the proceedings. Now, approach to court has been drastically curtailed. In some cases, if an objection is raised by the party, the decision on that objection can be given by Arbitral Tribunal itself. After the decision, the arbitration proceedings are continued and the aggrieved party can approach Court only after Arbitral Award is made. Appeal to court is now only on restricted grounds. Of course, Tribunal cannot be given unlimited and uncontrolled powers and supervision of Courts cannot be totally eliminated.
ARBITRATION ACT HAS OVER-RIDING EFFECT – Section 5 of Act clarifies that notwithstanding anything contained in any other law for the time being in force, in matters governed by the Act, the judicial authority can intervene only as provided in this Act and not under any other Act..
Conciliation – Part III of the Act makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement. After such agreement they may draw and sign a written settlement agreement. It will be signed by the conciliator. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator.
OFFER FOR CONCILIATION – The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected. [section 62] All matters of a civil nature or breach of contract or disputes of movable or immovable property can be referred to conciliation. However, matters of criminal nature, illegal transactions, matrimonial matters like divorce suit etc. cannot be referred to conciliation.
Enforcement of Foreign Awards – The foreign awards which can be enforced in India are as follows : – (a) New York convention award (made after 11th October, 1960) (b) Geneva convention award – made after 28th July, 1924, but before the concerned Government signed the New York convention. Since most of the countries have signed New York convention, normally, New York convention awards are enforceable in India. New York convention was drafted and kept in United Nations for signature of member countries on 21st December, 1958. Each country became party to the convention on the date on which it signed the convention.
Party which intends to enforce a foreign award has to produce the arbitral award and agreement of arbitration [original or its certified copy] to the district court having jurisdiction over the subject matter of the award. [section 47]. The enforcement of award can be refused by court only in cases specified in section 48. Otherwise, the foreign award is enforceable through court as if it is a decree of the court. [section 49]. If the court declines to enforce the arbitral award, appeal can be made to the court where appeal normally lies from the district court. However, no further appeal can be made (except appeal to Supreme Court) – (section 50). [Probably, the aggrieved party may be able to approach International Court of Justice, as the convention is an international convention, signed by many of the member countries].
One advantage of foreign award, according to foreign parties, is that Indian courts come into picture only at the time of implementation of award. The courts can refuse to implement the award only on limited grounds.
CONCILIATION
Conciliation is another dispute resolution process that involves building a positive relationship between the parties of dispute, however, it is fundamentally different than mediation and arbitration in several respects. Conciliation is a method employed in civil law countries, like Italy, and is a more common concept there than is mediation. While conciliation is typically employed in labour and consumer disputes, Italian judges encourage conciliation in every type of dispute . The “conciliator” is an impartial person that assists the parties by driving their negotiations and directing them towards a satisfactory agreement. It is unlike arbitration in that conciliation is a much less adversarial proceeding; it seeks to identify a right that has been violated and searches to find the optimal solution.
Conciliation tries to individualize the optimal solution and direct parties towards a satisfactory common agreement. Although this sounds strikingly similar to mediation, there are important differences between the two methods of dispute resolution. In conciliation, the conciliator plays a relatively direct role in the actual resolution of a dispute and even advises the parties on certain solutions by making proposals for settlement. In conciliation, the neutral is usually seen as an authority figure who is responsible for the figuring out the best solution for the parties. The conciliator, not the parties, often develops and proposes the terms of settlement. The parties come to the conciliator seeking guidance and the parties make decisions about proposals made by conciliators. In this regard, the role of a conciliator is distinct from the role of a mediator. The mediator at all times maintains his or her neutrality and impartiality. A mediator does not focus only on traditional notions of fault and a mediator does not assume sole responsibility for generating solutions. Instead, a mediator works together with the parties as a partner to assist them in finding the best solution to further their interests. A mediator’s priority is to facilitate the parties’ own discussion and representation of their own interests, and guide them to their own suitable solution- a good common solution that is fair, durable, and workable. The parties play an active role in mediation, identifying interests, suggesting possible solutions, and making decisions concerning proposals made by other parties. The parties come to mediator seeking help in finding their own best solution.
Also the role of the attorneys is different in mediation. Attorneys are more active in mediation in generating and developing innovative solutions for settlement. In conciliation, they generally offer advice and guidance to clients about proposals made by conciliators.
Conciliation and mediation both look to maintain an existing business relationship and to rekindle a lost balance of power between two parties. These concepts are sometimes used as synonyms, but they do indeed vary substantially in their procedures. In mediation, the mediator controls the process through different and specific stages: introduction, joint session, caucus, and agreement, while the parties control the outcome. By contrast, in conciliation the conciliator may not follow a structured process, instead administering the conciliation process as a traditional negotiation, which may take different forms depending on the case.
Conciliation is used almost preventively, as soon as a dispute or misunderstanding surfaces: a conciliator pushes to stop a substantial conflict from developing. Mediation is closer to arbitration in the respect that it ”intervenes” in a substantial dispute that has already surfaced that is very difficult to resolve without “professional” assistance. The parties approach mediation as an alternative method to resolve their dispute, due to the fact that they both recognize that the conflict has grown potentially serious enough for litigation. Mediation may be used, however, any time after the emergence of a dispute, including the early stages.
Each of the ADR (alternative dispute resolution) processes addressed herein, arbitration, mediation, and conciliation, provides important benefits to parties and may be seen as complementary to the judicial process. In the United States, mediation has emerged as perhaps the most predominant ADR process because it affords the parties the opportunity to develop settlements that are practical, economical, and durable. For commercial disputes, mediation also offers the opportunity to create innovative solutions to business disputes that further the unique interests of the parties in an analytical framework that is broader than traditional legal rights and remedies. In this sense, the mediation process may be used to secure “business solutions to business disputes,” because it encourages the parties to consider all the dimensions of a dispute, including both legal issues and business interests. In all parts of the world, including North and South America, Asia, and India, large and small commercial entities are recognizing the business benefits of mediation. According to international and European trends, mediation is emerging as an effective and often preferred method for private commercial companies and government agencies to fulfil their organizational objectives by privately and promptly resolving disputes in a manner that saves time, money, and business relationships.
Part III of the Arbitration and Conciliation Act 1996 makes provision for conciliation proceedings. In conciliation proceedings, there is no agreement for arbitration. In fact, conciliation can be done even if there is arbitration agreement. The conciliator only brings parties together and tries to solve the dispute using his good offices. The conciliator has no authority to give any award. He only helps parties in arriving at a mutually accepted settlement. After such agreement they may draw and sign a written settlement agreement. It will be signed by the conciliator. However after the settlement agreement is signed by both the parties and the conciliator, it has the same status and effect as if it is an arbitral award. Conciliation is the amicable settlement of disputes between the parties, with the help of a conciliator.
Offer for conciliation – The conciliation proceedings can start when one of the parties makes a written request to other to conciliate, briefly identifying the dispute. The conciliation can start only if other party accepts in writing the invitation to conciliate. Unless there is written acceptance, conciliation cannot commence. If the other party does not reply within 30 days, the offer for conciliation can be treated as rejected. [section 62] All matters of a civil nature or breach of contract or disputes of movable or immovable property can be referred to conciliation. However, matters of criminal nature, illegal transactions, matrimonial matters like divorce suit etc. cannot be referred to conciliation.
ARBITRATION
Arbitration is an ADR (alternative dispute resolution) method where the disputing parties involved present their disagreement to one arbitrator or a panel of private, independent and qualified third party “arbitrators.” The arbitrator(s) determine the outcome of the case. While it may be less expensive and more accessible than trial, the arbitration process has well-defined disadvantages. Some of disadvantages include the risk losing, formal or semi-formal rules of procedure and evidence, as well as the potential loss of control over the decision after transfer by the parties of decision-making authority to the arbitrator. By employing arbitration, the parties lose their ability to participate directly in the process. In addition, parties in arbitration are confined by traditional legal remedies that do not encompass creative, innovative, or forward-looking solutions to business disputes.
Purpose of Arbitration Act is to provide quick redressal to commercial dispute by private Arbitration. Quick decision of any commercial dispute is necessary for smooth functioning of business and industry. Internationally, it is accepted that normally commercial disputes should be solved through arbitration and not through normal judicial system. Hence, the need of Alternate Dispute Resolution. (ADR). There are four methods of ADR – negotiation, mediation, conciliation and arbitration. ‘Negotiation’ is cheapest and simplest method. If it does not work, mediation through a mediator can be tried. If it does not work, conciliation and arbitration will be useful. Arbitration Act makes provision for conciliation and arbitration as ADR mechanisms. An arbitrator is basically a private judge appointed with consent of both the parties. Object of arbitration is settlement of dispute in an expeditious, convenient, inexpensive and private manner so that they do not become the subject of future litigation between the parties.
Arbitration is a method of having a dispute between two or more parties resolved by impartial persons who are knowledgeable in securities industry disputes. Those persons are called arbitrators. Arbitration of disputes with broker/dealers has long been used as an alternative to the courts because it is devised as a prompt and inexpensive means of resolving complicated issues. There are certain laws governing the conduct of an arbitration proceeding that must be considered by those planning to use arbitration to resolve the dispute. Most importantly, perhaps, is the fact that an arbitration award is final and binding, subject to review by a court only on a very limited basis. Parties should recognize, too, that in choosing arbitration as a means of resolving a dispute, they generally give up their right to pursue the matter through the courts.
Although most business in the securities industry is completed without a problem, disputes and controversies will occasionally arise. Such disputes and controversies can be resolved by impartial arbitration at one of the organizations listed in the services directory. Arbitrations are conducted in accordance with the Uniform Code of Arbitration (Uniform Code or UCA) as developed by the Securities Industry Conference on Arbitration (SICA) and the rules of the sponsoring organization where the claim is filed.
There are some differences among the rules of the sponsoring organizations, such as, the time to serve and file answers to claims, who may serve as public arbitrators, arbitrator selection methods, service of award methods, the availability of prior awards, and whether your name will be made publicly available. Any questions regarding arbitration may be addressed to the Directors of Arbitration or their staff at the sponsoring organizations. Significant differences between the Uniform Code and the procedures of the self-regulatory organizations (SROs) will be highlighted in this guide.
In addition to initiating an arbitration, investors may file their complaints with the appropriate regulatory authorities, such as the Securities and Exchange Commission (SEC), State Securities Commission, or one of the SRO’s listed in the Services Directory, when they believe there has been fraud or that other investors may be at risk. The regulatory agencies may then investigate the complaint and, if warranted, censure, fine, or suspend a wrongdoer. These agencies normally do not recover investor’s losses which can be done through arbitration…

Judicial India

November 20th, 2011 Comments off
NATIONAL COMMISSION TO REVIEW THE WORKING OF THE CONSTITUTION
A Consultation Paper* on ALL INDIA JUDICIAL SERVICE
* The views expressed and the suggestions contained in this paper are intended for the sole purpose of generating public debate and eliciting public response.
January 8, 2001
VIGYAN BHAVAN ANNEXE, NEW DELHI – 110 011
E-mail: <ncrwc@nic.in> Fax No.  011-3022082
Advisory Panel
on
Strengthening of the institutions of Parliamentary Democracy;
(Working of the Legislature, Executive and Judiciary;
their accountability; problems of Administrative,
Social and Economic Cost of Political
Instability; Exploring the possibilities
of stability within the discipline
of Parliamentary Democracy)
Member-in-charge
Justice Shri B.P. Jeevan Reddy
Chairperson
Justice Shri H.R. Khanna
Members
q       Shri K. Parasaran
q       Dr. Jayaprakash Narayan
q       Dr. V. A. Pai Panandikar
Member-Secretary
Dr. Raghbir Singh
ACKNOWLEDGEMENT
            This Consultation Paper on ‘All India Judicial Service’ is based on a paper prepared by Justice Shri B.P. Jeevan Reddy, Member of the Commission.
 
The Commission places on record its profound appreciation of and gratitude to Justice Shri B.P. Jeevan Reddy for his contribution.
CONTENTS
Pages
I.
Basic Constitutional Provisions relating to Subordinate Judiciary
 
751
II.
All – India Judicial Service
 
751
III.
Suggestions of the 1st Law Commission
 
753
IV.
Later Recommendations of the Law Commission
 
753
V.
Recommendations of the National Judicial Pay Commission
 
754
VI.
Some relevant considerations
 
756
 
Questionnaire
758
I.  Basic Constitutional Provisions relating to Subordinate Judiciary
 
Chapter VI of Part VI of the Constitution of   India deals with subordinate courts.  Clause (1) of Article 233 says that “appointments of persons to be, and the posting and promotion of, district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.”  Clause (2) is not relevant for the purpose.  Article 233A is also not relevant since it deals with validation of appointments of, and judgments, etc. delivered by certain district judges whose appointment was declared to be illegal by the Supreme Court.  Article 234 says that appointments of persons other than district judges to the judicial service of a State shall be made by the Governor of the State in accordance with the rules made by him in that behalf after consultation with the State Public Service Commission and with the High Court exercising jurisdiction in relation to such State.  Article 235 vests control over the subordinate courts in the High Court.  It reads “The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any posts inferior to the post of district judges shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorizing the High Court to deal with him otherwise than in accordance with the conditions of his service prescribed under such law”.  Article 236 is an interpretation clause.  It defines the expressions “district judge” and “judicial service” respectively.  It is sufficient to notice the definition of “district judge”.  It includes “judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge”.  It is not necessary to notice article 237 for the present purpose.
 
II.   All – India Judicial Service
 
2.         Article 309 of the Constitution which occurs in chapter 1 of Part XIV deals with the recruitment and conditions of service of persons serving the Union or a State.  It empowers the appropriate Legislature to regulate the recruitment and conditions of service of persons appointed to public services and post in connection with the affairs of the Union or of any State.  The proviso however says that until the appropriate Legislature shall make the rules, it shall be open to the President, in the case of services under the Union, and to the Governor, in respect of the services under the State, to make rules for the said purpose.  Article 310, which incorporates pleasure clauses, is not relevant for the present purpose.  Article 311 contains three clauses.  Clause (1) says that no member of a civil service, whether of the Union or the State, shall be dismissed or removed by an authority subordinate to that by which he was appointed.  Clauses (2) and (3) go together.  Clause (2) provides for a disciplinary inquiry to be held against a member of civil service before a punishment is imposed upon him.  The proviso to Clause (2) creates three exceptions to the above rule which again is not necessary to notice for the present purpose.  Clause (3) which qualifies the second   proviso can equally be omitted from consideration.  Article 312 deals with the All-India services.  Prior to the Constitution (Forty-second Amendment) Act, 1976, it did not specifically refer to an All-India Judicial Service.  It was however brought in along with Clauses (3) and (4) by the Constitution Amendment Act.  As it stands today, Article 312 reads as thus:
 
“312.     All-India services- (1) Notwithstanding anything in [Chapter VI of Part VI or Part XI], if the Council of States has declared by resolution supported by not less than two-thirds of the members present and voting that it is necessary or expedient in the national interest so to do, Parliament may by law provide for the creation of one or more all-India services [(including an all-India judicial service)] common to the Union and the States, and, subject to the other provisions of this Chapter, regulate the recruitment, and the conditions of service of persons appointed, to any such service.
 
(2)                    The services known at the commencement of this Constitution as the Indian Administrative Service and the Indian Police Service shall be deemed to be services created by Parliament under this article.
 
(3)                    The all-India judicial service referred to in clause (1) shall not include any post inferior to that of a district judge as defined in article 236.
 
(4)                                         The Law providing for the creation of the all-India judicial service aforesaid may contain such provisions for the amendment of Chapter VI of Part VI as may be necessary for giving effect to the provisions of that law and no such law shall be deemed to be an amendment of this Constitution for the purposes of Article 368.”
 
3.         A reading of the afore-mentioned provision of the Constitution yields the following features:-
 
(i)        The subordinate courts/subordinate judiciary is a State subject.  The appointment of the members of the subordinate judiciary is to be made by the Governor.  However such appointment is to be made in the case of district judge, in consultation with the High Court and in the case of other posts, in consultation with the Public Service Commission and the High Court.  As matter of practice, selection of district judges is made by the High Court on the basis of which, formal order of appointment is issued by the Governor.  In case of Munsiff/ Magistrates, the selection is made by the State Public Service Commission and the concerned High Court acting together and orders of appointment are issued by the Governor on the basis of such selection.
 
(ii)     Though Clause (1) of Article 233 does not expressly say that the appointment of district judges can be regulated by the rules made under the proviso to Article 309, a conjoint reading of both the provisions would show that rules can be made under the proviso to Article 309 with respect to method of appointment of district judges also  subject  of course to the provisions to the Constitution including Articles 233 and 160.  As a matter of fact, such rules have been made in several States.
(iii)    The control over the subordinate courts is vested in the High Court.  The expression “control” has been construed in a highly expansive manner by the Supreme Court to take in posting, transfer, disciplinary matters and all other conditions of service.
 
(iv)    If the Council of States (Rajya Sabha) declares by resolution supported by not less than two-third of members present and voting that it is necessary or expedient in the national interest to do so, Parliament may by law provide for creation of an All-India Judicial Service (AIJS) common to the Union and the States and also to regulate the recruitment and conditions of service of persons appointed to such All-India service.  This proviso is made notwithstanding the provisions contained in chapter VI of Part VI of the Constitution.  However, the All-India judicial service cannot include any post inferior to that of district judge (as defined in Article 236).  The law made by Parliament providing for creation of AIJS as contemplated by Clause (1) of Article 312 may contain such provisions for the amendment of chapter VI of Part VI, as    may be necessary to give effect to the provisions of that clause but no such law shall be deemed to be an amendment of the Constitution within the meaning of Article 368.
 
4.         So far no such All-India Judicial Service has been constituted though this matter has been receiving the attention of several concerned bodies and organizations for the last few decades.  It would be appropriate to refer to the several suggestions made in this behalf.
 
III.  Suggestions of the 1st Law Commission
 
5.         The first Law Commission recommended in its fourteenth report (volume 1, Chapter IX, Para 59, page 184) the creation of an AIJS.  It opined that such a course is necessary in the interest of efficiency of the subordinate judiciary.  This proposal was considered in the Law Ministers’ Conference held in the year 1960 where strong opinions were expressed for and against the said proposal.  The proposal was accordingly shelved.  It appears that the Chief Justices Conferences held in 1961, 1963 and 1965 favoured the said recommendation but when the views of the State Governments and the High Courts were sought, there was a difference of opinion.  More than half of the States and High Courts opposed to the proposal.
 
IV.  Later Recommendations of the Law Commission
 
6.         In August 1969, the Government requested the then Chief Justice of India to offer his views on the said proposal. The learned Chief Justice opined that the proposal was not feasible in the face of the then obtaining provisions of the Constitution.  In March 1972, however, the learned Chief Justice while suggesting to the Government to improve the conditions of service of subordinate judiciary, also suggested examination of the question of having an AIJS.
 
7.         The 8th Law Commission while examining the problem of arrears in trial courts, recommended formation of an AIJS.  (77th Report Chapter IX Para 9.6, page 32)
 
8.         Even after the amendment of Article 312 by the forty-second amendment, expressly providing for the formation of an AIJS, the opposition to this idea from several High Courts and State Governments has not abated.
 
9.         This matter was again considered by the Law Commission in its 116th report (submitted in November, 1986).  The report dealt with three objections, generally put forward against said proposal, namely :-
 
(a)           inadequate knowledge of regional language would corrode judicial efficiency both with regard to understanding and appreciating parole evidence pronouncing judgments;
(b)           promotional avenues of the members of the State judiciary would be severely curtailed causing heart burning to those who have already entered the service and manning of the State judicial service would be adversely effected; and
 
(c)           erosion of control of the High Court over subordinate judiciary would impair independence of the judiciary.
 
10.        The Law Commission considered each of the above objections at length and rejected them as unsubstantial.  It held that a member of the All-India Judicial Service would be required to learn one more language over and above his mother tongue and once he is allotted to a State keeping in view the said fact, no problems would arise on the ground of language.  Reference was made to members of Indian Administrative Service in this behalf.  It also referred to the fact that prior to the independence there were provinces  like Bombay and Madras, which comprised more than one linguistic area.  For example, the Bombay province comprised Gujarati speaking, Marathi speaking and Kannada speaking areas and Madras province included Tamil speaking,  Telugu speaking  and Malayalam speaking areas.  If no difficulty was found in those provinces  at that time, the Commission observed, there is no reason to feel that the language question should pose a problem.  With respect to the second objection, the Commission observed that in as much as according to the present rules in force in various States about  50%  (if not, more) vacancies in the cadre of District Judges are reserved to be filled by promotion from the lower cadres and because the members of AIJS will be allocated only against the vacancies to be filled by direct recruitment, the promotional prospects of judicial officers (below district judge level)  will in no way be affected.  Similarly,  it was held with respect to the third objection,  that the control of the High Court will in no manner be diminished or curtailed because on allotment to a State, the allottees (members of AIJS) would become members of the State Judicial Service for all practical purposes with the difference that “while at present it (High Court) recommends various things such as promotion or disciplinary action to the Governor, it would be recommending the same to the National Judicial Service Commission which, in turn,  would make necessary recommendation to the President of India  but the President of India will act in the same manner as at present it is done by the Governor having regard to the almost binding character of the recommendation of the High Court.”   Besides rejecting the third criticism, the Law Commission also emphasized the desirability of such an All-India Judicial Service in the interest of efficiency.  It made elaborate recommendations with respect to the method of recruitment, holding of examinations, scales of pay, initial pay, seniority, probation, training and so on.  (It also recommended by a separate report creation of a National Judicial Service Commission). 
 
