Drafting Pleading and Conveyance

1.1 WRITS

(1) Habeas Corpus

Habeas Corpus is a latin term which means ‘you may have the body’. The main objective of the writ is to give quick
and complete remedy to the person who is unlawfully detained either in prison or any private custody. The writ is
produced in the form of an order calling upon a person by whom another person is detained to bring back that
person before court and tell the court by what authority he has been detained? If the cause shows that the detained
person has been detained illegally, the Court will order that the person be released immediately.

Kanu Sanyal v District Magistrate, Darjeeling

The Supreme Court held that while dealing with the application of writ of habeas corpus, production of body or
person alleged to be unlawfully detained was not essential. Justice Bhagvati held that in writ of habeas corpus under
Article 32, the production of body of person detained before the court was necessary for hearing and disposing of
writ petition by the Court.

(2) Mandamus

The word ‘Mandamus’ means ‘the order’. The writ of Mandamus is an order of Supreme Court commanding a
person or public authority to do or to forbid to do something in the nature of public duty or in certain case of
statutory duty.

Example: A licensing officer is under the duty to issue license to an applicant who fulfills all the conditions laid down
for the issue of such license. But despite the fulfillment of such conditions, if the officer or the authority concerned
refuses or fails to issue the license, the aggrieved person has a right to seek the remedy to Mandamus.

(3) Prohibition

A writ of prohibition is issued primarily to prevent an inferior court or Tribunal from exceeding its jurisdiction or
acting contrary to the rules of natural justice. It is issued by superior court to inferior court for the purpose of
preventing inferior court from upsurfing a jurisdiction with which it was not legally vested or in other words to
compel the inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in following cases:

a) Excess of jurisdiction
b) Absence of jurisdiction
c) Acting contrary to rules of natural justice

(4) Certorari

A writ of certiorari is issued by a superior court to lower court or a body exercising a judicial or quasi-judicial function
to remove a suit from such court or body and adjudicate upon the validity of the proceedings. It may be used before
the trial to prevent an excess or abuse of jurisdiction and remove the case for trial of higher court. It is invoked also
after the trial to quash an order which has been made without jurisdiction or in violation of rules of natural justice. It
does not lie to remove merely ministerial acts or cancel executive and administrative acts.

(5) Quo warranto

‘Quo’ means what is your authority? By this writ, a holder of an office is called upon to show to the court under what
authority he holds the public body. The objective of the writ is to prevent a person to hold an office which he is not
legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no legal valid title to it, the
Court may pass an order preventing the holder to continue in the office and may declare the office invalid, vacant.
1.2 LEGAL NOTICE

A legal notice is a formal written communication between the parties. Through a legal notice, the sender notifies the
recipient about his intention of undertaking legal proceedings against the latter. A legal notice also helps in making
the receiving party aware of the grievances of the sender. It works as a last warning to the receiver to fulfil a certain
condition if he does not want a court battle.

It is used in a wide variety of situations:

 In Consumer Forums: In case, a faulty product or service is provided to a person he or she can send a legal
notice to the concerned person and ask him to rectify the deficiencies.
 Disputes related to property such as partition, eviction or issues relating to possession of the property.
 Loan Defaulters: Under the Securitisation and Reconstruction of Financial Assets and Enforcement of
Securities Interest Act, 2002 (SARFAESI Act), the debt recovery proceedings begin by sending a legal notice to
the defaulters.
 Cases under the Negotiable Instruments Act: In case of dishonour of cheque, the aggrieved can send a legal
notice for recovery of payment.
 Money Recovery Cases: The first step in money recovery cases is sending a legal notice to the concerned
person.
 Employee and Employer/Company: If the employer in any way deprives the employees of their salary, then
the employee can send a legal notice to the employer.

It is a tool to save time and cost of litigation as it opens the door for the parties to settle the matter through
negotiation, mediation or arbitration.

1.3 GENERAL POWER OF ATTORNEY

The general power of attorney is a broad mandate that gives an agent a lot of power to handle the affairs of a
principal. The agent or the person designated to act on behalf of the principal is charged with handling several tasks.
The tasks include buying or disposing of real estate or even entering into contractual relationships on the principal’s
behalf. NRI’s (Non-resident Indians) who cannot be physically present in India to manage their property or carry out
sale or purchase transactions of their properties, mostly use it.

1.4 SPECIAL POWER OF ATTORNEY

A Special power of attorney is given to the agent for a specific purpose and time. An agent can be engaged in legal
business on behalf of the grantor until the principal dies. Once any of the events happens i.e. death of the principal
or if he is mentally incompetent to act, the power of attorney ends. The power of attorney is used in cases where the
principal is disabled or because of his illness or is not present to sign necessary legal documents for financial
transactions. In a special Power of attorney only a specific power is given by the executor. The special power of
attorney holder cannot use the power beyond the attorney.

1.5 PURPOSE OF AGREEMENT TO SELL

Section 54, The Transfer of Property Act, 1882 has defined an agreement to sell as ‘A contract for the sale of
immovable property stating that the sale of the concerned property will take place as per the terms mutually agreed
upon by both parties.’ It has legal sanctity and states the seller’s intention to sell the property and the buyer’s
intention to purchase it in the future. The transaction concludes basis the pre-established terms and conditions
between the parties.

1.6 PURPOSE OF APPLICATION UNDER SECTION 5 OF LIMITATION ACT

According to Section 5 of the Limitation Act, 1963, any appeal or application may be accepted even after the
limitation period for the same is over, if the appellant/applicant assures the court that he had a sufficient cause for
not being able to file the appeal/application during the limitation period. If the court is satisfied, such delay in filing
the appeal/application can be condoned irrespective of the party being a state or a private party.
1.7 DIFFERENCE BETWEEN GIFT AND SALE

Aspects Sale Deed Gift Deed

A monetary exchange or other Nothing is exchanged to transfer the

Monetary exchange
exchange is involved in a sale deed property in a gift deed

Both the buyer and seller have to abide

No legal obligations exist on the part of
Legal obligations by the terms or legal obligations of the
the recipient
other

Requires registration with the relevant

Registration and Requires registration with the relevant
authority and may be subject to stamp
Stamp Duty fee authority and is subject to stamp duty
duty

1.8 ESSENTIALS OF COMPROMISE OF SUIT

1. Jurisdiction: It is to be kept in mind that the compromise must be recorded in the court where it was
pending before the compromise. In case of a suit, it can be recorded in the trial court whereas in case of an
appeal/revision, it can be recorded at appellate court or revisional court thereof. In the case of execution of
the same, it must be recorded by the executing court itself.

2. In case of a Minor: Another such essential provision regarding the compromise in a suit, in which a party to
the suit is a minor. In such cases, it is provided that no next friend or guardian of minors shall be allowed to
enter into any agreement or compromise without the leave of court with reference to the suit.

3. Power of a Pleader: A suit powered by a pleader on behalf of his client, can be counted as the pleader holds
the same position as his client. The pleader has the full authority to enter into a compromise on behalf of his
client. However, the court before granting any leave, should serve notice to the persons interested.

4. Applicability: Though the compromise observed by the court is called a decree but it shall have not the same
effect as a decree. Hence the principle of Res-Judicata shall not be applicable because the acceptance by the
court of something to which the parties had agreed upon. It is not the mere decision of the court.

5. Execution: As we earlier discussed, the compromise decree is not an actual decree, but the process of
execution of such decree is similar to the execution of actual decree. It is always to be advised that the
compromise which is unlawful or passed by the court having no jurisdiction to pass the same is always
counted as a nullity and its validity can be challenged even in the time of execution.

6. Rule 3B: No