V.   Recommendations of the National Judicial Pay Commission
 
11.        This matter has been examined by the first National Judicial Pay Commission headed by Justice  K. Jagannatha Shetty, former Judge of the Supreme Court (and comprising two retired Judges of the High Court).  Their report was submitted in the year 1999.  In the summary of recommendations published by the said Commission, it supported and reiterated the recommendations of the Law Commission contained in its Fourteenth Report (referred to herein above) for the creation of an All-India Judicial Service.   It fully  supported the reasoning given by the Law Commission in support of the said recommendation.  It then referred to the observation of the Supreme Court in the All India Judges case (AIR 1992 S.C. 165) to the effect that “the feasibility of the implementation of the recommendations of the Law Commission may be examined expeditiously and implemented as early as possible.  It is in the interest of the health of the judiciary throughout the country that this should be done.  The report of the Pay Commission then refers to the fact that the Government of India had elicited the opinions of the State Governments and High Courts in this behalf and that whereas eight State Governments agreed with the proposal and another eight State Governments gave conditional approval to the proposal, seven State Governments have opposed the same.  So far as the High Courts are concerned, it is stated that four High Courts have favoured the idea, four have given their conditional approval while three have opposed and five High Courts did not  offer any opinion in the light of the judgment  Supreme Court.    The Pay Commission had also invited the views and comments on the methodology of constituting an All India Judicial Service after considering which    it made the following recommendations:-
 
(i)         The AIJS should be constituted only in the cadre of District Judges as per provisions of Article 312 (3) of the Constitution.  The District Judges directly recruited and promoted should constitute the AIJS.
 
(ii)         The selection for direct recruitment should be by the National Judicial Commission / UPSC and the promotees by the respective High Courts.
 
(iii)        The qualification for direct recruitment to AIJS should be in conformity with that prescribed under Article 233(2) of the Constitution.
 
(iv)        Service Judges also should be allowed to compete for recruitment of AIJS, by appropriately amending Article 233(2) of the Constitution.
 
(v)         Not exceeding 25% of the posts in the cadre of District Judges in every State should be earmarked for direct recruitment.
 
(vi)        The age limit for recruitment to AIJS should be between 35 years to 45 years.
 
(vii)       The procedure for selection shall be by written examination followed by viva voce.
 
(viii)       Appointment : The National Judicial Commission / UPSC, after selecting the candidates for direct recruitment to the cadre of District Judges, must allocate to the States / UTs, the candidates equal to the vacancies that are surrendered by them.  The High Court thereupon will recommend those names to the Governor for appointment as per Article 233 of the Constitution.
 
(ix)        Training : The prescribed training is only after the appointment.
 
(x)        Seniority : All India seniority is as per the ranking in the select list.
 
(xi)        Inter-se Seniority in the State/UT : The inter-se seniority between direct recruits and promotees  shall be determined according to the date  of allotment and date of promotion.  Such direct recruits must thus be annexed to the respective State Judicial Service within the three-tier system.
 
(xii)       Court Language: Recording of the deposition should be: (1) Regional Language (to be recorded by the Court Officer); and (2) English (by the Presiding Officer).
 
VI.  Some relevant considerations
 
12.        The National Commission to Review the Working of the Constitution is of the opinion that while examining the idea  of All-India Judicial Service the following factors may also have to be kept in view:-
 
(a)                   Whether the creation of AIJS would lead to further erosion of the powers of the States whose powers under the present dispensation  are not many.  By virtue of several entries in the Union List (which provide for the Union taking over certain subjects within the State List in case the Parliament declares it to be expedient in public interest) and as a result of the 42nd Amendment to the Constitution, the powers of the States have already been adversely affected.  Is it advisable to diminish them further by taking away the power of selection from the High Courts and by vesting it in a Central body?
 
(b)                   The provisions of Article 312 of the Constitution as amended by the Constitution (Forty-second Amendment) Act have really created a problem.  According to clause (3) of the said Article, such service shall not include any post inferior to that of a “district judge” as defined in Article 236.  Now if the idea is to induct bright and young persons to the service from the age group 24 to 30, such persons have to be posted soon after selection  and training  as district judges.  District judges not only try serious criminal cases like murder and dacoity but also exercise appellate jurisdiction in both criminal and civil matters.  They also exercise original jurisdiction in certain civil matters.   Would it be advisable to entrust the direct recruits of the said age group with such vast powers and would they be able to take upon such task?     However  if the idea is (as recommended by the first National Judicial Pay Commission) that the direct recruits are to be drawn from the age group 35 to 45 would there be any improvement over the present  position?  This is because age group 35 to 45 means that they are all practicing lawyers.  If a practicing lawyer does not make good in his profession by the time he reaches the said age group, it means that he is no good.  In other words, a practicing lawyer who has made good by the said age in the profession would not like to join the AIJS and face the prospect of being posted to some other State and subject to transfer from time to time.  Indeed that is the  present difficulty faced by the High Court as well.  A lawyer who is reasonably intelligent and competent is bound to establish himself in profession by the time he reaches the age 35-40.  Such a lawyer is not generally inclined to leave his practice and join the service as district judge where he is likely to be transferred from time to time even though within the State.  That is the reason why many competent people are not coming forward to join the service, and if the service is made an All-India service, with the attending possibility of being allocated to any other State in India, and then again transfers within that State, would they not    be all the more reluctant to join such a service?
 
(c)                   There is yet another circumstance.  If you select persons between the age group 24 to 30 or 24 to 32 and post them as district judges, they would be ripe for being considered for appointment to the High Court within about 10 to 15 years.  (It may be remembered that in every High Court a particular quota is reserved to be filled from among the members of the subordinate judiciary.  (The quota so reserved varies today from 40% to 50%.)  This means that a member of AIJS would be ripe for being considered for appointment to the High Court even before he may have reached the age of 40. Desirability of such possibility should also have to be kept in mind, particularly in view of the fact that the nature of the work at the level of the High Court is of a varied character involving fields not dealt with by District Judges in the subordinate courts.
 
(d)                   Would it be advisable to amend Article 312 again by removing clause (3)?  In such a case, it will be possible to recruit young and bright persons between the age group 24-30 to AIJS and to post them as Munsiff/magistrate to start with and then they would go up the ladder in course of time.   But this course would mean that even the selection and appointment of music/magistrates would also be removed from the purview of the State and would stand transferred to a Central body.  The desirability of this course is also a matter to be kept in mind.  It may also have to be considered whether such a course would really mean any improvement over the existing situation or would it be merely a re-incarnation of the existing system with a slight modification i.e., selection and appointment (and allocation) by a central body rather than by the High Court/Public Service Commission/Sate Government?

QUESTIONNAIRE
ON
ALL INDIA JUDICAL SERVICE
 
Do you support the idea of constituting an “All India Judicial Service”?
 
2.       If you answer to Question No. 1 is in the affirmative, what should be the eligibility criteria for the candidates? How do you meet the handicap of not knowing the local language in which the subordinate courts transact most of their work?
 
3.       Do you agree that amendment of Article 312 effected by the Constitution (42nd Amendment) Act, 1976 has created difficulties in the way of constitution of an All India Judicial Service?  If yes, do you agree with the proposal to delete clause (3) of Article 312 as suggested at page 18 of the Consultation Paper?
 
4.       What are your views on the idea and queries posed in sub-paragraphs (a) to (c) at pages 14 to 17 of the Consultation Paper ?
 
5.       Have you any other suggestions to make on the issues discussed in the Consultation Paper?  If so, please state them.
 The Institution
LEGAL STATUS AND GOVERNANCE
NJA is an independent society, established in 1993 under the Societies Registration Act, 1960.

The Hon’ble Chief Justice of India is the Chairman of the General Body of NJA as well as the Chairman of the Governing Council , the Executive Committee and the Academic Council of NJA.
FUNDING
NJA is fully funded by the Government of India.
MANAGEMENT AND STAFF
The Director, NJA is the Principal Executive Officer of NJA. The Director is appointed by the Chairman, the Hon’ble Chief Justice of India.

NJA academic staff positions include, in addition to the Director, one position of Additional Director (Research), three positions of Professor, six positions of Assistant Professor, six positions of Research Fellow and six positions of Law Associates.

NJA administrative officers and staff include, in addition to the Director, positions of Registrar, Additional Registrar, Chief Accounts Officer, Maintenance Engineer and other managerial and functional positions.
CAMPUS
The 63-acre NJA campus is located on the outskirts of the picturesque and ancient city of Bhopal – on a lovely hill overlooking at a distance the famous and beautiful 1000-year old lake around which the city of Bhopal is built (covering some 33 square kilometers, the massive lake is visible from space).

The NJA campus is widely acknowledged to be the best judicial education campus in the world. It has residential facilities for 144 participants, a well endowed library, conference and seminar rooms and a state-of-the -art auditorium. Recreational facilities include a fully equipped gymnasium, swimming pool, sauna, tennis, billiards and other games. The NJA campus also has a xxx seater state-of-the art stand-alone auditorium.
ACADEMIC PROGRAMMES
NJA’S academic programmes are guided by the National Judicial Education Strategy (NJES). Under NJES, NJA has established a national system for judicial education.

NJES was developed in September 2006 at a meeting of NJA and High Court Justices in Charge of Education, chaired by Hon’ble Justice K.G. Balakrishnan, Judge, Supreme Court of India (as he then was) and currently Chief Justice of India and Chairman, NJA. Hon’ble Justice S.B. Sinha, Judge, Supreme Court of India also guided the development of NJES. NJES has been further refined and developed during its implementation which commenced in January, 2007.
Salient features of NJES are summarized below.

NATIONAL JUDICIAL EDUCATION STRATEGY
The National Judicial Education Strategy (NJES) defines the philosophy, vision and mission of national judicial education.
A. Philosophy: Vision of Justice of the Constitution of India
In its preamble, the Constitution of India sets “justice, social, economic and political” as the first aim of the Republic.

Article 39A of the Constitution provides that “the State shall secure that the operation of the legal system promotes justice”.

The definition of justice in this regard is to be derived from the Constitution itself . The Indian Constitution is a “Comprehensive Code of Justice”.

The judiciary of India has played a historic role in helping to realize the vision of justice set out in the Constitution, the laws enacted under it, and judicial precedent.

The people of India have developed deep and abiding faith in the judiciary of the country as the guardians of Constitutional Rule and the Rule of Law in India. For this role, the Indian judiciary is followed as a role model throughout the world.

Judicial practice and precedent – reinforced by law – have developed “reasoning” and “rationality” as the core methodology of judicial decision making in India. The Constitutional vision of justice as well as applicable provisions of law are thus developed and applied to the fact situation before them by judges using “reasoning” and “rationality”.

Thus, the core challenge of judging is to use the methodology of reasoning and rationality to safeguard and advance the vision of justice of the Constitution of India.
B. Vision
The vision of NJES is “Judicial education enhances the delivery of Timely Justice.”
C. NJA’s Mission
NJA’s mission is to enhance timely justice, focusing on (i) delay and arrears reduction (DAR); and (ii) enhancing the quality and responsiveness of justice (QRJ).
D. Methodology/Pedagogy
NJA views continuing education as a process of “creating solutions”, and judicial education as a process of “creating solutions for strengthening the administration of justice.”

Hence there is no “teaching”, “preaching” or “training” at NJA; no “teachers” or “students”; no “trainees” or “trainors”.

Rather, judicial education at NJA brings together judges from across the country to provide them a forum to jointly identify the major obstacles facing the administration of justice and develop appropriate solutions for overcoming these obstacles. Judges will then be able to implement these solutions as appropriate, resulting in the strengthening of the administration of justice.

Solutions may involve, for example, generation and use of new/additional knowledge of law; increased application of technology and modern management methods; deployment of appropriate approaches, methods and attitudes to judging; appropriate changes to management of relationships with other stakeholders in the justice system such as lawyers; government officials; ministerial staff and litigants; development and use of new techniques and tools; and change.

To assist in this process, NJA will identify priority challenges facing the administration of justice and organize appropriate programmes to facilitate problem solving. NJA will assemble knowledge inputs (documentary; as well as experts) and new ideas that will assist judges in problem solving. NJA programmes will also provide for judges to exchange knowledge and expertise and thus transform knowledge and generate new knowledge.

This approach to judicial education as “knowledge sharing for problem solving” brings participant judges to the centre of judicial education and demands their active participation in the process of judicial education. “Teaching”, “training” and one-way transmission of information through lecturing will not be appropriate for this approach.

NJA programs will therefore seek to use interactive approaches in which participants will actively share their knowledge, experience and ideas and engage in proactive thinking. Case study, group exercises, simulations, role play, field visits ane experiential learning are all key to the pedagogical methods to be used in NJA.

Development of Law/Development of Judicial Systems
In the common law system judges play a historic role in the development of law and legal and judicial systems/institutions. The doctrine of precedent and Constitutional provisions (such as Article 142 of the Constitution) provide the legal and Constitutional basis for the Supreme Court and High Courts to develop the law as needed to respond to t he interests of justice.

Under NJES, NJA arranges conferences of High Court justices in which the Justices may assess the current status of law in various areas and reflect together on the need for future development of law to respond to the needs of the country and in the interests of justice.
E. Curriculum Development
As guided by Hon. Chief Justice of India Justice K. G. Balakrishnan, starting in February 2007, the curriculum of NJA is being developed in a responsive, demand-driven manner that meets the needs of High Courts.

The first step in the curriculum development process is the preparation of a Judicial Education Needs Assessment based on a survey of all judges to ascertain their judicial education needs. This was done for the first time in February/March, 2007. The needs expressed by judges were then reviewed by High Courts and judicial education needs were identified. High Courts also then determined determine areas of judicial education that would be delivered by their State Judicial Academy and areas to be delivered by the National Judicial Academy. High Court Justices in charge of judicial education then met at NJA to discuss the proposed NJA Calendar for 2007-2008 and also their own proposed calendars. The aim was to develop a Coordinated National Judicial Education Calendar for the country. This 2007-2008 NJA calendar is the product of this elaborate process of consultation.
F. Allocation of Responsibilities Between SJAs and NJA
To avoid duplication, a broad consensus has been developed regarding the relative responsibilities of SJAs and NJA along the following lines.

  SJA NJA
Induction Education (CJJD/JMFC/MM)
X
Orientation Education for Direct Recruits to DJ level
X
(one week orientation module at NJA, Bhopal)
Continuing Judicial Education (CJE) As needed to meet needs of judges In the following three areas: (1) “Gap Filling” – CJE on subjects where SJAs are not providing CJE. (2) CJE on issues of national importance (e.g., delay and arrears reduction and quality and responsiveness of justice). (3) Advanced CJE, at a higher level than what may be provided at SJA level.
“Gatekeeper” education (education needed to equip judges with necessary knowledge and skills for new assignments) As needed for “gap filling”, i..e., to meet needs that are not provided by SJAs
Programmes for High Court Justices
X
(1) Orientation Colloquia for Recently Elevated Justices; (2) Conferences of High Court Justices on Development of Law and Justice Systems
It is not necessary for judges to be sent to Bhopal to acquire information available at the State level. Therefore, while SJA induction and refresher programmes will necessarily involve transmission of information on latest judicial decisions and legislative enactments, NJA programmes will focus on problem solving and the development of law/systems of justice.
G. Model National Judicial Education Curriculum
Over the current academic year, NJA also took a lead towards establishing a set of common minimum standards for judicial education. At a meeting of High Court Justices in Charge of Education at NJA, a Model National Curriculum for Judicial Education was discussed and agreed. The Model Curriculum covers induction and continuing judicial education for all levels of the judiciary and serves as a suggested guideline only.
H. NJA’s “Product Line”
To achieve the above objectives, NJA has a “product line” consisting of six types of programmes as follows:

  NJA Programmes
High Court Justices (1) High Court Justices’ Conferences on Development of Law/Development of Justice Systems;

(2) Orientation Colloquium for Recently Elevated High Court Justices
District Judiciary (1) National Judicial Workshops on Judging/Core Judicial Skills/Judicial Administration

(2) National Judicial Seminars on Substantive Law/Justice
State Judicial Academies (1) Education for Educator Programmes;

(2) Orientation Programme for Newly Selected ADJs as part of their State-Level Induction Programmes
A brief overview of these programmes is provided below.
(1) National/Regional Judicial Workshops for Enhancing Timely Justice (Focus: Judging)
To make a discernible impact on (i) delay and arrears reduction; and (ii) enhancing quality and responsiveness of justice, NJA prepares and delivers three day workshops (national as well as regional) that analyze problems and develop practicable solutions pertaining to DAR and QRJ.

The purpose of these workshops is to bring judges together to discuss challenges facing judicial administration, share best practice and identify practicable solutions/tools/techniques for meeting these challenges within existing constraints, as well as for identifying need for systemic and structural change to strengthen the administration of justice.

The objective is that 2,500 judges in the country participate in these modules per year so that 10,000 judges may be covered over a four-year period (2007-2008 to 2010-2011) with the assistance of SJAs.
Intended benefits/outcomes of the judicial workshops

i) The Judicial Workshops will facilitate the sharing of knowledge and experience/best practice across the country on tackling the priority challenges faced by justice administration.

iii) The Workshops will facilitate analysis of these challenges by judges based on “lateral” inputs from technical and legal experts who may bring new knowledge and perspectives to the problems. This will help the judges in developing/implementing new and appropriate solutions. These new ideas will then be published and disseminated across the country.

iii) The Workshops will raise consciousness/awareness amongst judges about priority problems and send a clear message from the national to the local level about the need, in the national interest, to effectively address priority challenges;

In addition, judicial workshops will also be held on core judicial skills as well as on court management and judicial administration.

iv) Participation in the Workshops will enhance the knowledge and skills of participants and enable them to interact intensively with a national judicial fraternity.

v) Judges will be encouraged to develop individual plans wherever possible to tackle the problems.

A precise short term impact of these programmes may be difficult to monitor. A framework may be developed, however, for measuring the impact of the programme over the medium term in relation to the problems identified in the modules.
(2) National Judicial Seminars on Strengthening the Administration of Justice (Focal area: substantive law)
NJA delivers \advanced seminars on priority areas in the administration of law and justice for some 1000 judges each year.

These specialized programmes will be mainly on topics identified by High Courts through the judicial education needs assessment. Topics proposed for advanced seminars, by cluster, are in the table below.
(3) Programmes for Educating Educators (“Train the Trainer”)
NJA also delivers programmes for educators (“train the trainer” programmes) each year as requested by High Courts. These are delivered to faculty members or resource persons of State Judicial Academies who are expected to deliver the same programme at the State level to multiple audiences.
(4) Orientation Modules for Recently Appointed ADJs
As desired by High Courts, NJA will provide a 5-day orientation for selected newly selected ADJs who are undergoing induction training at the State level. This orientation colloquium will focus on the history and traditions of the Indian judiciary, the main contributions of Indian judiciar6y to the development of jurisprudence, national issues of importance to the administration of justice, judicial ethics and conduct, core judicial skills, delay and arrears reduction and enhancing the quality and responsiveness of justice.
(5) High Court Justices’ Conferences on Development of Law and Development of Justice Systems
NJA organizes Conferences of High Court Justices on key topics to provide Justices the opportunity to discuss how law and justice delivery systems are developing in response to policy challenges facing the nation.
(6) Orientation Colloquia for Recently Elevated High Court Justices
NJA has organized two Colloquia ffor Recently Elevated High Court Justices. These Colloquia provide these justices an opportunity to meet each other across the country and also to interact with some of the most distinguished and senior judges in the country. More such Colloquia will be organized on an as-needed basis.
I. Core Clusters
The subjects covered in judicial education have been organized into ten “core clusters”. Faculty and outside experts (“Visiting Professsors”) are designated for each cluster so that they will provide necessary quality assurance regarding course content and delivery. The ten clusters are:
Cluster I: Judging/Judicial Institutions
Cluster II :Court Process and Dispute Settlement
Cluster III: Public Law (Constitutional Law/Administrative Law/Governance)
Cluster IV: Criminal Law
Cluster V: Civil, Commercial and Economic Law
Cluster VI: Personal Law (Family Law, Gender, Child and the Law)
Cluster VII: Protection of Vulnerable Groups, Individual Rights and of Environment and Natural Resources
Cluster VIII: International Law
Cluster IX: Law, Society and Development
Cluster X: Emerging Areas
J. Skills Data Base
With the approval of the High Courts, NJA is establishing a national skills database of judges that will provide information on the skills and knowledge of judges across the country. The database will be available on NJA’s website only to judges through password protected access. The database will include data obtained through the National Judicial Education Needs Assessment. Such a database will enable more efficient use of judicial education and more effective use of the skills of judges.

NATIONAL SYSTEM OF JUDICIAL EDUCATION 
Pursuant to the various steps summarized above, the National Judicial Education Strategy has resulted in the establishment of a national system of judicial education. It is hoped that this system will be strengthened in the years to come. The national judicial education system includes (i) common aims, objects and methodologies as set out in the National Judicial Education Strategy; (ii) a System for Needs Assessment and Coordinated Calendar Development; (iii) System for Coordination and Cooperation amongst SJAs inter-se and NJA in Curriculum Development, Knowledge generation/knowledge Sharing and Knowledge Management; Sharing of Materials and Resource persons; and Library and Web Resources; (iv) Coordination of Delivery of Judicial Education and Impact/Quality evaluation; (v) Institutional Framework for Coordination Amongst State and National Judicial Academies; and (vi) A Framework for Discussing and Addressing Common Institutional and Financial Issues.

A national system of judicial education should not – and does not – in any way impinge on the autonomy, freedom and flexibility of High Courts and State Judicial Academies in terns of their judicial education programmes. It is only a framework for cooperation, discussion and knowledge sharing so as to maximize effective use of resources and avoid needless duplication.
The Indian Judicial System has the Supreme Court of India at its helm, which at present is located only in the capital city of Delhi, without any benches in any part of the nation, and is presided by the Chief Justice of India.

The Supreme Court of India has many Benches for the litigation, and this apex court is not only the final court of permissible Appeal, but also deals with interstate matters, and matters comprising of more than one state, and the matters between the Union Government and any one or more states, as the matters on its original side. The President of India can always seek consultation and guidance including the opinion of the apex court and its judges. This court also has powers to punish anybody for its own contempt.

The largest bench of the Supreme Court of India is called the Constitution Bench and comprises of 5 or 7 judges, depending on the importance attached of the matters before it, as well as the work load of the court.

The apex court comprises only of various benches comprising of the Divisional benches of 2 and 3 judges, and the Full benches of 3 or 5 judges.

The Appeals to this court are allowed from the High Court, only after the matter is deemed to be important enough on the point of law or on the subject of the constitution of the nation, and is certified as such by the relevant High Court.

In the absence of any certificate from the High Court, a person may, with the leave of the apex court, appeal to this court, by filing a Special Leave Petition before the court.

A person or body may also file a Writ against the violation of Fundamental Rights granted under the Constitution of India, with the permission of the apex court.

Certain writs are allowed to be instituted in the apex court directly, against the orders of the Courts of the Court Martial, and the Central Administrative Tribunals.
 In Delhi, the training programme for judicial officers was at a low key due to want of proper space and infrastructure.  Earlier, newly appointed judicial officers used to sit on the dais along with Senior Judges to observe day-to-day proceedings in the Court.  In 1992, 85 judicial officers joined the Delhi Judicial Service. They were given training for about 9 months, which included institutional training, practical training and field training. However, training was given to these officers in Tis Hazari Courts without any proper infrastructure and other facilities. 

In 2002, a part of Karkardooma Courts was identified and earmarked for Judicial Academy. The Delhi Judicial Academy was inaugurated on 22nd February 2002 by Hon’ble The Chief Justice S.B. Sinha with the objective of imparting training to newly recruited judicial officers as well as for in-service judges. The inaugural function was attended by Hon’ble Judges of High Court of Delhi, District & Sessions Judge, Registrar General, High Court of Delhi, Secretary (LJ &LA), Govt. of NCT, Delhi and Officers from District Judiciary. 

Delhi Judicial Academy owes its existence to the vision and foresight of the then Chief Justice, High Court of Delhi, Hon’ble Mr. Justice S.B. Sinha and the then Judicial Officers Training Programme Committee comprising of Hon’ble Mr. Justice Anil Dev Singh, Hon’ble Mr. Justice Dalveer Bhandari, Hon’ble Mr. Justice V.S. Aggarwal, Hon’ble Mr. Justice A.K. Sikri, Hon’ble Mr. Justice R.C. Chopra and Hon’ble Mr. Justice Sanjay Kishan Kaul.
As per Resolution of Ministry of Law, Justice and Company Affairs (Department of Justice)  the First National Judicial Pay Commission was constituted by the Government of India on  21st March 1996.  It is headed by Justice Jagannatha Shetty, Former Judge, Supreme Court of India. The members of the Commission are Justice P.K. Bahri (Rtd.), Former Judge of the Delhi High Court, and Justice A.B. Murgod (Rtd.), Former Judge of the Karnataka High Court. The Commission submitted its Report regarding Pay Structure of the Judicial Officers of the Subordinate Judiciary of the country during November 1999. Presently, it is examining the grievances of the staff of the Subordinate Judiciary as per the direction of the Supreme Court…

TRANSFER OF PROPERTY ACT,1882

November 20th, 2011 Comments off
TRANSFER OF PROPERTY ACT,1882
CHAPTER I
PRELIMINARY
l. Short title
This Act may be called the Transfer of Property Act, 1882.
Commencement: It shall come into force on the first day of July, 1882.
Extent: It extends in the first instance to the whole of India except the territories which, immediately before the lst November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.
But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned.

And any State Government may from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely,-

Section 54, paragraph 2 and sections 3, 59, 107 and 123.

Notwithstanding anything in the foregoing part of this section, section 54, paragraphs 2 and 3, and sections 59, 107 and 123 shall not extend or be extended to any district or tract of country for the time being excluded from the operation of the Indian Registration Act, 1908 (XVI of 1908), under the power conferred by the first section of that Act or otherwise.

2. Repeal of Acts-Saving of certain enactments, incidents, rights, liabilities, etc.
In the territories to which this Act extends for the time being the enactments specified in the Schedule hereto annexed shall be repealed to the extent therein mentioned. But nothing herein contained shall be deemed to affect-
(a) the provisions of any enactment not hereby expressly repealed;

(b) any terms or incidents of any contract or constitution of property which are consistent with the provisions of this Act, and are allowed by the law for the time being in force;

(c) any right or liability arising out of a legal relation constituted before this Act comes into force, or any relief in respect of any such right or liability; or

(d) save as provided by section 57 and Chapter IV of this Act, any transfer by operation of law or by, or in execution of, a decree or order of a court of competent jurisdiction, and nothing in the second Chapter of this Act shall be deemed to affect any rule of Mohammedan law.

3. Interpretation clause
In this Act, unless there is something repugnant in the subject or context,-
” immovable property” does not include standing timber, growing crops or grass;

“instrument” means a non-testamentary instrument;

“attested”, in relation to an instrument, means and shall be deemed always to have meant attested by two or more witnesses each of whom has seen the executant sign or affix his mark to the instrument, or has seen some other person sign the instrument in the presence and by the direction of the executant, or has received from the executant a personal acknowledgement of his signature or mark, or of the signature of such other person, and each of whom has signed the instrument in the presence of the executant; but it shall not be necessary that more than one of such witnesses shall have been present at the same time, and no particular form of attestation shall be necessary;

“registered” means registered in any part of the territories to which this Act extends under the law for the time being in force regulating the registration of documents;

” attached to the earth” means-

(a) rooted in the earth, as in the case of trees and shrubs;

(b) imbedded in the earth, as in the case of walls or buildings; or

(c) attached to what is so embedded for the permanent beneficial enjoyment of that to which it is attached;

“actionable claim” means a claim to any debt, other than a debt secured by mortgage of immovable property or by hypothecation or pledge of movable property, or to any beneficial interest in movable property not in the possession, either actual or constructive, of the claimant, which the civil courts recognise as affording grounds for relief, whether such debt or beneficial interest be existent, accruing, conditional or contingent;

“a person is said to have notice” of a fact when he actually knows that fact, or when, but for wilful abstention from an enquiry or search which he ought to have made, or gross negligence, he would have known it.

Explanation I: Where any transaction relating to immovable property is required by law to be and has been effected by a registered instrument, any person acquiring such property or any part of, or share or interest in, such property shall be deemed to have notice of such instrument as from the date of registration or, where the property is not all situated in one sub-district, or where the registered instrument has been registered under sub-section (2) of section 30 of the Indian Registration Act, 1908 (16 of 1908), from the earliest date on which any memorandum of such registered instrument has been filed by any Sub-Registrar within whose sub-district any part of the property which is being acquired, or of the property wherein a share or interest is being acquired, is situated:

PROVIDED that-

(1) the instrument has been registered and its registration completed in the manner prescribed by the Indian Registration Act, 1908 (16 of 1908), and the rules made thereunder,

(2) the instrument of memorandum has been duly entered or filed, as the case may be, in books kept under section 51 of that Act, and

(3) the particulars regarding the transaction to which the instrument relates have been correctly entered in the indexes kept under section 55 of that Act.

Explanation II : Any person acquiring any immovable property or any share or interest in any such property shall be deemed to have notice of the title, if any, of any person who is for the time being in actual possession thereof.

Explanation III: A person shall be deemed to have had notice of any fact if his agent acquires notice thereof whilst acting on his behalf in the course of business to which that fact is material:

PROVIDED that, if the agent fraudulently conceals the fact, the principal shall not be charged with notice thereof as against any person who was a party to or otherwise cognizant of the fraud.

4. Enactments relating to contracts to be taken as part of Contract Act and supplemental to the Registration Act
The Chapters and sections of this Act which relate to contracts shall be taken as part of the Indian Contract Act, 1872 (9 of 1872).
1[And section 54, paragraphs 2 and 3, sections 59, 107 and 123 shall be read as supplemental to the Indian Registration Act, 2[1908 (16 of 1908)].]

CHAPTER II

OF TRANSFERS OF PROPERTY BY ACT OF PARTIES


(A) Transfer of property, whether movable or immovable
5. Transfer of property defined
In the following sections “transfer of property” means an act by which a living person conveys property, in present or in future, to one or more other living persons, or to himself and one or more other living persons; and “to transfer property” is to perform such act.
In this section “living person includes a company or association or body of individuals, whether incorporated or not, but nothing herein contained shall affect any law for the time being in force relating to transfer of property to or by companies, associations or bodies of individuals.

6. What may be transferred
Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force.
(a) The chance of an heir-apparent succeeding to an estate, the chance of a relation obtaining a legacy on the death of a kinsman, or any other mere possibility of a like nature, cannot be transferred.

(b) A mere right of re-entry for breach of a condition subsequent cannot be transferred to anyone except the owner of the property affected thereby.

(c) An easement cannot be transferred apart from the dominant heritage.

(d) An interest in property restricted in its enjoyment to the owner personally cannot be transferred by him.

(dd) A right to future maintenance, in whatsoever manner arising, secured or determined, cannot be transferred.

(e) A mere right to sue cannot be transferred.

(f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable.

(g) Stipends allowed to military, naval, air-force and civil pensioners of the government and political pensions cannot be transferred.

(h) No transfer can be made (1) insofar as it is opposed to the nature of the interest affected thereby, or (2) for an unlawful object or consideration within the meaning of section 23 of the Indian Contract Act, 1872 (9 of 1872), or (3) to a person legally disqualified to be transferee.

(i) Nothing in this section shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate, under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee.

7. Persons competent to transfer
Every person competent to contract and entitled to transferable property, or authorised to dispose of transferable property not his own, is competent to transfer such property either wholly or in part, and either absolutely or conditionally, in the circumstances, to the extent and in the manner, allowed and prescribed by any law for the time being in force.
8. Operation of transfer
Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.
Such incidents include, when the property is land, the easements annexed thereto, the rents and profits thereof accruing after the transfer, and all things attached to the earth;

and, where the property is machinery attached to the earth, the movable parts thereof; and, where the property is a house, the easements annexed thereto, the rent thereof accruing after the transfer, and the locks, keys, bars, doors, windows, and all other things provided for permanent use therewith;

and, where the property is a debtor other actionable claim, the securities therefor (except where they are also for other debts or claims not transferred to the transferee), but not arrears of interest accrued before the transfer;

and, where the property is money or other property yielding income, the interest or income thereof accruing after the transfer takes effect.

9. Oral transfer
A transfer of property may be made without writing in every case in which a writing is not expressly required by law.
10. Condition restraining alienation
Where property is transferred subject to a condition or limitation absolutely restraining the transferee or any person claiming under him from parting with or disposing of his interest in the property, the condition or limitation is void, except in the case of a lease where the condition is for the benefit of the lessor or those claiming under him:
PROVIDED that property may be transferred to or for the benefit of a women (not being a Hindu, Muhammadan or Buddhist), so that she shall not have power during her marriage to transfer or charge the same or her beneficial interest therein.

11. Restriction repugnant to interest created
Where, on a transfer of property, an interest therein is created absolutely in favour of any person, but the terms of the transfer direct that such interest shall be applied or enjoyed by him in a particular manner, he shall be entitled to receive and dispose of such interest as if there were no such direction.
Where any such direction has been made in respect of one piece of immovable property for the purpose of securing the beneficial enjoyment of another piece of such property, nothing in this section shall be deemed to affect any right which the transferor may have to enforce such direction or any remedy which he may have in respect of a breach thereof.

12. Condition making interest determinable on insolvency or attempted alienation
Where property is transferred subject to a condition or limitation making any interest therein, reserved or given to or for the benefit of any person, to cease on his becoming insolvent or endeavouring to transfer or dispose of the same, such condition or limitation is void.
Nothing in this section applies to a condition in a lease for the benefit of the lessor or those claiming under him.

13. Transfer for benefit of unborn person
Where, on a transfer of property, an interest therein is created for the benefit of a person not in existence at the date of the transfer, subject to a prior interest created by the same transfer, the interest created for the benefit of such person shall not take effect, unless it extends to the whole of the remaining interest of the transferor in the property.
Illustration

A transfers property of which he is the owner to B in trust for A and his intended wife successively for their lives, and, after the death of the survivor, for the eldest son of the intended marriage for life, and after his death for A’s second son. The interest so created for the benefit of the eldest son does not take effect, because it does not extend to the whole of A’s remaining interest in the property.

14. Rule against perpetuity
No transfer of property can operate to create an interest which is to take effect after the life time of one or more persons living at the date of such transfer, and the minority of some person who shall be in existence at the expiration of that period, and to whom, if he attains full age, the interest created is to belong.
15. Transfer to a class, some of whom come under sections 13 and 14
If, on a transfer of property, an interest therein is created for the benefit of a class of persons with regard to some of whom such interest fails by reason of any of the rules contained in sections 13 and 14, such interest fails in regard to those persons only and not in regard to the whole class.
16. Transfer to take effect on failure of prior interest
Where, by reason of any of the rules contained in sections 13 and 14, an interest created for the benefit of a person or of a class of persons fails in regard to such person or the whole of such class, any interest created in the same transaction and intended to take effect after or upon failure of such prior interest also fails.
17. Direction for accumulation
(1) Where the terms of a transfer of property direct that the income arising from the property shall be accumulated either wholly or in part during a period longer than-
(a) the life of the transferor, or

(b) a period of eighteen years from the date of transfer,

such direction shall, save as hereinafter provided, be void to the extent to which the period during which the accumulation is directed exceeds the longer of the aforesaid periods, and at the end of such last-mentioned period the property and the income thereof shall be disposed of as if the period during which the accumulation has been directed to be made had elapsed.

(2) This section shall not affect any direction for accumulation for the purpose of-

(i) the payment of the debts of the transferor or any other person taking any interest under the transferor; or

(ii) the provision of portions for children or remoter issue of the transferor or of any other person taking any interest under the transfer; or

(iii) the preservation or maintenance of the property transferred,

and such direction may be made accordingly.

18. Transfer in perpetuity for benefit of public
The restrictions in sections 14, 16 and 17 shall not apply in the case of a transfer of property for the benefit of the public in the advancement of religion, knowledge, commerce, health, safety or any other object beneficial to mankind.
19. Vested interest
Where, on a transfer of property, an interest therein is created in favour of a person without specifying the time when it is to take effect, or in terms specifying that it is to take effect forthwith or on the happening of an event which must happen, such interest is vested, unless a contrary intention appears from the terms of the transfer.
A vested interest is not defeated by the death of the transferee before he obtains possession.

Explanation : An intention that an interest shall not be vested is not to be inferred merely from a provision whereby the enjoyment thereof is postponed, or whereby a prior interest in the same property is given or reserved to some other person, or whereby income arising from the property is directed to be accumulated until the time of enjoyment arrives, or from a provision that if a particular event shall happen the interest shall pass to another person.

20. When unborn person acquires vested interest on transfer for his benefit
Where, on a transfer of property, an interest therein is created for the benefit of a person not then living, he acquires upon his birth, unless a contrary intention appears from the terms of the transfer, a vested interest, although he may not be entitled to the enjoyment thereof immediately on his birth.
21. Contingent interest
Where, on a transfer of property, an interest therein is created in favour of a person to take effect only on the happening of a specified uncertain event, or if a specified uncertain event shall not happen, such person thereby acquires a contingent interest in the property. Such interest becomes a vested interest, in the former case, on the happening of the event, in the latter, when the happening of the event becomes impossible.
Exception : Where, under a transfer of property, a person becomes entitled to an interest therein upon attaining a particular age, and the transferor also gives to him absolutely the income to arise from such interest before he reaches that age, or directs the income or so much thereof as may be necessary to be applied for his benefit, such interest is not contingent.

22. Transfer to members of a class who attain a particular age
Where, on a transfer of property, an interest therein is created in favour of such members only of a class as shall attain a particular age, such interest does not vest in any member of the class who has not attained that age.
23. Transfer contingent on happening of specified uncertain event
Where, on a transfer of property, an interest therein is to accrue to a specified person if a specified uncertain event shall happen, and no time is mentioned for the occurrence of that event, the interest fails unless such event happens before, or at the same time as, the intermediate or precedent interest ceases to exist.
24. Transfer to such of certain persons as survive at some period not specified
Where, on a transfer of property, an interest therein is to accrue to such of certain persons as shall be surviving at some period, but the exact period is not specified, the interest shall go to such of them as shall be alive when the intermediate or precedent interest ceases to exist, unless a contrary intention appears from the terms of the transfer.
Illustration

A transfers property to B for life, and after his death to C and D, equally to be divided between them, or to the survivor of them. C dies during the lifetime of B. D survives B. At B’s death the property passes to D.

25. Conditional transfer
An interest created on a transfer of property and dependent upon a condition fails if the fulfilment of the condition is impossible, or is forbidden by law, or is of such a nature that, if permitted, it would defeat the provisions of any law, or is fraudulent, or involves or implies injury to the person or property of another, or the court regards it as immoral or opposed to public policy.
Illustrations

(a) A lets a farm to B on condition that he shall walk a hundred miles in an hour. The lease is void.

(b) A gives Rs. 500 to B on condition that he shall marry A’s daughter C. At the date of the transfer C was dead. The transfer is void.

(c) A transfers Rs. 500 to B on condition that she shall murder C. The transfer is void.

(d) A transfers Rs. 500 to his niece C, if she will desert her husband. The transfer is void.

26. Fulfilment of condition precedent
Where the terms of a transfer of property impose a condition to be fulfilled before a person can take an interest in the property, the condition shall be deemed to have been fulfilled if it has been substantially complied with.
Illustrations

(a) A transfers Rs. 5000 to B on condition that he shall marry with the consent of C, D and E. E dies. B marries with the consent of C and D. B is deemed to have fulfilled the condition.

(b) A transfers Rs. 5000 to B on condition that he shall marry with the consent of C, D and E. B marries without the consent of C, D and E, but obtains their consent after the marriage. B has not fulfilled the condition.

27. Conditional transfer to one person coupled with transfer to another on failure of prior disposition
Where, on a transfer of property, an interest therein is created in favour of one person, and by the same transaction an ulterior disposition of the same interest is made in favour of another, if the prior disposition under the transfer shall fail, the ulterior disposition shall take effect upon the failure of the prior disposition, although the failure may not have occurred in the manner contemplated by the transferor.
But, where the intention of the parties to the transaction is that the ulterior disposition shall take effect only in the event of the prior disposition failing in a particular manner, the ulterior disposition shall not take effect unless the prior disposition fails in that manner.

Illustrations

(a) A transfers Rs. 500 to B on condition that he shall execute a certain lease within three months after A’s death, and, if he should neglect to do so, to C. B dies in A’s life-time. The disposition in favour of C takes effect.

(b) A transfers property to his wife; but, in case she should die in his life-time, transfer to B that which he had transferred to her. A and his wife perish together, under circumstances which make it impossible to prove that she died before him. The disposition in favour of B does not take effect.

28. Ulterior transfer conditional on happening or not happening of specified event
On a transfer of property an interest therein may be created to accrue to any person with the condition superadded that in case a specified uncertain event shall happen such interest shall pass to another person, or that in case a specified uncertain event shall not happen such interest shall pass to another person. In each case the dispositions are subject to the rules contained in sections 10, 12, 21, 22, 23, 24, 25 and 27.
29. Fulfilment of condition subsequent
An ulterior disposition of the kind contemplated by the last preceding section cannot take effect unless the condition is strictly fulfilled.
Illustration

A transfers Rs. 500 to B, to be paid to him on his attaining his majority or marrying, with a proviso that, if B dies as minor or marries without C’s consent, Rs. 500 shall go to D. B marries when only 17 years of age, without C’s consent. The transfer to D takes effect.

30. Prior disposition not affected by invalidity of ulterior disposition
If the ulterior disposition is not valid, the prior disposition is not affected by it.
Illustration

A transfers a farm to B for her life, and, if she does not desert her husband to C. B is entitled to the farm during her life as if no condition had been inserted.

31. Condition that transfer shall cease to have effect in case specified uncertain event happens or does not happen
Subject to the provisions of section 12, on a transfer of property an interest therein may be created with the condition superadded that it shall cease to exist in case a specified uncertain event shall happen, or in case a specified uncertain event shall not happen.
Illustrations

(a) A transfers a farm to B for his life, with a proviso that, in case B cuts down a certain wood, the transfer shall cease to have any effect. B cuts down the wood. He loses his life-interest in the farm.

(b) A transfers a farm to B, provided that, if B shall not go to England within three years after the date of the transfer, his interest in the farm shall cease. B does not go to England within the term prescribed. His interest in the farm ceases.

32. Such condition must not be invalid
In order that a condition that an interest shall cease to exist may be valid, it is necessary that the event to which it relates be one which could legally constitute the condition of the creation of an interest.
33. Transfer conditional on performance of act, no time being specified for performance
Where, on a transfer of property, an interest therein is created subject to a condition that the person taking it shall perform a certain act, but no time is specified for the performance of the act, the condition is broken when he renders impossible, permanently or for an indefinite period, the performance of the act.
34. Transfer conditional on performance of act, time being specified
Where an act is to be performed by a person either as a condition to be fulfilled before an interest created on a transfer of property is enjoyed by him, or as a condition on the non-fulfilment of which the interest is to pass from him to another person, and a time is specified for the performance of the act, if such performance within the specified time is prevented by the fraud of a person who would be directly benefited by non-fulfilment of the condition, such further time shall as against him be allowed for performing the act as shall be requisite to make up for the delay caused by such fraud. But if no time is specified for the performance of the act, then, if its performance is by the fraud of a person interested in the non-fulfilment of the condition rendered impossible or indefinitely postponed, the condition shall as against him be deemed to have been fulfilled.
CHAPTER II

OF TRANSFERS OF PROPERTY BY ACT OF PARTIES

ELECTION

35. Election when necessary
Where a person professes to transfer property which he has no right to transfer, and as part of the same transaction confers any benefit on the owner of the property, such owner must elect either to confirm such transfer or to dissent from it; and in the latter case he shall relinquish the benefit so conferred, and the benefit so relinquished shall revert to the transferor or his representative as if it had not been disposed of, subject nevertheless,
where the transfer is gratuitous, and the transferor has, before the election, died or otherwise become incapable of making a fresh transfer,

and in all cases where the transfer is for consideration,

to the charge of making good to the disappointed transferee the amount or value of the property attempted to be transferred to him.

Illustrations

The farm of Sultanpur is the property of C and worth Rs. 800. A by an instrument of gift professes to transfer it to B, giving by the same instrument Rs. 1,000 to C. C elects to retain the farm. He forfeits the gift of Rs. 1,000. In the same case, A dies before the election. His representative must out of the Rs. 1,000 pay Rs. 800 to B.

The rule in the first paragraph of this section applies whether the transferor does or does not believe that which he professes to transfer to be his own.

A person taking no benefit directly under a transaction, but deriving a benefit under it indirectly, need not elect.

A person who in his own capacity takes a benefit under the transaction may in another dissent therefrom.

Exception to the last preceding four rules : Where a particular benefit is expressed to be conferred on the owner of the property which the transferor professes to transfer, and such benefit is expressed to be in lieu of that property, if such owner claims the property, he must relinquish the particular benefit, but he is not bound to relinquish any other benefit conferred upon him by the same transaction.

Acceptance of the benefit by the person on whom it is conferred constitutes an election by him to confirm the transfer, if he is aware of his duty to elect and of those circumstances which would influence the judgement of a reasonable man in making an election, or if he waives enquiry into the circumstances.

Such knowledge or waiver shall, in the absence of evidence to the contrary, be presumed, if the person on whom the benefit has been conferred has enjoyed it for two years without doing any act to express dissent.

Such knowledge or waiver may be inferred from any act of his which renders it impossible to place the persons interested in the property professed to be transferred in the same condition as if such act had not been done.

Illustration

A transfers to B an estate to which C is entitled, and as part of the same transaction gives C a coal-mine. C takes possession of the mine and exhausts it. He has thereby confirmed the transfer of the estate to B.

If he does not within one year after the date of the transfer signify to the transferor or his representatives his intention to confirm or to dissent from the transfer, the transferor or his representative may, upon the expiration of that period, require him to make his election; and, if he does not comply with such requisition within a reasonable time after he has received it, he shall be deemed to have elected to confirm the transfer.

In case of disability, the election shall be postponed until the disability ceases, or until the election is made by some competent authority.

APPORTIONMENT

36. Apportionment of periodical payments on determination of interest of person entitled
In the absence of a contract or local usage to the contrary, all rents, annuities, pensions, dividends and other periodical payments in the nature of income shall, upon the transfer of the interest of the person entitled to receive such payments, be deemed, as between the transferor and the transferee, to accrue due from day to day, and to be apportionable accordingly, but to be payable on the days appointed for the payment thereof.
37. Apportionment of benefit of obligation on severance
When, in consequence of a transfer, property is divided and held in several shares, and thereupon the benefit of any obligation relating to the property as a whole passes from one to several owners of the property, the corresponding duty shall, in the absence of a contract, to the contrary amongst the owners, be performed in favour of each of such owners in proportion to the value of his share in the property, provided that the duty can be severed and that the severance does not substantially increase the burden of the obligation; but if the duty cannot be severed, or if the severance would substantially increase the burden of the obligation the duty shall be performed for the benefit of such one of the several owners as they shall jointly designate for that purpose:
PROVIDED that no person on whom the burden of the obligation lies shall be answerable for failure to discharge it in the manner provided by this section, unless and until he has had reasonable notice of the severance.

Nothing in this section applies to leases for agricultural purposes unless and until the State Government by notification in the Official Gazette so directs.

Illustrations

(a) A sells to B, C and D a house situated in a village and leased to E at an annual rent of Rs. 30 and delivery of one fat sheep, B having provided half the purchase-money and C and D one quarter each. E, having notice of this, must pay Rs. 15 to B, Rs. 7.50 to C, and Rs. 7.50 to D and must deliver the sheep according to the joint direction of B, C and D.

(b) In the same case, each house in the village being bound to provide ten days’ labour each year on a dyke to prevent inundation. E had agreed as a term of his lease to perform this work for A, B, C and D severally require E to perform the ten days’ work due on account of the house of each. E is not bound to do more than ten days’ work in all, according to such directions as B, C and D may join in giving.

(B) Transfer of immovable property

38. Transfer by person authorised only under certain circumstances to transfer
Where any person, authorised only under circumstances in their nature variable to dispose of immovable property, transfers such property for consideration, alleging the existence of such circumstances, they shall, as between the transferee on the one part and the transferor and other persons (if any) affected by the transfer on the other part, be deemed to have existed, if the transferee, after using reasonable care to ascertain the existence of such circumstances, has acted in good faith.
Illustration

A, a Hindu widow, whose husband has left collateral heirs, alleging that the property held by her as such is insufficient for her maintenance, agrees, for purposes neither religious nor charitable to sell a field, part of such property, to B. B satisfies himself by reasonable enquiry that the income of the property is insufficient for A’s maintenance, and that the sale of the field is necessary, and acting in good faith, buys the field from A. As between B on the one part and A and the collateral heirs on the other part, a necessity for the sale shall be deemed to have existed.

39. Transfer where third person is entitled to maintenance
Where a third person has a right to receive maintenance, or a provision for advancement or marriage, from the profits of immovable property, and such property is transferred, the right may be enforced against the transferee, if he has notice thereof or if the transfer is gratuitous; but not against a transferee for consideration and without notice of the right, nor against such property in his hands.
40. Burden of obligation imposing restriction on use of land
Where, for the more beneficial enjoyment of his own immovable property, a third person has, independently of any interest in the immovable property of another or of any easement thereon, a right to restrain the enjoyment in a particular manner of the latter property, or
Or of obligation annexed to ownership but not amounting to interest or easement : Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon,

such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.

Illustration

A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A.

41. Transfer by ostensible owner
Where, with the consent, express or implied, of the persons interested in immovable property, a person is the ostensible owner of such property and transfers the same for consideration, the transfer shall not be voidable on the ground that the transferor was not authorised to make it:
PROVIDED that the transferee, after taking reasonable care to ascertain that the transferor had power to make the transfer, has acted in good faith.

42. Transfer by person having authority to revoke former transfer
Where a person transfers any immovable property, reserving power to revoke the transfer, and subsequently transfers the property for consideration to another transferee, such transfer operates in favour of such transferee (subject to any condition attached to the exercise of the power) as a revocation of the former transfer to the extent of the power.
Illustration

A lets a house to B, and reserves power to revoke the lease if, in the opinion of a specified surveyor, B should make a use of it detrimental to its value. Afterwards A, thinking that such a use has been made, lets the house to C. This operates as a revocation of B’s lease subject to the opinion of the surveyor as to B’s use of the house having been detrimental to its value.

43. Transfer by unauthorised person who subsequently acquires interest in property transferred
Where a person fraudulently or erroneously represents that he is authorised to transfer certain immovable property and professes to transfer such property for consideration, such transfer shall, at the option of the transferee, operate on any interest which the transferor may acquire in such property at any time during which the contract of transfer subsists.
Nothing in this section shall impair the right of transferees in good faith for consideration without notice of the existence of the said option.

Illustration

A, a Hindu who has separated from his father B, sells to C three fields, X, Y and Z, representing that A is authorised to transfer the same. Of these fields Z does not belong to A, it having been retained by B on the partition; but on B’s dying A as heir obtains Z. C, not having rescinded the contract of sale, may require A to deliver Z to him.

44. Transfer by one co-owner
Where one of two or more co-owners of immovable property legally competent in that behalf transfers his share of such property or any interest therein, the transferee acquires, as to such share or interest, and so far as is necessary to give, effect to the transfer, the transferor’s right to joint possession or other common or part enjoyment of the property, and to enforce a partition of the same’ but subject to the conditions and liabilities affecting at the date of the transfer, the share or interest so transferred.
Where the transferee of a share of a dwelling-house belonging to an undivided family is not a member of the family, nothing in this section shall be deemed to entitle him to joint possession or other common or part enjoyment of the house.

45. Joint transfer for consideration
Where immovable property is transferred for consideration to two or more persons and such consideration is paid out of a fund belonging to them in common, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property identical, as nearly as may be, with the interests to which they were respectively entitled in the fund; and, where such consideration is paid out of separate funds belonging to them respectively, they are, in the absence of a contract to the contrary, respectively entitled to interests in such property in proportion to the shares of the consideration which they respectively advanced.
In the absence of evidence as to the interests in the fund to which they were respectively entitled, or as to the shares which they respectively advanced, such persons shall be presumed to be equally interested in the property.

46. Transfer for consideration by persons having distinct interests
Where immovable property is transferred for consideration by persons having distinct interests therein, the transferors are, in the absence of a contract to the contrary, entitled to share in the consideration equally, where their interests in the property were of equal value, and, where such interests were of unequal value, proportionately to the value of their respective interests.
Illustrations

(a) A, owning a moiety, and B and C, each a quarter share, of mauza Sultanpur, exchange an eighth share of that mauza for a quarter share of mauza Lalpura. There being no agreement to the contrary, A is entitled to an eighth share in Lalpura, and B and C each to a sixteenth share in the mauza.

(b) A, being entitled to a life-interest in mauza Atrali and B and C to the reversion, sell the mauza for Rs. 1,000. A’s life-interest is ascertained to be worth Rs. 600, the reversion Rs. 400. A is entitled to receive Rs. 600 out of the purchase-money, B and C to receive Rs. 400.

47. Transfer by co-owners of share in common property
Where several co-owners of immovable property transfer a share therein without specifying that the transfer is to take effect on any particular share or shares of the transferors, the transfer, as among such transferors, takes effect on such shares equally where the shares were equal, and, where they were unequal, proportionately to the extent of such shares.
Illustration

A, the owner of an eight-anna share, and B and C, each the owner of a four-anna share, in mauza Sultanpur, transfer a two-anna share in the mauza to D, without specifying from which of their several shares the transfer is made. To give effect to the transfer one-anna share is taken from the share of A, and half-an-anna share from each of the shares of B and C.

48. Priority of rights created by transfer
Where a person purports to create by transfer at different times rights in or over the same immovable property, and such rights cannot all exist or be exercised to their full extent together, each later created right shall, in the absence of a special contract or reservation binding the earlier transferees, be subject to the rights previously created.
49. Transferee’s right under policy
Where immovable property is transferred for consideration, and such property or any part thereof is at the date of the transfer insured against loss or damage by fire, the transferee, in case of such loss or damage, may, in the absence of a contract to the contrary, require any money which the transferor actually receives under the policy, or so much thereof as may be necessary, to be applied in reinstating the property.
50. Rent bona fide paid to holder under defective title
No person shall be chargeable with any rents or profits of any immovable property, which he has in good faith paid or delivered to any person of whom he in good faith held such property, notwithstanding it may afterwards appear that the person to whom such payment or delivery was made had no right to receive such rents or profits.
Illustration

A lets a field to B at a rent of Rs. 50, and then transfers the field to C. B, having no notice of the transfer, in good faith pays the rent to A. B is not chargeable with the rent so paid.

51. Improvements made by bona fide holders under defective titles
When the transferee of immovable property makes any improvement on the property, believing in good faith that he is absolutely entitled thereto, and he is subsequently evicted therefrom by any person having a better title, the transferee has a right to require the person causing the eviction either to have the value of the improvement estimated and paid or secured to the transferee, or to sell interest in the property to the transferee at the then market value thereof, irrespective of the value of such improvement.
The amount to be paid or secured in respect of such improvement shall be the estimated value thereof at the time of the eviction.

When, under the circumstances aforesaid, the transferee has planted or sown on the property crops which are growing when he is evicted therefrom, he is entitled to such crops and to free ingress and egress to gather and carry them.

52. Transfer of property pending suit relating thereto
During the pendency in any court having authority 3[4[within the limits of India excluding the State of Jammu and Kashmir] Government or established beyond such limits] by the Central Government of any suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the court and on such terms as it may impose.
Explanation : For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.

53. Fraudulent transfer
(1) Every transfer of immovable property made with intent to defeat or delay the creditors of the transferor shall be voidable at the option of any creditor so defeated or delayed.
Nothing in this sub-section shall impair the rights of a transferee in good faith and for consideration.

Nothing in this sub-section shall affect any law for the time being in force relating to insolvency.

A suit instituted by a creditor (which term includes a decree-holder whether he has or has not applied for execution of his decree) to avoid a transfer on the ground that it has been made with intent to defeat or delay the creditors of the transferor shall be instituted on behalf of, or for the benefit of, all the creditors.

(2) Every transfer of immovable property made without consideration with intent to defraud a subsequent transferee shall be voidable at the option of such transferee.

For the purposes of this sub-section, no transfer made without consideration shall be deemed to have been made with intent to defraud by reason only that a subsequent transfer for consideration was made.

53A. Part performance
Where any person contracts to transfer for consideration any immovable property by writing signed by him or on his behalf from which the terms necessary to constitute the transfer can be ascertained with reasonable certainty,
and the transferee has, in part performance of the contract, taken possession of the property or any part thereof, or the transferee, being already in possession, continues in possession in part performance of the contract and has done some act in furtherance of the contract,

and the transferee has performed or is willing to perform his part of the contract,

then, notwithstanding that the contract, though required to be registered, has not been registered, or, where there is an instrument of transfer, that the transfer has not been completed in the manner prescribed therefor by the law for the time being in force, the transferor or any person claiming under him shall be debarred from enforcing against the transferee and persons claiming under him any right in respect of the property of which the transferee has taken or continued in possession, other than a right expressly provided by the terms of the contract:

PROVIDED that nothing in this section shall affect the rights of a transferee for consideration who has no notice of the contract or of the part performance thereof.

CHAPTER III

OF SALES OF IMMOVABLE PROPERTY


54. “Sale” defined
“Sale” is a transfer of ownership in exchange for a price paid or promised or part-paid and part-promised.
Sale how made: Such transfer, in the case of tangible immovable property of the value of one hundred rupees and upwards, or in the case of a reversion or other intangible thing, can be made only by a registered instrument.

In the case of tangible immovable property of a value less than one hundred rupees, such transfer may be made either by a registered instrument or by delivery of the property.

Delivery of tangible immovable property takes place when the seller places the buyer, or such person as he directs, in possession of the property.

Contract for sale: A contract for the sale of immovable property is a contract that a sale of such property shall take place on terms settled between the parties.

It does not, of itself, create any interest in or charge on such property.

55. Rights and liabilities of buyer and seller
In the absence of a contract to the contrary, the buyer and the seller of immovable property respectively are subject to the liabilities, and have the rights, mentioned in the rules next following or such of them as are applicable to the property sold:
(1) The seller is bound-

(a) to disclose to the buyer any material defect in the property or in the seller’s title thereto of which the seller is, and the buyer is not, aware, and which the buyer could not with ordinary care discover;

(b) to produce to the buyer on his request for examination all documents of title relating to the property which are in the seller’s possession or power;

(c) to answer to the best of his information all relevant questions put to him by the buyer in respect to the property or the title thereto;

(d) on payment or tender of the amount due in respect of the price, to execute a proper conveyance of the property when the buyer tenders it to him for execution at a proper time and place;

(e) between the date of the contract of sale and the delivery of the property, to take as much care of the property and all documents of title relating thereto which are in his possession as an owner of ordinary prudence would take of such property and documents;

(f) to give, on being so required, the buyer, or such person as he directs, such possession of the property as its nature admits;

(g) to pay all public charges and rent accrued due in respect of the property up to the date of the sale, the interest on all encumbrances on such property due on such date, and, except where the property is sold subject to encumbrances, to discharge all encumbrances on the property then existing.

(2) The seller shall be deemed to contract with the buyer that the interest which the seller professes to transfer to the buyer subsists and that he has power to transfer the same:

PROVIDED that, where the sale is made by a person in a fiduciary character, he shall be deemed to contract with the buyer that the seller has done no act whereby the property is encumbered or whereby he is hindered from transferring it.

The benefit of the contract mentioned in this rule shall be annexed to, and shall go with, the interest of the transferee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(3) Where the whole of the purchase-money has been paid to the seller, he is also bound to deliver to the buyer all documents of title relating to the property which are in the seller’s possession or power:

PROVIDED that,

(a) where the seller retains any part of the property comprised in such documents, he is entitled to retain them all, and,

(b) where the whole of such property is sold to different buyers, the buyers of the lot of greatest value is entitled to such documents.

But in case (a) the seller, and in case (b) the buyer, of the lot of greatest value, is bound, upon every reasonable request by the buyer, or by any of the other buyers, as the case may be, and at the cost of the person making the request, to produce the said documents and furnish such true copies thereof or extracts therefrom as he may require; and in the meantime, the seller, or the buyer of the lot of greatest value, as the case may be, shall keep the said documents safe, uncancelled and undefaced, unless prevented from so doing by fire or other inevitable accident.

(4) The seller is entitled-

(a) to the rents and profits of the property till the ownership thereof passes to the buyer;

(b) where the ownership of the property has passed to the buyer before payment of the whole of the purchase-money, to a charge upon the property in the hands of the buyer, any transferee without consideration or any transferee with notice of the non-payment, for the amount of the purchase-money, or any part thereof remaining unpaid, and for interest on such amount or part from the date on which possession has been delivered.

(5) The buyer is bound-

(a) to disclose to the seller any fact as to the nature or extent of the seller’s interest in the property of which the buyer is aware, but of which he has reason to believe that the seller is not aware, and which materially increases the value of such interest;

(b) to pay or tender, at the time and place of completing the sale, the purchase-money to the seller or such person as he directs:

PROVIDED that, where the property is sold free from encumbrances, the buyer may retain out of the purchase-money the amount of any encumbrances on the property existing at the date of the sale, and shall pay the amount so retained to the persons entitled thereto;

(c) where the ownership of the property has passed to the buyer, to bear any loss arising from the destruction, injury or decrease in value of the property not caused by the seller;

(d) where the ownership of the property has passed to the buyer, as between himself and the seller, to pay all public charges and rent which may become payable in respect of the property, the principal moneys due on any encumbrances subject to which the property is sold, and the interest thereon afterwards accruing due.

(6) The buyer is entitled-

(a) where the ownership of the property has passed to him, to the benefit of any improvement in, or increase in value of, the property, and to the rents and profits thereof;

(b) unless he has improperly declined to accept delivery of the property, to a charge on the property, as against the seller and all persons claiming under him, to the extent of the seller’s interest in the property, for the amount of any purchase-money properly paid by the buyer in anticipation of the delivery and for interest on such amount; and, when he properly declines to accept the delivery, also for the earnest (if any) and for the costs (if any) awarded to him of a suit to compel specific performance of the contract or to obtain a decree for its rescission.

An omission to make such disclosures as are mentioned in this section, paragraph (1), clause (a) and paragraph (5), clause (a), is fraudulent.

56. Marshalling by subsequent purchaser
If the owner of two or more properties mortgages them to one person and then sells one or more of the properties to another person, the buyer is, in the absence of a contract to the contrary, entitled to have the mortgage-debt satisfied out of the property or properties not sold to him, so far as the same will extend, but not so as to prejudice the rights of the mortgagee or persons claiming under him or of any other person who has for consideration acquired an interest in any of the properties.
DISCHARGE OF ENCUMBRANCES ON SALE

57. Provision by court for encumbrances and sale freed therefrom
(a) Where immovable property subject to any encumbrances, whether immediately payable or not, is sold by the court or in execution of a decree, or out of court, the court may, if it thinks fit, on the application of any party to the sale, direct or allow payment into court,-
(1) in case of an annual or monthly sum charged on the property, or of a capital sum charged on a determinable interest in the property-of such amount as, when invested in securities of the Central Government, the court considers will be sufficient, by means of the interest thereof, to keep down or otherwise provide for that charge, and

(2) in any other case of a capital sum charged on the property- of the amount sufficient to meet the encumbrance and any interest due thereon.

But in either case there shall also be paid into court such additional amount as the court considers will be sufficient to meet the contingency of further costs, expenses and interest, and any other contingency, except depreciation of investment not exceeding one-tenth part of the original amount to be paid in, unless the court for special reasons (which it shall record) thinks fit to require a large additional amount.

(b) Thereupon the court may, if it thinks fit, and after notice to the encumbrances, unless the court, for reasons to be recorded in writing thinks fit to dispense with such notice, declare the property to be freed from the encumbrance, and make any order for conveyance, or vesting order, proper for giving effect to the sale, and give directions for the retention and investment of the money in court.

(c) After notice served on the persons interested in or entitled to the money or fund in court, the court may direct payment or transfer thereof to the persons entitled to receive or give a discharge for the same, and generally may give directions respecting the application or distribution of the capital or income thereof.

(d) An appeal shall lie from any declaration, order or direction under this section as if the same were a decree.

(e) In this section “court” means (1) a High Court in the exercise of its ordinary or extraordinary original civil jurisdiction, (2) the court of a District Judge within the local limits of whose jurisdiction the property or any part thereof is situate, (3) any other court which the State Government may, from time to time, by notification in the Official Gazette, declare to be competent to exercise the jurisdiction conferred by this section.

CHAPTER IV

OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES

58. “Mortgage”, “mortgagor”, “mortgagee”, “mortgage-money” and “mortgaged” defined.
(a) A mortgage is the transfer of an interest in specific immoveable property for the purpose of securing the payment of money advanced or to be advanced by way of loan, an existing or future debt, or the performance of an engagement which may give rise to a pecuniary liability.
The transferor is called a mortgagor, the transferee a mortgagee; the principal money and interest of which payment is secured for the time being are called the mortgage-money, and the instrument (if any) by which the transfer is effected is called a mortgage-deed.

(b) Simple mortgage-Where, without delivering possession of the mortgaged property, the mortgagor binds himself personally to pay the mortgage-money, and agrees, expressly or impliedly, that, in the event of his failing to pay according to his contract, the mortgagee shall have a right to cause the mortgaged property to be sold and the proceeds of sale to be applied, so far as may be necessary, in payment of the mortgage-money, the transaction is called a simple mortgage and the mortgagee a simple mortgagee.

(c) Mortgage by conditional sale-Where, the mortgagor ostensibly sells the mortgaged property-

on condition that on default of payment of the mortgage-money on a certain date the sale shall become absolute, or

on condition that on such payment being made the sale shall become void, or

on condition that on such payment being made the buyer shall transfer the property to the seller,

the transaction is called a mortgage by conditional sale and the mortgagee a mortgagee by conditional sale:

PROVIDED that no such transaction shall be deemed to be a mortgage, unless the condition is embodied in the document which effects or purports to effect the sale.

(d) Usufructuary mortgage-Where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits and to appropriate the same in lieu of interest or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called a usufructuary mortgage and the mortgagee a usufructuary mortgagee.

(e) English mortgage-Where the mortgagor binds himself to repay the mortgage-money on a certain date, and transfers the mortgaged property absolutely to the mortgagee, but subject to a proviso that he will re-transfer it to the mortgagor upon payment of the mortgage-money as agreed, the transaction is called an English mortgage.

(f) Mortgage by deposit of title-deeds-Where a person in any of the following towns, namely, the towns of Calcutta, Madras, and Bombay, and in any other town which the State Government concerned may, by notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent documents of title to immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title-deeds.

(g) Anomalous mortgage-A mortgage which is not a simple mortgage, a mortgage by conditional sale, a usufructuary mortgage, an English mortgage or a mortgage by deposit of title-deeds within the meaning of this section is called an anomalous mortgage.

59. Mortgage when to be by assurance
Where the principal money secured is one hundred rupees or upwards, a mortgage other than a mortgage by deposit of title deeds can be effected only by a registered instrument signed by the mortgagor and attested by at least two witnesses.
Where the principal money secured is less than one hundred rupees, a mortgage may be effected either by a registered instrument signed and attested as aforesaid or (except in the case of a simple mortgage) by delivery of the property.

59A. References to mortgagors and mortgagees to include persons deriving title from them
Unless otherwise expressly provided, references in this Chapter to mortgagors and mortgagees shall be deemed to include references to persons deriving title from them respectively.
RIGHTS AND LIABILITIES OF MORTGAGOR

60. Right of mortgagor to redeem
At any time after the principal money has become due, the mortgagor has a right, on payment or tender, at a proper time and place, of the mortgage-money, to require the mortgagee (a) to deliver to the mortgagor the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee, (b) where the mortgagee is in possession of the mortgaged property, to deliver possession thereof to the mortgagor, and (c) at the cost of the mortgagor either to re-transfer the mortgaged property to him or to such third person as he may direct, or to execute and (where the mortgage has been effected by a registered instrument) to have registered an acknowledgement in writing that any right in derogation of his interest transferred to the mortgagee has been extinguished:
PROVIDED that the right conferred by this section has not been extinguished by the act of the parties or by decree of a court.

The right conferred by this section is called a right to redeem and a suit to enforce it is called a suit for redemption.

Nothing in this section shall be deemed to render invalid any provision to the effect that, if the time fixed for payment of the principal money has been allowed to pass or no such time has been fixed, the mortgagee shall be entitled to reasonable notice before payment or tender of such money.

Redemption of portion of mortgaged property-Nothing in this section shall entitle a person interested in a share only of the mortgaged property to redeem his own share only, on payment of a proportionate part of the amount remaining due on the mortgage, except only where a mortgagee, or, if there are more mortgagees than one, all such mortgagees, has or have acquired, in whole or in part, the share of a mortgagor.

60A. Obligation to transfer to third party instead of re-transference to mortgagor
(1) Where a mortgagor is entitled to redemption, then, on the fulfilment of any conditions of the fulfilment of which he would be entitled to require a retransfer, he may require the mortgagee, instead of re-transferring the property, to assign the mortgage debt and transfer the mortgaged property to such third person as the mortgagor may direct; and the mortgagee shall be bound to assign and transfer accordingly.
(2) The rights conferred by this section belong to and may be enforced by the mortgagor or by any encumbrancer notwithstanding an intermediate encumbrance; but the requisition of any encumbrance shall prevail over a requisition of the mortgagor and, as between encumbrancers, the requisition of a prior encumbrancer shall prevail over that of a subsequent encumbrancer.

(3) The provisions of this section do not apply in the case of a mortgagee who is or has been in possession.

60B. Right to inspection and production of documents
A mortgagor, as long as his right of redemption subsists, shall be entitled at all reasonable times, at his request and at his own cost, and on payment of the mortgagee’s cost and expenses in this behalf, to inspect and make copies or abstracts of, or extracts from, documents of title relating to the mortgaged property which are in the custody or power of the mortgagee.
61. Right to redeem separately or simultaneously
A mortgagor who has executed two or more mortgages in favour of the same mortgagee shall, in the absence of a contract to the contrary, when the principal money of any two or more of the mortgages has become due, be entitled to redeem any one such mortgage separately, or any two or more of such mortgages together.
62. Right of usufructuary mortgagor to recover possession
In the case of a usufructuary mortgage, the mortgagor has a right to recover possession of the property together with the mortgage-deed and all documents relating to the mortgaged property which are in the possession or power of the mortgagee,-
(a) where the mortgagee is authorised to pay himself the mortgage-money from the rents and profits of the property,-when such money is paid;

(b) where the mortgagee is authorised to pay himself from such rents and profits or any part thereof a part only of the mortgage-money,-when the term (if any) prescribed for the payment of the mortgage-money has expired and the mortgagor pays or tenders to the mortgagee the mortgage-money or the balance thereof or deposits it in court hereinafter provided.

63. Accession to mortgaged property
Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, received any accession, the mortgagor, upon redemption shall, in the absence of a contract to the contrary, be entitled as against the mortgagee to such accession.
Accession acquired in virtue of transferred ownership- Where such accession has been acquired at the expense of the mortgagee, and is capable of separate possession or enjoyment without detriment to the principal property, the mortgagor desiring to take the accession must pay to the mortgagee the expense of acquiring it. If such separate possession or enjoyment is not possible, the accession must be delivered with the property; the mortgagor being liable, in the case of an acquisition necessary to preserve the property from destruction, forfeiture or sale, or made with his assent, to pay the proper cost thereof, as an addition to the principal money, with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum.

In the case last mentioned the profits, if any, arising from the accession shall be credited to the mortgagor.

Where the mortgage is usufructuary and the accession has been acquired at the expense of the mortgagee, the profits, if any, arising from the accession shall, in the absence of a contract to the contrary, be set off against interest, if any, payable on the money so expended.

63A. Improvements to mortgaged property
(1) Where mortgaged property in possession of the mortgagee has, during the continuance of the mortgage, been improved, the mortgagor, upon redemption, shall, in the absence of a contract to the contrary, be entitled to the improvement; and the mortgagor shall not, save only in cases provided for in sub-section (2), be liable to pay the cost thereof.
(2) Where any such improvement was effected at the cost of the mortgagee and was necessary to preserve the property from destruction or deterioration or was necessary to prevent the security from becoming insufficient, or was made in compliance with the lawful order of any public servant or public authority, the mortgagor shall, in the absence of a contract to the contrary, be liable to pay the proper cost thereof as an addition to the principal money with interest at the same rate as is payable on the principal, or, where no such rate is fixed, at the rate of nine per cent per annum, and the profits, if any, accruing by reason of the improvement shall be credited to the mortgagor.

64. Renewal of mortgaged lease
Where mortgaged property is a lease, and the mortgagee obtains a renewal of the lease, the mortgagor, upon redemption, shall, in the absence of a contract by him to the contrary, have the benefit of the new lease.
65. Implied contracts by mortgagor
In the absence of a contract to the contrary, the mortgagor shall be deemed to contract with the mortgagee,-
(a) that the interest which the mortgagor professes to transfer to the mortgagee subsists, and that the mortgagor has power to transfer the same;

(b) that the mortgagor will defend, or, if the mortgagee be in possession of the mortgaged property, enable him to defend, the mortgagor’s title. thereto;

(c) that the mortgagor will, so long as the mortgagee is not in possession of the mortgaged property, pay all public charges accruing due in respect of the property;

(d) and, where the mortgaged property is a lease, that the rent payable under the lease, the conditions contained therein, and the contracts binding on the lessee have been paid, performed and observed down to the commencement of the mortgage; and that the mortgagor will, so long as the security exists and the mortgagee is not in possession of the mortgaged property, pay the rent reserved by the lease, or, if the lease be renewed, the renewed lease, perform the conditions contained therein and observe the contracts binding on the lessee, and indemnify the mortgagee against all the claims sustained by reason of the non-payment of the said rent or the non-performance or non-observance of the said conditions and contracts;

(e) and, where the mortgage is a second or subsequent encumbrance on the property, that the mortgagor will pay the interest from time to time accruing due on such prior encumbrance as and when it becomes due, and will at the proper time discharge the principal money due on such prior encumbrance.

The benefit of the contracts mentioned in this section shall be annexed to and shall go with the interest of the mortgagee as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

65A. Mortgagor’s power to lease
(1) Subject to the provisions of sub-section (2), a mortgagor, while lawfully in possession of the mortgaged property, shall have power to make leases thereof which shall be binding on the mortgagee.
(2) (a) Every such lease shall be such as would be made in the ordinary course of management of the property concerned, and in accordance with any local law, custom or usage.

(b) Every such lease shall reserve the best rent that can reasonably be obtained, and no premium shall be paid or promised and no rent shall be payable in advance.

(c) No such lease shall contain a covenant for renewal.

(d) Every such lease shall take effect from a date not later than six months from the date on which it is made.

(e) In the case of a lease of buildings, whether leased with or without the land on which they stand, the duration of the lease shall in no case exceed three years, and the lease shall contain a covenant for payment of the rent and a condition of re-entry on the rent not being paid with a time therein specified.

(3) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-section (2) may be varied or extended by the mortgage-deed and, as so varied and extended, shall, as far as may be, operate in like manner and with all like incidents, effects and consequences, as if such variations or extensions were contained in that sub-section.

66. Waste by mortgagor in possession
A mortgagor in possession of the mortgaged property is not liable to the mortgagee for allowing the property to deteriorate; but he must not commit any act which is destructive or permanently injurious thereto, if the security is insufficient or will be rendered insufficient by such act.
Explanation: A security is insufficient within the meaning of this section unless the value of the mortgaged property exceeds by one-third, or, if consisting of buildings, exceeds by one-half, the amount for the time being due on the mortgage.

RIGHTS AND LIABILITIES OF MORTGAGEE

67. Right to foreclosure or sale
In the absence of a contract to the contrary, the mortgagee has, at any time after the mortgage- money has become due to him, and before a decree has been made for the redemption of the mortgaged property, or the mortgage-money has been paid or deposited as hereinafter provided, a right to obtain from the court a decree that the mortgagor shall be absolutely debarred of his right to redeem the property, or a decree that the property be sold.
A suit to obtain a decree that a mortgagor shall be absolutely debarred of his right to redeem the mortgaged property is called a suit for foreclosure.

Nothing in this section shall be deemed-

(a) to authorise any mortgagee other than a mortgagee by conditional sale or a mortgagee under an anomalous mortgage by the terms of which he is entitled to foreclose, to institute a suit for foreclosure, or a usufructuary mortgagee as such or a mortgagee by conditional sale as such to institute a suit for sale; or

(b) to authorise a mortgagor who holds the mortgagee’s rights as his trustee or legal representative, and who may sue for a sale of the property, to institute a suit for foreclosure; or

(c) to authorise the mortgagee of a railway, canal, or other work in the maintenance of which the public are interested, to institute a suit for foreclosure or sale; or

(d) to authorise a person interested in part only of the mortgage-money to institute a suit relating only to a corresponding part of the mortgaged property, unless the mortgagees have, with the consent of the mortgagor, severed their interests under the mortgage.

67A. Mortgagee when bound to bring one suit on several mortgages
A mortgagee who holds two or more mortgages executed by the same mortgagor in respect of each of which he has a right to obtain the same kind of decree under section 67, and who sues to obtain such decree on any one of the mortgages, shall, in the absence of a contract to the contrary, be bound to sue on all the mortgages in respect of which the mortgage-money has become due.
CHAPTER IV

OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES
68. Right to sue for mortgage-money
(1) The mortgagee has a right to sue for the mortgage-money in the following cases and no others, namely,-
(a) where the mortgagor binds himself to repay the same;

(b) where, by any cause other than the wrongful act or default of the mortgagor or mortgagee, the mortgaged property is wholly or partially destroyed or the security is rendered insufficient within the meaning of section 66, and the mortgagee has given the mortgagor a reasonable opportunity of providing further security enough to render the whole security sufficient, and the mortgagor has failed to do so;

(c) where the mortgagee is deprived of the whole or part of his security by or in consequence of the wrongful act or default of the mortgagor;

(d) where, the mortgagee being entitled to possession of the mortgaged property, the mortgagor fails to deliver the same to him, or to secure the possession thereof to him without disturbance by the mortgagor or any person claiming under a title superior to that of the mortgagor:

PROVIDED that, in the case referred to in clause (a), a transferee from the mortgagor or from his legal representative shall not be liable to be sued for the mortgage-money.

(2) Where a suit is brought under clause (a) or clause (b) of sub-section (1), the court may, at its discretion, stay the suit and all proceedings therein, notwithstanding any contract to the contrary, until the mortgagee has exhausted all his available remedies against the mortgaged property or what remains of it, unless the mortgagee abandons his security and, if necessary, re-transfers the mortgaged property.

69. Power of sale when valid
(1) 5[***] A mortgagee, or any person acting on his behalf, shall, subject to the provisions of this section have power to sell or concur in selling the mortgaged property or any part thereof, in default of payment of the mortgage-money, without the intervention of the court, in the following cases and in no others, namely,-
(a) where the mortgage is an English mortgage, and neither the mortgagor nor the mortgagee is a Hindu, Mohammedan or Buddhist or a member of any other race, sect, tribe or class from time to time specified in this behalf by the State Government, in the Official Gazette;

(b) where a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and the mortgagee is the government;

(c) where a power of sale without the intervention of the court is expressly conferred on the mortgagee by the mortgage-deed and the mortgaged property or any part thereof was, on the date of the execution of the mortgage-deed, situate within the towns of Calcutta, Madras, Bombay, or in any other town or area which the State Government may, be notification in the Official Gazette, specify in this behalf.

(2) No such power shall be exercised unless and until-

(a) notice in writing requiring payment of the principal money has been served on the mortgagor, or on one of several mortgagors, and default has been made in payment of the principal money, or of part thereof, for three months after such service; or

(b) some interest under the mortgage amounting at least to five hundred rupees is in arrear and unpaid for three months after becoming due.

(3) When a sale has been made in professed exercise of such a power, the title of the purchaser shall not be impeachable on the ground that no case had arisen to authorise the sale, or that due notice was not given, or that the power was otherwise improperly or irregularly exercised; but any person damnified by an unauthorised or improper or irregular exercise of the power shall have his remedy in damages against the person exercising the power.

(4) The money which is received by the mortgagee, arising from the sale, after discharge of prior encumbrances, if any, to which the sale is not made subject, or after payment into court under section 57 of a sum to meet any prior encumbrance, shall, in the absence of a contract to the contrary, be held by him in trust to be applied by him, first, in payment of all costs, charges and expenses properly incurred by him as incident to the sale or any attempted sale; and, secondly, in discharge of the mortgage-money and costs and other money, if any, due under the mortgage; and the residue of the money so received shall be paid to the person entitled to the mortgaged property, or authorised to give receipts for the proceeds of the sale thereof.

(5) Nothing in this section or in section 69A applies to powers conferred before the first day of July, 1882.

69A. Appointment of receiver
(1) A mortgagee having the right to exercise a power of sale under section 69 shall, subject to the provisions of sub-section (2), be entitled to appoint, by writing signed by him or on his behalf, a receiver of the income of the mortgaged property or any part thereof.
(2) Any person who has been named in the mortgage-deed and is willing and able to act as receiver may be appointed by the mortgagee.

If no person has been so named, or if all persons named are unable or unwilling to act, or are dead, the mortgagee may appoint any person to whose appointment the mortgagor agrees; failing such agreement, the mortgagee shall be entitled to apply to the court for the appointment of a receiver, and any person appointed by the court shall be deemed to have been duly appointed by the mortgagee.

A receiver may at any time be removed by writing signed by or on behalf of the mortgagee and the mortgagor, or by the court on application made by either party and on due cause shown.

A vacancy in the office of receiver may be filled in accordance with the provisions of this sub-section.

(3) A receiver appointed under the powers conferred by this section shall be deemed to be the agent of the mortgagor, and the mortgagor shall be solely responsible for the receiver’s act or defaults, unless the mortgage-deed otherwise provides or unless such acts or defaults are due to the improper intervention of the mortgagee.

(4) The receiver shall have power to demand and recover all the income of which he is appointed receiver, by suit, execution or otherwise, in the name either of the mortgagor or of the mortgagee to the full extent of the interest which the mortgagor could dispose of, and to give valid receipts accordingly for the same, and to exercise any powers which may have been delegated to him by the mortgagee, in accordance with the provisions of this section.

(5) A person paying money to the receiver shall not be concerned to inquire if the appointment of the receiver was valid or not.

(6) The receiver shall be entitled to retain out of any money received by him, for his remuneration, and in satisfaction of all costs, charges and expenses incurred by him as receiver, a commission at such rate not exceeding five per cent, on the gross amount of all money received as is specified in his appointment, and, if no rate is so specified, then at the rate of five per cent on that gross amount, or at such other rate as the court thinks fit to allow, on application made by him for that purpose.

(7) The receiver shall, if so directed in writing by the mortgagee, insure to the extent, if any, to which the mortgagee might have insured, and keep insured against loss or damage by fire, out of the money received by him, the mortgaged property or any part thereof being of an insurable nature.

(8) Subject to the provisions of this Act as to the application of insurance money, the receiver shall apply all the money received by him as follows, namely,-

(i) in discharge of all rents, taxes, land revenue, rates and outgoings whatever affecting the mortgaged property;

(ii) in keeping down all annual sums or other payments, and the interest on all principal sums, having priority to the mortgage in right whereof he is receiver;

(iii) in payment of his commission, and of the premiums of fire, life or other insurances, if any, properly payable under the mortgage-deed or under this Act, and the cost of executing necessary or proper repairs directed in writing by the mortgagee;

(iv) in payment of the interest falling due under the mortgage;

(v) in or towards discharge of the principal money, if so directed in writing by the mortgagee,

and shall pay the residue, of any of the money received by him to the person who, but for the possession of the receiver, would have been entitled to receive the income of which he is appointed receiver, or who is otherwise entitled to the mortgaged property.

(9) The provisions of sub-section (1) apply only if and as far as a contrary intention is not expressed in the mortgage-deed; and the provisions of sub-sections (3) to (8) inclusive may be varied or extended by the mortgage-deed; and, as so varied or extended, shall, as far as may be, operate in like manner and with all the like incidents, effects and consequences, as if such variations or extensions were contained in the said sub-sections.

(10) Applications may be made, without the institution of a suit, to the court for its opinion, advice or direction on any present question respecting the management or administration of the mortgaged property, other than questions of difficulty or importance not proper in the opinion of the court for summary disposal, A copy of such application shall be served upon, and the hearing thereof may be attended by such of the persons interested in the application as the court may think fit.

The costs of every application under this sub-section shall be in the discretion of the court.

(11) In this section, “the court” means the court which would have jurisdiction in a suit to enforce the mortgage.

70. Accession to mortgaged property
If, after the date of a mortgage, any accession is made to the mortgaged property, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to such accession.
Illustrations

(a) A mortgages to B a certain field bordering on a river. The field is increased by alluvion. For the purposes of his security, B is entitled to the increase.

(b) A mortgages a certain plot of building land to B and afterwards erects a house on the plot. For the purposes of his security, B is entitled to the house as well as the. plot.

71. Renewal of mortgaged lease
When the mortgaged property is a lease and the mortgagor obtains a renewal of the lease, the mortgagee, in the absence of a contract to the contrary, shall, for the purposes of the security, be entitled to the new lease.
72. Rights of mortgagee, in possession
A mortgagee may spend such money as is necessary-
(a) 6[***]

(b) for the preservation of the mortgaged property from destruction, forfeiture or sale;

(c) for supporting the mortgagor’s title to the property;

(d) for making his own title thereto good against the mortgagor; and

(e) when the mortgaged property is a renewable lease-hold, for the renewal of the lease,

and may, in the absence of a contract to the contrary, add such money to the principal money, at the rate of interest payable on the principal, and, where no such rate is fixed, at the rate of nine percent per annum: ‘

PROVIDED that the expenditure of money by the mortgagee under clause (b) or clause (c) shall not be deemed to be necessary unless the mortgagor has been called upon and has failed to take proper and timely steps to preserve the property or to support the title.

Where the property is by its nature insurable, the mortgagee may also, in the absence of a contract to the contrary, insure and keep insured against loss or damage by fire the whole or any part of such property, and the premiums paid for any such insurance shall be added to the principal money with interest at the same rate as is payable on the principal money or, where no such rate is fixed, at the rate of nine per cent per annum. But the amount of such insurance shall not exceed the amount specified in this behalf in the mortgage-deed or (if no such amount is therein specified) two-thirds of the amount that would be required in case of total destruction to reinstate the property insured.

Nothing in this section shall be deemed to authorise the mortgagee to insure when an insurance of the property is kept up by or on behalf of the mortgagor to the amounts in which the mortgagee is hereby authorised to insure.

73. Right to proceeds of revenue sale or compensation on acquisition
(1) Where the mortgaged property or any part thereof or any interest therein is sold owing to failure to pay arrears or revenue or other charges of a public nature or rent due in respect of such property, and such failure did not arise from any default of the mortgagee, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of any surplus of the sale-proceeds remaining after payment of the arrears and of all charges and deductions directed by law.
(2) Where the mortgaged property or any part thereof or any interest therein is acquired under the Land Acquisition Act, 1894 (1 of 1894), or any other enactment for the time being in force providing for the compulsory acquisition of immovable property, the mortgagee shall be entitled to claim payment of the mortgage-money, in whole or in part, out of the amount due to the mortgagor as compensation.

(3) Such claims shall prevail against all other claims except those of prior encumbrances, and may be enforced notwithstanding the principal money on the mortgage has not become due.

74. Right of subsequent mortgagee to pay off prior mortgagee
[Repealed by the Transfer of Property (Amendment) Act, 1929.]
75. Rights of mesne mortgagee against prior and subsequent mortgagees
[Repealed by the Transfer of Property (Amendment) Act, 1929.]
76. Liabilities of mortgagee in possession
When, during the continuance of the mortgage, the mortgagee takes possession of the mortgaged property, -
(a) he must manage the property as a person of ordinary prudence would manage it if it were his own;

(b) he must try his best endeavours to collect the rents and profits thereof;

(c) he must, in the absence of a contract to the contrary, out of the income of the property, pay the government revenue, all other charges of a public nature and all rent accruing due in respect thereof during such possession, and any arrears of rent in default of payment of which the property may be summarily sold;

(d) he must in the absence of a contract to the contrary, make such necessary repairs of the property as he can pay for out of the rents and profits thereof after deducting from such rents and profits the payments mentioned in clause (c) and the interest on the principal money;

(e) he must not commit any act which is destructive or permanently injurious to the property;

(f) where he has insured the whole or any part of the property against loss or damage by fire, he must, in case of such loss or damage, apply any money which he actually receives under the policy or so much thereof as may be necessary, in reinstating the property, or, if the mortgagor so directs, in reduction or discharge of the mortgage-money;

(g) he must keep clear, full and accurate accounts of all sums received and spent by him as mortgagee, and, at any time during the continuance of the mortgage, give the mortgagor, at his request and cost, true copies of such accounts and of the vouchers by which they are supported;

(h) his receipts from the mortgaged property, or, where such property is personally occupied by him, a fair occupation-rent in respect thereof, shall, after deducting the expenses properly incurred for the management of the property and the collection of rents and profits and the other expenses mentioned in clauses (c) and (d), and interest thereon, be debited against him in reduction of the amount (if any) from time to time due to him on account of interest and, so far as such receipts exceed any interest due, in reduction or discharge of the mortgage-money; the surplus, if any, shall be paid to the mortgagor;

(i) when the mortgagor tenders, or deposits in the manner hereinafter provided, the amount for the time being due on the mortgage, the mortgagee must, notwithstanding the provisions in the other clauses of this section, account for his receipts from the mortgaged property from the date of the tender or from the earliest time when he could take such amount out of court, as the case may be, and shall not be entitled to deduct any amount therefrom on account of any expenses incurred after such date or time in connection with the mortgaged property.

Loss occasioned by his default- If the mortgagee fails to perform any of the duties imposed upon him by this section, he may, when accounts are taken in pursuance of a decree made under this Chapter, be debited with the loss, if any, occasioned by such failure.

77. Receipts in lieu of interest
Nothing in section 76, clauses (b), (d), (g) and (h), applies to cases where there is a contract between the mortgagee and the mortgagor that the receipts from the mortgaged property shall, so long as the mortgagee is in possession of the property, be taken in lieu of interest on the principal money, or in lieu of such interest and defined portions of the principal.
CHAPTER IV

OF MORTGAGES OF IMMOVABLE PROPERTY AND CHARGES

PRIORITY
78. Postponement of prior mortgagee
Where, through the fraud, misrepresentation or gross neglect of prior mortgagee, another person has been induced to advance money on the security of the mortgaged property, the prior mortgagee shall be postponed to the subsequent mortgagee.
79. Mortgage to secure uncertain amount when maximum is expressed
If a mortgage made to secure future advances, the performance of an engagement or the balance of a running account, expresses the maximum to be secured thereby, a subsequent mortgage of the same property shall, if made with notice of the prior mortgage, be postponed to the prior mortgage in respect of all advances or debits not exceeding the maximum, though made or allowed with notice of the subsequent mortgage.
Illustration

A mortgages Sultanpur to his bankers, B & Co., to secure the balance of his account with them to the extent of Rs. 10,000. A then mortgages Sultanpur to C, to secure Rs. 10,000, C having notice of the mortgage to B & Co., and C gives notice to B & Co. of the second mortgage. At the date of the second mortgage, the balance due to B & Co. does not exceed Rs. 5,000. B & Co. subsequently advance to A sums making the balance of the account against him exceed the sum of Rs. 10,000. B & Co. are entitled, to the extent of Rs. 10,000, to priority over C.

80. Tacking abolished
[Repealed by the Transfer of Property (Amendment) Act, 1929 (20 of 1929).]
MARSHALLING AND CONTRIBUTION
81. Marshalling securities
If the owner of two or more properties mortgages them to one person and then mortgages one or more of the properties to another person, the subsequent mortgage is, in the absence of a contract to the contrary, entitled to have the prior mortgage-debt satisfied out of the property or properties not mortgaged to him, so far as the same will extend, but not so as to prejudice the rights of the prior mortgagee or of any other person who has for consideration acquired an interest in any of the properties.
82. Contribution to mortgage-debt
Where property subject to a mortgage belongs to two or more persons having distinct and separate rights of ownership therein, the different shares in or parts of such property owned by such persons are, in the absence of a contract to the contrary, liable to contribute rateably to the debt secured by the mortgage, and, for the purpose of determining the rate at which each such share or part shall contribute, the value thereof shall be deemed to be its value at the date of the mortgage after deduction of the amount of any other mortgage or charge to which it may have been subject on that date.
Where, of two properties belonging to the same owner, one is mortgaged to secure one debt and then both are mortgaged to secure another debt, and the former debt is paid out of the former property, each property is, in the absence of a contract to the contrary, liable to contribute rateably to the latter debt after deducting the amount of former debt from the value of the property out of which it has been paid.

Nothing in this section applies to a property liable under section 81 to the claim of the subsequent mortgage.

DEPOSIT IN COURT

83. Power to deposit in court money due on mortgage
At any time after the principal money payable in respect of any mortgage has become due and before a suit for redemption of the mortgaged property is barred, the mortgagor, or any other person entitled to institute such suit, may deposit, in any court in which he might have instituted such suit, to the account of the mortgagee, the amount remaining due on the mortgage.
Right to money deposited by mortgagor-The court shall thereupon cause written notice of the deposit to be served on the mortgagee, and the mortgagee may, on presenting a petition (verified in manner prescribed by law for the verification of plaints) stating the amount then due on the mortgage, and his willingness to accept the money so deposited in full discharge of such amount, and on depositing in the same court the mortgage-deed and all documents in his possession or power relating to the mortgaged property, apply for and receive the money, and the mortgage-deed, and all such other documents so deposited shall be delivered to the mortgagor or such other person as aforesaid

Where the mortgagee is in possession of the mortgaged property, the court shall, before paying to him the amount so deposited direct him to deliver possession thereof to the mortgagor and at the cost of the mortgagor either to re-transfer the mortgaged property to the mortgagor or to such third person as the mortgagor may direct or to execute and (where the mortgage has been effected by a registered instrument) have registered an acknowledgement in writing that any right in derogation of the mortgagor’s interest transferred to the mortgagee has been extinguished.

84. Cessation of interest
When the mortgagor or such other person as aforesaid has tendered or deposited in court under section 83 the amount remaining due on the mortgage, interest on the principal money shall cease from the date of the tender or in the case of a deposit, where no previous tender of such amount has been made as soon as the mortgagor or such other person as aforesaid has done all that has to be done by him to enable the mortgagee to take such amount out of court, and the notice required by section 83 has been served on the mortgagee:
PROVIDED that, where the mortgagor has deposited such amount without having made a previous tender thereof and has subsequently withdrawn the same or any part thereof, interest on the principal money shall be payable from the date of such withdrawal.

Nothing in this section or in section 83 shall be deemed to deprive the mortgagee of his right to interest when there exists a contract that he shall be entitled to a reasonable notice before payment or tender of the mortgage-money and such notice has not been given before the making of the tender or deposit, as the case may be.

SUITS FOR FORECLOSURE, SALE OR REDEMPTION

85. Parties to suits for foreclosure, sale and redemption
[Repealed by the Code of Civil Procedure, 1908 (5 of 1908).]
FORECLOSURE AND SALE

Sections 86 to 90 -
[Repealed by the Code of Civil Procedure, 1908 (5 of 1908).]
REDEMPTION

91. Persons who may sue for redemption
Besides the mortgagor, any of the following persons may redeem, or institute a suit for redemption of, the mortgaged property, namely,-
(a) any person (other than the mortgagee of the interest sought to be redeemed) who has any interest in, or charge upon, the property mortgaged or in or upon the right to redeem the same;

(b) any surety for the payment of the mortgage-debt or any part thereof; or

(c) any creditor of the mortgagor who has in a suit for the administration of his estate obtained a decree for sale of the mortgaged property.

92. Subrogation
Any of the persons referred to in section 91 (other than the mortgagor) and any co-mortgagor shall, on redeeming property subject to the mortgage, have, so far as regards redemption, foreclosure or sale of such property, the same rights as the mortgagee whose mortgage he redeems may have against the mortgagor or any other mortgagee.
The right conferred by this section is called the right of subrogation, and a person acquiring the same is said to be subrogated to the rights of the mortgagee whose mortgage he redeems.

A person who has advanced to a mortgagor money with which the mortgage has been redeemed shall be subrogated to the rights of the mortgagee whose mortgage has been redeemed, if the mortgagor has by a registered instrument agreed that such persons shall be so subrogated. .

Nothing in this section shall be deemed to confer a right of subrogation on any person unless the mortgage in respect of which the right is claimed has been redeemed in full.

93. Prohibition of tacking
No mortgagee paying off a prior mortgage, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his original security; and, except in the case provided for by section 79, no mortgagee making a subsequent advance to the mortgagor, whether with or without notice of an intermediate mortgage, shall thereby acquire any priority in respect of his security for such subsequent advance.
94. Rights of mesne mortgagee
Where a property is mortgaged for successive debts to successive mortgagees, a mesne mortgagee has the same rights against mortgagees posterior to himself as he has against the mortgagor.
95. Right of redeeming co-mortgagor to expenses
Where one of several mortgagors redeems the mortgaged property, he shall, in enforcing his right of subrogation under section 92 against his co-mortgagors, be entitled to add to the mortgage money recoverable from them such proportion of the expenses properly incurred in such redemption as is attributable to their share in the property.
96. Mortgage by deposit of title-deeds
The provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to a mortgage by deposit of title-deeds.
97. Application of proceeds
[Repealed by the Code of Civil Procedure, 1908 (5 of 1908)]
ANOMALOUS MORTGAGES
98. Rights and liabilities of parties to anomalous mortgage
In the case of an anomalous mortgage the rights and liabilities of the parties shall be determined by their contract as evidenced in the mortgage-deed, and, so far as such contract does not extend by local usage.
ATTACHMENT OF MORTGAGED PROPERTY
99. Attachment of mortgaged property
[Repealed by the Code of Civil Procedure, 1908 (5 of 1908).]
CHARGES
100. Charges
Where immovable property of one person is by act of parties or operation of law made security for the payment of money to another, and the transaction does not amount to a mortgage, the latter person is said to have a charge on the property and all the provisions hereinbefore contained which apply to a simple mortgage shall, so far as may be, apply to such charge.
Nothing in this section applies to the charge of a trustee on the trust-property for expenses properly incurred in the execution of his trust, and, save as otherwise expressly provided by any law for the time being in force, no charge shall be enforced against any property in the hands of a person to whom such property has been transferred for consideration and without notice of the charge.

101. No merger in case of subsequent encumbrance
Any mortgagee of, or person having a charge upon, immovable property, or any transferee from such mortgagee or charge-holder, may purchase or otherwise acquire the rights in the property of the mortgagor or owner, as the case may be, without thereby causing the mortgage or charge to be merged as between himself and any subsequent mortgagee of, or person having a subsequent charge upon, the same property; and no such subsequent mortgagee or charge-holder shall be entitled to foreclose or sell such property without redeeming the prior mortgage or charge, or otherwise than subject thereto.
NOTICE AND TENDER

102. Service or tender on or to agent
Where the person on or to whom any notice or tender is to be served or made under this Chapter does not reside in the district in which the mortgaged property or some part thereof is situate, service or tender on or to an agent holding a general power of attorney from such person or otherwise duly authorised to accept such service or tender shall be deemed sufficient.
Where no person or agent on whom such notice should be served can be found or is known to the person required to serve the notice, the latter person may apply to any court in which a suit might be brought for redemption of the mortgaged property, and such court shall direct in what manner such notice shall be served, and any notice served in compliance with such direction shall be deemed sufficient:

PROVIDED that, in the case of a notice required to section 83, in the case of a deposit, the application shall be made to the court in which the deposit has been made.

Where no person or agent to whom such tender should be made can be found or is known to the person desiring to make the tender, the latter person may deposit in any court in which a suit might be brought for redemption of the mortgaged property the amount sought to be tendered, and such deposit shall have the effect of a tender of such amount.

103. Notice, etc., to or by person incompetent to contract
Where, under the provisions of this Chapter, a notice is to be served on or by, or a tender or deposit made or accepted or taken out of court by, any person incompetent to contract, such notice may be s erved on or by or tender or deposit made, accepted or taken, by the legal curator of the property of such person; but where there is no such curator, and it is requisite or desirable in the interests of such person that a notice should be served or a tender or deposit made under the provisions of this Chapter, application may be made to any court in which a suit might be brought for the redemption of the mortgage to appoint a guardian ad litem for the purpose of serving or receiving service of such notice, or making or accepting such tender, or making or taking out of court such deposit, and for the performance of all consequential acts which could or ought to be done by such person if he were competent to contract; and the provisions of order XXXII in the Schedule I to the Code of Civil Procedure, 1908 (5 of 1908) shall, so far as may be, apply to such application and to parties thereto and to the guardian appointed thereunder.
104. Power to make rules
The High Court may, from time to time, make rules consistent with this Act for carrying out, in itself and in the Court of Civil Judicature subject to its superintendence, the provisions contained in this Chapter.
CHAPTER V

OF LEASES OF IMMOVABLE PROPERTY


105. Lease defined
A lease of immovable property is a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service or any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee, who accepts the transfer on such terms.
Lessor, lessee, premium and rent defined : The transferor is called the lessor, the transferee is called the lessee, the price is called the premium, and the money, share, service or other thing to be so rendered is called the rent.

106. Duration of certain leases in absence of written contract or local usage
In the absence of a contract or local law or usage to the contrary, a lease of immovable property for agricultural or manufacturing purposes shall be deemed to be a lease from year to year, terminable, on the part of either lessor or lessee, by six months’ notice expiring with the end of a year of the tenancy; and a lease of immovable property for any other purpose shall be deemed to be a lease from month to month, terminable, on the part of either lessor or lessee, by fifteen days’ notice expiring with the end of a month of the tenancy.
Every notice under this section must be in writing, signed by or on behalf of the person giving it, and either be sent by post to the party who is intended to be bound by it or be tendered or delivered personally to such party, or to one of his family or servants at his residence, or (if such tender or delivery is not practicable) affixed to a conspicuous part of the property.

107. Leases how made
A lease of immovable property from year to year, or for any term exceeding one year or reserving a yearly rent, can be made only by a registered instrument.
All other leases of immovable property may be made either by a registered instrument or by oral agreement accompanied by delivery of possession.

Where a lease of immovable property is made by a registered instrument, such instrument or, where there are more instruments than one, each such instrument shall be executed by both the lessor and the lessee:

PROVIDED that the State Government from time to time, by notification in the Official Gazette, direct that leases of immovable property, other than leases from year to year, or for any term exceeding one year, or reserving a yearly rent, or any class of such leases, may be made by unregistered instrument or by oral agreement without delivery of possession.

108. Rights and liabilities of lessor and lessee
In the absence of a contract or local usage to the contrary, the lessor and the lessee of immovable property, as against one another, respectively, possess the rights and are subject to the liabilities mentioned in the rules next following, or such of them as are applicable to the property leased:-
(A) Rights and liabilities of the lessor

(a) The lessor is bound to disclose to the lessee any material defect in the property, with reference to its intended use, of which the former is and the latter is not aware, and which the latter could not with ordinary care discover;

(b) the lessor is bound on the lessee’s request to put him in possession of the property;

(c) the lessor shall be deemed to contract with the lessee that, if the latter pays the rent reserved by the lease and performs the contracts binding on the lessee, he may hold the property during the time limited by the lease without interruption.

The benefit of such contract shall be annexed to and go with the lessee’s interest as such, and may be enforced by every person in whom that interest is for the whole or any part thereof from time to time vested.

(B) Rights and liabilities of the lessee

(d) If during the continuance of the lease any accession is made to the property, such accession (subject to the law relating to alluvion for the time being in force) shall be deemed to be comprised in the lease;

(e) if by fire, tempest or flood, or violence of an army or of a mob, or other irresistible force, any material part of the property be wholly destroyed or rendered substantially and permanently unfit for the purposes for which it was let, the lease shall, at the option of the lessee, be void:

PROVIDED that, if the inquiry be occasioned by the wrongful act or default of the lessee, he shall be entitled to avail himself of the benefit of this provision;

(f) if the lessor neglects to make, within a reasonable time after notice, any repairs which he is bound to make to the property, the lessee may make the same himself, and deduct the expense of such repairs with interest from the rent, or otherwise recover it from the lessor;

(g) if the lessor neglects to make any payment which he is bound to make, and which, if not made by him, is recoverable from the lessee or against the property, the lessee may make such payment himself, and deduct it with interest from the rent, or otherwise recover it from the lessor;

(h) the lessee may even after the determination of the lease remove, at any time whilst he is in possession of the property leased but not afterwards all things which he has attached to the earth; provided he leaves the property in the state in which he received it;

(i) when a lease of uncertain duration determines by any means except the fault of the lessee, he or his legal representative is entitled to all the crops planted or sown by the lessee and growing upon the property when the lease determines, and to free ingress and egress to gather and carry them;

(j) the lessee may transfer absolutely or by way of mortgage or sub-lease the whole or any part of his interest in the property, and any transferee of such interest or part may again transfer it. The lessee shall not, by reason only of such transfer, cease to be subject to any of the liabilities attaching to the lease;

nothing in this clause shall be deemed to authorise a tenant having an untransferable right of occupancy, the farmer of an estate in respect of which default has been made in paying revenue, or the lessee of an estate under the management of a Court of Wards, to assign his interest as such tenant, farmer or lessee;

(k) the lessee is bound to disclose to the lessor any fact as to the nature or extent of the interest which the lessee is about to take of which the lessee is, and the lessor is not aware, and which materially increases the value of such interest;

(1) the lessee is bound to pay or tender, at the proper time and place, the premium or rent to the lessor or his agent in this behalf;

(m) the lessee is bound to keep, and on the termination of the lease to restore, the property in as good condition as it was in at the time when he was put in possession, subject only to the changes caused by reasonable wear and tear or irresistible force, and to allow the lessor and his agents, at all reasonable times during the term, to enter upon the property and inspect the condition thereof and give or leave notice of any defect in such condition; and, when such defect has been caused by any act or default on the part of the lessee, his servants or agents, he is bound to make it good within three months after such notice has been given or left;

(n) if the lessee becomes aware of any proceeding to recover the property or any part thereof, or of any encroachment made upon, or any interference with, the lessor’s rights concerning such property, he is bound to give, with reasonable diligence, notice thereof to the lessor;

(o) the lessee may use the property and its products (if any) as a person of ordinary prudence would use them if they were his own; but he must not use, or permit another to use, the property for a purpose other than that for which it was leased, or fell or sell timber, pull down or damage buildings belonging to the lessor, or work mines or quarries not open when the lease was granted, or commit any other act which is destructive or permanently injurious thereto;

(p) he must not, without the lessor’s consent, erect on the property any permanent structure, except for agricultural purposes;

(q) on the determination of the lease, the lessee is bound to put the lessor into possession of the property.

109. Rights of lessor’s transferee
If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him:
PROVIDED that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pays rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee.

The lessor, the transferee and the lessee may determine what proportion of the premium or rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any court having jurisdiction to entertain a suit for the possession of the property leased.

110. Exclusion of day on which term commences
Where the time limited by a lease of immovable property is expressed as commencing from a particular day, in computing that time such day shall be excluded. Where no day of commencement is named, the time so limited begins from the making of the lease.
Duration of lease for a year: Where the time so limited is a year or a number of years, in the absence of an express agreement to the contrary, the lease shall last during the whole anniversary of the day from which such time commences.

Option to determine lease: Where the time so limited is expressed to be terminable before its expiration, and the lease omits to mention at whose option it is so terminable, the lessee, and not the lessor, shall have such option.

111. Determination of lease
A lease of immovable property determines-
(a) by efflux of the time limited thereby,

(b) where such time is limited conditionally on the happening of some event-by the happening of such event,

(c) where the interest of the lessor in the property terminates on, or his power to dispose of the same extends only to, the happening of any event-by the happening of such event,

(d) in case the interests of the lessee and the lessor in the whole of the property become vested at the same time in one person in the same right,

(e) by express surrender, that is to say, in case the lessee yields up his interest under the lease to the lessor, by mutual agreement between them,

(f) by implied surrender,

(g) by forfeiture; that is to say, (1) in case the lessee breaks an express condition which provides that, on breach thereof, the lessor may re-enter; or (2) in case the lessee renounces his character as such by setting up a title in a third person or by claiming title in himself; or (3) the lessee is adjudicated an insolvent and the lease provides that the lessor may re-enter on the happening of such event; and in any of these cases the lessor or his transferee gives notice in writing to the lessee of his intention to determine the lease,

(h) on the expiration of a notice to determine the lease, or to quit, or of intention to quit, the property leased, duly given by one party to the other.

Illustration to clause (f)

A lessee accepts from his lessor a new lease of the property leased, to take effect during the continuance of the existing lease. This is an implied surrender of the former lease, and such lease determines thereupon.

112. Waiver of forfeiture
A forfeiture under section 111, clause (g) is waived by acceptance of rent which has become due since the forfeiture, or by distress for such rent, or by any other act on the part of the lessor showing an intention to treat the lease as subsisting:
PROVIDED that the lessor is aware that the forfeiture has been incurred:

PROVIDED FURTHER that, where rent is accepted after the institution of a suit to eject the lessee on the ground of forfeiture, such acceptance is not a waiver.

113. Waiver of notice to quit
A notice given under section 111, clause (h), is waived, with the express or implied consent of the person to whom it is given, by any act on the part of the person giving it showing an intention to treat the lease as subsisting.
Illustrations

(a) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires. B tenders and A accepts, rent which has become due in respect of the property since the expiration of the notice. The notice is waived.

(b) A, the lessor, gives B, the lessee, notice to quit the property leased. The notice expires, and B remains in possession. A gives to B as lessee a second notice to quit. The first notice is waived.

114. Relief against forfeiture for non-payment of rent
Where a lease of immovable property has been determined by forfeiture for non-payment of rent, and the lessor sues to eject the lessee, if, at the hearing of the suit, the lessee pays or tenders to the lessor the rent in arrear, together with interest thereon and his full costs of the suit, or gives such security as the court thinks sufficient for making such payment within fifteen days, the court may, in lieu of making a decree for ejectment, pass an order relieving the lessee against the forfeiture; and thereupon the lessee shall hold the property leased as if the forfeiture had not occurred.
114A. Relief against forfeiture in certain other cases
Where a lease of immovable property has been determined by forfeiture for a breach of an express condition which provides that on breach thereof the lessor may re-enter, no suit for ejectment shall lie unless and until the lessor has served on the lessee a notice in writing-
(a) specifying the particular breach complained of; and

(b) if the breach is capable of remedy, requiring the lessee to remedy the breach,

and the lessee fails, within a reasonable time from the date of the service of the notice, to remedy the breach, if it is capable of remedy.

Nothing in this section shall apply to an express condition against the assigning, under-letting, parting with the possession, or disposing, of the property leased, or to an express condition relating to forfeiture in case of non-payment of rent.

115. Effect of surrender and forfeiture on underleases
The surrender, express or implied, of a lease of immovable property does not prejudice an under lease of the property or any part thereof previously granted by the lessee, on terms and conditions substantially the same (except as regards the amount of rent) as those of the original lease; but, unless the surrender is made for the purpose of obtaining a new lease, the rent payable by, and the contracts binding on, the underlessee shall be respectively payable to and enforceable by the lessor.
The forfeiture of such a lease annuls all such underleases, except where such forfeiture has been procured by the lessor in fraud of the underlessees, or relief against the forfeiture is granted under section 114.

116. Effect of holding over
If a lessee or underlessee of property remains in possession thereof after the determination of the lease granted to the lessee, and the lessor or his legal representative accepts rent from the lessee or underlessee, or otherwise assents to his continuing in possession, the lease is, in the absence of an agreement to the contrary, renewed from year to year, or from month to month, according to the purpose for which the property is leased, as specified in section 106.
Illustrations

(a) A lets a house to B for five years. B underlets the house to C at a monthly rent of Rs. 100. The five years expire, but C continues in possession of the house and pays the rent to A. C’s lease is renewed from month to month.

(b) A lets a farm to B for the life of C. C dies, but B continues in possession with A’s assent. B’s lease is renewed from year to year.

117. Exemption of leases for agricultural purposes
None of the provisions of this Chapter apply to leases for agricultural purposes, except insofar as the State Government may, by notification published in the Official Gazette, declare all or any of such provisions to be so applicable in the case of all or any of such leases, together with, or subject to, those of the local law, if any, for the time being in force.
Such notification shall not take effect until the expiry of six months from the date of its publication.


CHAPTER VI : OF EXCHANGES


118. “Exchange” defined
When two persons mutually transfer the ownership of one thing for the ownership of another, neither thing or both things being money only, the transaction is called an “exchange”.
A transfer of property in completion of an exchange can be made only in manner provided for the transfer of such property by sale.

119. Right of party deprived of thing received in exchange
If any party to an exchange or any person claiming through or under such party is by reason of any defect in the title of the other party deprived of the thing or any part of the thing received by him in exchange, then, unless a contrary intention appears from the terms of the exchange, such other party is liable to him or any person claiming through or under him for loss caused thereby, or at the option of the person so deprived, for the return of the thing transferred, if still in the possession of such other party or his legal representative or a transferee from him without consideration.
120. Rights and liabilities of parties
Save as otherwise provided in this Chapter, each party has the rights and is subject to the liabilities of a seller as to that which he gives, and has the rights and is subject to the liabilities of a buyer as to that which he takes.
121. Exchange of money
On an exchange of money, each party thereby warrants the genuineness of the money given by him.
CHAPTER VII

OF GIFTS


122. “Gift” defined
“Gift” is the transfer of certain existing movable or immovable property made voluntarily and without consideration, by one person, called the donor, to another, called the donor, and accepted by or on behalf of the donee.
Acceptance when to be made-Such acceptance must be made during the lifetime of the donor and while he is still capable of giving.

If the donee dies before acceptance, the gift is void.

123. Transfer how effected
For the purpose of making a gift of immovable property, the transfer must be effected by a registered instrument signed by or on behalf of the donor, and attested by at least two witnesses.
For the purpose of making a gift of movable property, the transfer may be effected either by a registered instrument signed as aforesaid or by delivery.

Such delivery may be made in the same way as goods sold may be delivered.

124. Gift of existing and future property
A gift comprising both existing and future property is void as to the latter.
125. Gift to several of whom one does not accept
A gift of a thing to two or more donees, of whom one does not accept it, is void as to the interest which he would have taken had he accepted.
126. When gift may be suspended or revoked
The donor and donee may agree that on the happening of any specified event which does not depend on the will of the donor a gift shall be suspended or revoked; but a gift which the parties agree shall be revocable wholly or in part, at the mere will of the donor, is void wholly or in part, as the case may be.
A gift may also be revoked in any of the cases (save want or failure of consideration) in which, if it were a contract, it might be rescinded.

Save as aforesaid, a gift cannot be revoked.

Nothing contained in this section shall be deemed to affect the rights of transferees for consideration without notice.

Illustrations

(a) A gives a field to B, reserving to himself, with B’s assent, the right to take back the field in case B and his descendants die before A. B dies without descendants in A’s lifetime. A may take back the field.

(b) A gives a lakh of rupees to B, reserving to himself, with B’s assent, the right to take back at pleasure Rs. 10,000 out of the lakh. The gift holds goods as to Rs. 90,000, but is void as to Rs. 10,000, which continue to belong to A.

127. Onerous gifts
Where a gift in the form of a single transfer to the same person of several things of which one is, and the others are not burdened by an obligation, the donee can take nothing by the gift unless he accepts it fully.
Where a gift is in the form of two or more separate and independent transfers to the same person of several things, the donee is at liberty to accept one of them and refuse the others, although the former may be beneficial and the latter onerous.

Onerous gift to disqualified person: A donee not competent to contract and accepting property burdened by any obligation is not bound by his acceptance. But if, after becoming competent to contract and being aware of the obligation, he retains the property given, he becomes so bound.

Illustrations

(a) A has shares in X, a prosperous joint stock company, and also shares in Y, a joint stock company in difficulties. Heavy calls are expected in respect of the shares in Y. A gives B all his shares in joint stock companies. B refuses to accept the shares in Y. He cannot take the shares in X.

(b) A, having a lease for a term of years of a house at a rent which he and his representatives are bound to pay during the term, and which is more than the house can be let for, gives to B the lease, and also, as a separate and independent transaction, a sum of money. B refuses to accept the lease. He does not by this refusal forfeit the money.

128. Universal donee
Subject to the provisions of section 127, where a gift consists of the donor’s whole property, the donee is personally liable for all the debts due by and liabilities of the donor at the time of the gift to the extent of the property comprised therein.
129. Saving of donations mortis causa and Mohammedan Law
Nothing in this Chapter relates to gifts of moveable property made in contemplation of death, or shall be deemed to affect any rule of Mohammedan law.

CHAPTER VIII : OF TRANSFERS OF ACTIONABLE CLAIMS

130. Transfer of actionable claim
(1) The transfer of an actionable claim whether with or without consideration shall be effected only by the execution of an instrument in writing signed by the transferor or his duly authorised agent, shall be complete and effectual upon the execution of such instruments, and thereupon all the rights and remedies of the transferor, whether by way of damages or otherwise, shall vest in the transferee, whether such notice of the transfer as is hereinafter provided be given or not:
PROVIDED that every dealing with the debtor other actionable claim by the debtor or other person from or against whom the transferor would, but for such instrument of transfer as aforesaid, have been entitled to recover or enforce such debt or other actionable claim, shall (save where the debtor or other person is a party to the transfer or has received express notice thereof as hereinafter provided) be valid as against such transfer.

(2) The transferee of an actionable claim may, upon the execution of such instrument of transfer as aforesaid, sue or institute proceedings for the same in his own name without obtaining the transferor’s consent to such suit or proceeding and without making him a party thereto.

Exception : Nothing in this section applies to the transfer of a marine or fire policy of insurance or affects the provisions of section 38 of the Insurance Act, 1938 (4 of 1938).

Illustrations

(i) A owes money to B, who transfers the debt to C. B then demands the debt from A, who, not having received notice of the transfer, as prescribed in section 131, pays B. The payment is valid, and C cannot sue A for the debt.

(ii) A effects a policy on his own life with an insurance company and assigns it to a bank for securing the payment of an existing or future debt. If A dies, the bank is entitled to receive the amount of the policy and to sue on it without the concurrence of A’s executor, subject to the proviso in sub-section (1) of section 130 and to provisions of section 132.

130A. Transfer of policy of marine insurance
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f. 1-8-1963.]
131. Notice to be in writing, signed
Every notice of transfer of an actionable claim shall be in writing, signed by the transferor or his agent duly authorised in this behalf, or, in case the transferor refuses to sign, by the transferee or his agent, and shall state the name and address of the transferee.
132. Liability of transferee of actionable claim
The transferee of an actionable claim shall take it subject to all the liabilities and equities and to which the transferor was subject in respect thereof at the date of the transfer
The Schedule

(a) STATUES

Year and Chapter
Subject
Extent of repeal
27 Hen. VIII,c.10
Uses
The whole
13 Eliz., c.5
Fraudulent conveyances
The whole
27 Eliz.,c.4
Fraudulent conveyances
The whole
4 Wm. and Mary, c.16
Clandestine mortgages
The whole
(b) ACT OF THE GOVERNOR GENERAL IN COUNCIL

Number and Year
Subject
Extent of repeal
IX of 1842
Lease and re-lease
The whole
XXXI of 1854
Modes of conveying land
Section 17
XI of 1855
Mesne profits and improvements
Section 1; in the title, the words “to mesne profits and “, and in the preamble ” to limit the liability for mesne profits and”
XXVII of 1866
Indian Trustee Act
Section 31
IV of 1872
Punjab Laws Act
So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XX of 1875
Central Provinces Laws Act
So far as it relates to Bengal Regulations I of 1798 and XVII of 1806
XVII of 1876
Oudh Laws Act
So far as it relates to Bengal Regulations XVII of 1806
1 of 1877
Specific Relief
In ss. 35 and 36, the words “in writing”
(c) REGULATIONS

Number and Year
Subject
Extent of repeal
Bengal Regulation I of 1798
Conditional Sales
The whole Regulation
Bengal Regulation XVII of 1806
Redemption
The whole Regulation
Bombay Regulation V of 1827
Acknowledgement of debts; interest; mortgages in possession
Section 15
Illustrations

(i) A transfers to C a debt due to him by B, A being then indebted to B. C sues B for the debt due by B to A. In such suit B is entitled to set off the debt due by A to him; although C was unaware of it at the date of such transfer.

(ii) A executed a bond in favour of B under circumstances entitling the former to have it delivered up and cancelled. B assigns the bond to C for value and without notice of such circumstances. C cannot enforce the bond against A.

133. Warranty of solvency of debtor
Where the transferor of a debt warrants the solvency of the debtor, the warranty, in the absence of a contract to the contrary, applies only to his solvency at the time of the transfer, and is limited, where the transfer is made for consideration, to the amount or value of such consideration.
134. Mortgaged debt
Where a debt is transferred for the purpose of securing an existing or future debt, the debt so transferred, if received by the transferor or recovered by the transferee, is applicable, first, in payment of the costs of such recovery; secondly, in or towards satisfaction of the amount for the time being secured by the transfer, and the residue, if any, belongs to the transferor or other person entitled to receive the same.
135. Assignment of rights under policy of insurance against fire
Every assignee by endorsement or other writing, of a policy of insurance against fire, in whom the property in the subject insured shall be absolutely vested at the date of assignment, shall have transferred and vested in him all rights of suit as if the contract contained in the policy has been made with himself.
135A. Assignment of rights under policy of marine insurance
[Repealed by the Marine Insurance Act, 1963 (11 of 1963), w.e.f. 1-8-1963.]
136. Incapacity of officers connected with courts of justice
No judge, legal practitioner or officer connected with any court of justice shall buy or traffic in, or stipulate for, or agree to receive any share of, or interest in, any actionable claim, and no court of justice shall enforce, at his instance, or at the instance of any person claiming by or through him, any actionable claim so dealt with by him as aforesaid.
137. Saving of negotiable instruments, etc.
Nothing in the foregoing sections of this Chapter applies to stocks, shares or debentures, or to instruments which are for the time being, by law or custom, negotiable, or to any mercantile document of title to goods.
Explanation : The expression “mercantile document of title to goods” includes a bill of lading, dock-warrant, warehouse-keeper’s certificate, railway receipt, warrant or order for the delivery of goods, and any other document used in the ordinary course of business as proof of the possession or control of goods, or authorising or purporting to authorise, either by endorsement or by delivery, the possessor of the document to transfer or receive goods thereby represented.

Foot Notes

1 Added by Act No. 3 of 1885.

2 Substituted by Act No. 20 of 1929, for the Year “1877″.

3 Substituted by the AO 1950, for the words “in the Provinces or established beyond the limits of the Provinces”.

4 Substituted by Act No. 3 of 1951, for the words “within the limits of Part A States and Part C States”, w.e.f. 1-4-1951.

5 The words and figures “Notwithstanding anything contained in the Trustees’ and Mortgagee Powers Act, 1866″ omitted by Act No. 48 of 1952.

6 Clause (a) omitted by Act No. 20 of 1929

THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986

November 20th, 2011 Comments off
THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) ACT, 1986
(NO. 60 OF 1986)
An Act to prohibit indecent representation of women through advertisements or in publications, writings, paintings, figures or in any other manner and for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Thirty-seven Year of the Republic of India as follows:-
1. Short title, extent and commencement.- (1) This Act may be called the Indecent Representation of Women (Prohibition) Act, 1986.

(2) It extends to the whole of India, except the State of Jammu and Kashmir.

(3) It shall come into force on such date as the Central Government may, by notification in the Official Gazette, appoint.

2. Definitions.- In this Act, unless the context otherwise requires,-

“advertisement” includes any notice, circular, label, wrapper or other document and also includes any visible representation made by means of any light, sound, smoke or gas;

“distribution” includes distribution by way of samples whether free or otherwise;

“indecent representation of women” means the depiction in any manner of the figure of a woman; her form or body or any part thereof in such way as to have the effect of being indecent, or derogatory to, or denigrating women, or is likely to deprave, corrupt or injure the public morality or morals;

“label” means any written, marked, stamped, printed or graphic matter, affixed to, or appearing upon, any package;

“package” includes a box, a carton, tin or other container;

“prescribed” means prescribed by rules made under this Act.

3.Prohibition of advertisements containing indecent representation of Women.- No person shall publish, or cause to be published, or arrange or take part in the publication or exhibition of, any advertisement which contains indecent representation of women in any form.

4.Prohibition of publication or sending by post of books, pamphlets, etc; containing indecent representation of women.- No person shall produce or cause to be produced, sell , let to hire, distribute, circulate or send by post any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph , representation or figure which contains indecent representation of women in any form:

Provided that noting in this section shall apply to-

(a) any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure –

(i) the publication of which is proved to be justified as justified as being for the public good on the ground that such book, pamphlet, paper, slide , film, writing, drawing, painting, photography, representation or figure is in the interest of science, literature, art, or learning , art, or learning or other objects of general concern; or

(ii) which is kept or used bona fide for religious purpose;any representation sculptured, engraved, painted or otherwise represented on or in –

(i) any ancient monument within the meaning of the Ancient Monument and Archaeological Sites and Remains Act, 1958 (24 of 1958); or

(ii) any temple, or on any car used or the conveyance of idols, or kept or used for any religious purpose; any film in respect of which the provisions of Part II of the Cinematograph Act, 1952 (37 of 1952), will be applicable.

5. Powers to enter and search.- (1) Subject to such rules as may be prescribed, any Gazetted Officer authorized by the State Government may, within the local limits of the area for which he is so authorized:-

enter and search at all reasonable times, with such assistance, if any , as he considers necessary, any place in which he has reason to believe that an offence under this Act has been or is being committed;

seize any advertisement or any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation or figure which he has reason to believe contravenes any of the provisions of this Act;

examine any record, register, document or any other material object found in any place mentioned in Cl.(a) and seize the same if he has reason to believe that it may furnish evidence of the commission of an offence punishable under this Act.

Provided that no entry under this sub-section shall be made into a private dwelling-house without a warrant:

Provided further that the power of seizure under this sub-section may be exercised in respect of any document, article or thing which contains any such advertisement, including the contents, if any, of such document, article or thing if the advertisement cannot be separated by reason of its being embossed or otherwise from such document, article or thing without affecting the integrity, utility or saleable value thereof.

(2)The provisions of the Code of Criminal Procedure, 1973(2 of 1974), shall, so far as may be, apply to any search or seizure made under the authority of a warrant issued under Sec.94 of the said Code.

(3)where any person seizes anything under Cl.(b) or Cl.(c) of sub section (1), he shall, as soon as may be, inform the nearest Magistrate and take his orders as to the custody thereof.

6.Penalty.- Any person who contravenes the provisions of Sec 3 or Sec 4 shall be punishable on first conviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and in the event of a second or subsequent conviction with imprisonment for term of not less than six months but which may extend to five years and also with a fine not less than ten thousand rupees but which may extend to one lakh rupees.

7.Offences by companies.- (1) Where an offence under this Act has been committed by a company, every person, who, at the time the offence was committed was in-charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he had exercised all due diligence to prevent the commission of such offence.

(2) Notwithstanding anything contained in sub-section (1), where any offence under this Act has been committed by a company and it is proved that the offence has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be proceeded against and punished accordingly.

Explanation – For the purpose of this section.-

“company” means any body corporate and includes a firm or other association of individuals; and

“director”, in relation to a firm, means a partner in the firm.

8. Offences to be cognizable and bailable.-(1) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (2of 1974) , an offence punishable under this Act shall be bailable.

(2) An offence punishable under this Act shall be cognizable.

9. Protection of action taken in good faith.- No suit, prosecution or other legal proceeding shall lie against the Central Government or any State Government or any officer of the Central Government or any State Government for anything which is in good faith done or intended to be done under this Act.

10. Power to make rules.-(1) The Central Government may, by notification in the Official Gazette, make rules to carry out the provisions of this Act.

(2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:-

(a) the manner in which the seizure of advertisement or other articles shall be made, and the manner in which the seizure list shall be prepared and delivered to the person from whose custody any advertisement or other article has been seized;

any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act, shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session for a total period of thirty days, which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or the successive session aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

Indecent Representation of Women (Prohibition) Rules, 1987

G.S.R.822 (E), dated 25th September, 1987.- In exercise of the powers conferred by Sec.10 of the Indecent representation of Women (Prohibition) Act, 1986 (60 of 1986), the Central Government hereby makes the following rules, namely :

1. Short title and commencement.- (1) These rules may be called the Indecent Representation of Women (Prohibition) Rules, 1987.

(2) They shall come into force on the 2nd October, 1987.

2. Definitions.-(1) In these rules, unless the context otherwise requires,-

`Act’ means the Indecent Representation of women (Prohibition) Act, 1986 (60 of 1986) ;

(b) `article’ means any book, pamphlet, paper, slide, film, writing, drawing, painting, photograph, representation of figure;

(c) `authorized officer’ means any Gazetted Officer authorized by the State Government for the purpose of section 5 of the Act.

(d) `section’ means a section of the Act.

(2) Words and expressions used in these rules and not defined, shall have the meanings respectively, assigned to them in the Act.

3. Manner of seizure of articles.-(1)Every seizure made in pursuance of the provisions of sub-section (1) of section 5 shall be made in the manner hereinafter provided in these rules.

(2) The authorized officer seizing any advertisements or articles under sub-section (1) of section 5 shall prepare a list of such advertisements or articles containing such details relating to the description, quality, quantity, mark, number and other particulars thereof as he may consider relevant to the identity of such advertisements or articles in any proceeding under the Act, in the Form annexed to these rules.

(3) The authorized officer shall pack and seal such advertisements or articles in the manner provided in rule 4 and shall deliver a copy of the list so prepared to the person from whom such advertisements or articles are seized.

(4) The advertisements or articles so seized shall be marked with a distinguishing number and shall also be signed by the authorized officer, the person from whom such advertisements or articles have been seized and two respectable inhabitants of the locality. If it is not possible to mark any such advertisement or article, the marking may be done on the packaging or in any other manner which the authorised officer thinks proper.

4. Manner of packing and dealing with advertisements or articles seized.-(1) The advertisements or articles seized shall be packed in adequately strong paper, cloth or in any other packing material in such a way that the advertisements or articles may not be tampered with and the ends of the paper, cloth or other packing material shall be neatly folded and affixed by means of gum or other adhesive or stitched in or tied.

(2) The package shall be further secured by means of strong twine or thread and the twine or thread shall be fastened on the package by means of sealing wax on which there shall be at least four distinct and clear impressions of the seal of the authorised officer of which one shall be on the top of the package, one at the bottom and the other two at the body of the package and knots of the twine or thread shall be covered by means of sealing wax bearing the impression of the seal of the authorized officer.

(3) Where necessary, the authorized officer shall put the advertisements or articles in a box, a container of a suitable material and size and seal it in the manner provided in sub-rule (2).

5. Manner of seizing and sealing advertisements or articles in certain cases.-Notwithstanding anything contained in rules 3 and 4, where the authorized officer is of the opinion that it is not possible to seize and seal any advertisement or article in the manner prescribed in rules 3 and 4 due to the size or the nature of such advertisement or article, he may take such steps as he thinks fit for the seizure and sealing of such advertisement or article without affecting the integrity, utility or saleable value thereof.

THE INDECENT REPRESENTATION OF WOMEN (PROHIBITION) RULES, 1987

F O R M

( See rule 3(2) )

List of Advertisements or Articles Seized

To

(Name and address of the person from whom the advertisement(s) or article(s) are seized)

………………………………………………………………………………………… …………………………………………………………………………………………

The advertisement(s), article(s) detailed below has/have this day been seized by me under sub-section (1) of section 5 of the Indecent Representation of women (Prohibition) Act, 1986 (60 of 1986), from the premises……………………….situated at …………………………..

Details of advertisement(s), article(s) seized:

Place……… ………………

(Authorised Officer)

(Seal) Area…………

THE NATIONAL COMMISSION FOR WOMEN ACT, 1990

November 20th, 2011 Comments off
THE NATIONAL COMMISSION FOR WOMEN ACT, 1990
An Act to constitute a National Commission for Women and to provide for matters connected therewith or incidental thereto.
Be it enacted by Parliament in the Forty-first Year of the Republic of India as follows:-
CHAPTER I
PRELIMINARY
1. Short title, extent and commencement.-(I) This Act may be called the National Commission for Women Act, 1990.
(2) It extends to the whole of India except the State of Jammu and Kashmir.

(3) It shall come into force on such date’ as the Central Government may, by notification in the Official
Gazette, appoint.
2. Definitions.-In this Act, unless the context otherwise requires,-

(a) “Commission” means the National Commission for Women constituted under section 3;
(b) “Member” means a Member of the Commission and includes the Member-Secretary;
(c) “prescribed” means prescribed by rules made under this Act.
CHAPTER II

The National Commission For Women

3. Constitution of the National Commission for Women.-(1) The Central Government shall constitute a body to be known as the National Commission for Women to exercise the powers conferred on, and to perform the functions assigned to, it under this Act.

(2) The Commission shall consist of-
(a) a Chairperson, committed to the cause of women, to be nominated by the Central Government;
(b) five Members to be nominated by the Central Government from amongst persons of ability, integrity and standing who have had experience in law or legislation, trade unionism, management of an industry or Organisation committed to increasing the employment potential Of women, women’s voluntary organisations (including women activists), administration, economic development, health, education or social welfare :
Provided that at least one Member each shall be from amongst persons belonging to the Scheduled Castes and Scheduled Tribes respectively;
(c) a Member-Secretary to be nominated by the Central Government, who shall be-

(i) an expert in the field of management, organisational structure or sociological movement, or
(ii) an officer who is a member of a civil service of the Union or of an all-India service or holds a civil post under the Union with appropriate experience.

4. Term of office and conditions of service of Chairperson and Members.-(1) The Chairperson and every Member shall hold office for such period, not exceeding three years, as may be specified by the Cent Government in this behalf.
(2) The Chairperson or a Member (other than the Member-Secretary who is a member of a civil service the Union or of an all-India service or holds a civil post under the Union) may, by writing and addressed to the Central Government, resign from the office of Chairperson or, as the case may be, of the Member at any time.

(3) The Central Government shall remove a person from the office of Chairperson or a Member referred in sub-section (2) if that person-

(a) becomes an undischarged insolvent;
(b) gets convicted and sentenced to imprisonment for an offence which in the opinion of the Central Government involves moral turpitude;

(c) becomes of unsound mind and stands so declared by a competent court;

(d) refuses to act or becomes incapable of acting;

(e) is, without obtaining leave of absence from the Commission, absent from three consecutive meetings of the Commission; or

(f) in the opinion of the Central Government has so abused the position of Chairperson or Member a to render that person’s continuance in office detrimental to the public interest;

Provided that no person shall be removed under this clause until that person has been given a reasonable opportunity of being heard in the matter.

(4) A vacancy caused under sub-section (2) or otherwise shall be filled by fresh nomination.
(5) The salaries and allowances payable to, and the other terms and conditions of service of, the Chairperson and Members shall be such as may be prescribed.’

5. Officers and other employees of the Commission.-(l ) The Central Government shall provide the Commission with such officers and employees as may be necessary for the efficient performance of the function of the Commission under this Act.

(2) The salaries and allowances payable to, and the other terms and conditions of service of, the officer and other employees appointed for the purpose of the Commission shall be such as may be prescribed

6. Salaries and allowances to be paid out of grants.- The salaries and allowances payable to the Chairperson and Members and the administrative expenses, including salaries, allowances and pensions payable t( the officers and other employees referred to in section 5, shall be paid out of the grants referred to the sub-section (1) of section 11.

7. Vacancies, etc., not to invalidate proceedings of the Commission. -No act or proceeding of the Commissioner shall be questioned or shall be invalid on the ground merely of the existence of any vacancy or defect in the constitution of the Commission.

8. Committees of the Commission.-(l) The Commissioner may appoint such committees as may be necessary for dealing with such special issues as may be taken up by the Commission from time to time.

(2) The Commission shall have the power to co-opt as members of any committee appointed under sub- section (1) such number of persons, who are not Members of the Commission, as it may think fit and the persons so co-opted shall have the right to attend the meetings of the committee and take part in its proceedings but shall not have the right to vote

(3) The persons so co-opted shall be entitled to receive such allowances for attending the meetings of the committee as may be prescribed.’

9. Procedure to be regulated by the Commission.-(1 ) The Commission or a committee thereof shall meet as and when necessary and shall meet at such time and place as the Chairperson may think fit.

(2) The Commission shall regulate its own procedure and the procedure of the Committees thereof.

(3) All orders and decisions of the Commission shall be authenticated by the Member-Secretary or any other officer of the Commission duly authorised by the Member-Secretary in this behalf.

CHAPTER III
FUNCTIONS OF THE COMMISSION
10. Functions of the Commission.-(1) The Commission shall perform all or any of the following functions, namely ;-

(a) investigate and examine all matters relating to the safeguards provided for women under the Constitution and other laws;
(b) present to the Central Government, annually and at such other times as the Commission may deem fit, reports upon the working of those safeguards;

(c) make in such reports recommendations for the effective implementation of those safeguards for improving the conditions of women by the Union or any State;

(d) review, from time to time, the existing provisions of the Constitution and other laws affecting women and recommend amendments thereto so as to suggest remedial legislative measures to meet any lacunae, inadequacies or shortcomings in such legislations;

(e) take up the cases of violation of the provisions of the Constitution and of other laws relating to women with the appropriate authorities;

(f) look into complaints and take sue moto notice of matters relating to (i) deprivation of women’s rights;

(ii) non-implementation of laws enacted to provide protection to women and also to achieve the objective of equality and development;
(iii) non-compliance of policy decisions, guidelines or instructions aimed at mitigating hardships and ensuring welfare and providing relief to women, and take up the issues arising out of such matters with appropriate authorities;

(g) call for special studies or investigations into specific problems or situations arising out of discrimination and atrocities against women and identify the constraints so as to recommend strategies for their removal;
(h) undertake promotional and educational research so as to suggest ways of ensuring due representation of women in all-spheres and identify factors responsible for impeding their advancement, such as, lack of access to housing and basic services, inadequate support services and technologies for reducing drudgery and occupational health hazards and for increasing their productivity;

(i) participate and advise on the planning process of socioeconomic development of women;

(j) evaluate the progress of the development of women under the Union and any State;

(k) inspect or cause to be inspected a jail, remand home, women’s institution or other place of custody where women are kept as prisoners or otherwise, and take up with the concerned authorities for remedial action, if found necessary;

(l) fund litigation involving issues affecting a large body of women;

(m) make periodical reports to the Government on any matter pertaining to women and in particular various difficulties under which women tail;

(n) any other matter which may be referred to it by Central Government.

(2) The Central Government shall cause all the reports referred to in clause (b) of sub-section (1) to be laid before each House of Parliament along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the Union and the reasons for the non-acceptance, if any, of any of such recommendations.
(3) Where any such report or any part thereof relates to any matter with which any State Government is concerned, the Commission shall forward a copy of such report or part to such State Government who shall cause it to be laid before the Legislature of the State along with a memorandum explaining the action taken or proposed to be taken on the recommendations relating to the State and the reasons for the non-acceptance, if any, of any of such recommendations.

(4) The Commission shall, while investigating any matter referred to in clause (a) or sub-clause (i) of clause (i) of sub-section (I), have all the powers of a civil court trying a suit and, in particular in respect of the following matters, namely :-

(a) summoning and enforcing the attendance of any person from any part of India and examining him on oath;
(b) requiring the discovery and production of any document;

(c) receiving evidence on affidavits;

(d) requisitioning any public record or copy thereof from any court or office;
(e) issuing commissions for the examination of witnesses and documents; and
(f) any other matter which may be prescribed.

CHAPTER IV
FINANCE, ACCOUNTS AND AUDIT
11. Grants by the Central Government.-(l) The Central Government shall, after due appropriation made by Parliament by law in this behalf, pay to the Commission by way of grants such sums of money as the Central Government may think fit for being utilised for the purposes of this Act.
(2) The Commission may spend such sums as it thinks fit for performing the functions under this Act, and such sums shall be treated as expenditure payable out of the grants referred to in sub-section (1).

12. Accounts and audit. – (1) The Commission shall maintain proper accounts and other relevant records and prepare an annual statement of accounts in such form as may be prescribed by the Central Government in consultation with the Comptroller and Auditor-General of India.

(2) The accounts of the Commission shall be audited by the Comptroller and Auditor-General at such
intervals as may be specified by him and any expenditure incurred in connection with such audit shall be payable by the Commission to the Comptroller and Auditor-General.
(3) The Comptroller and Auditor-General and any person appointed by him in connection with the audit of the accounts of the Commission under this Act shall have the same rights and privileges and the authority in connection with such audit as the Comptroller and Auditor-General generally has in connection with the audit of Government accounts and, in particular, shall have the right to demand the production of books, accounts, connected vouchers and other documents and papers and to inspect any of the offices of the Commission.

(4) The accounts of the Commission, as certified by the Comptroller and Auditor-General or any other person appointed by him in this behalf, together with the audit report thereon shall be forwarded annually to the Central Government by the Commission.

13. Annual report.-The Commission shall prepare in such form and at such time, for each financial year, as may be prescribed, its annual report, giving a full account of its activities during the previous financial year and forward a copy thereof to the Central Government.

14. Annual report and audit report to be laid before Parliament. The Central Government shall cause the annual report together with a memorandum of action taken on the recommendations contained therein, in so far as they relate to the Central Government, and the reasons for the non-acceptance, if any, of any of such recommendations and the audit report to be laid as soon as may be after the reports are received, before each House of Parliament.
CHAPTER V
MISCELLANEOUS

15. Chairperson, Members and staff of the Commission to be public servants.-The Chairperson, the Members, officers and other employees of the Commission shall be deemed to be public servants within the meaning of section 21 of the Indian Penal Code (45 of 1860).
16. Central Government to consult Commission.-The Central Government shall consult the Commission on all major policy matters affecting women.

17. Power to make rules. (1) The Central Government may, by notification in the Official Gazette, make rules for carrying out the provisions of this Act

(2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely -

(a) salaries and allowances payable to, and the other terms and conditions of service of, the Chair- person and Members under sub-section (5) of section 4 and of officers and other employees under sub-section (2) of section 5;
(b) allowances for attending the meetings of the committee by the co-opted persons under sub-section (3) of section 8;

(c) other matters under clause (f) of sub-section (4) of section IO;

(d) the form in which the annual statement of accounts shall be maintained under sub-section (1 ) of section 12;

(e) the form in, and the time at, which the annual report shall be prepared under section 13;

(f) any other matter which is required to be, or may be, prescribed.

(3) Every rule made under this Act shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session, for a total period of thirty days which may be comprised in one session or in two or more successive sessions, and if, before the expiry of the session immediately following the session or successive sessions aforesaid, both Houses agree in making any modification in the rule or both Houses agree that the rule should not be made, the rule shall thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that any such modification or annulment shall be without prejudice to the validity of anything previously done under that rule.

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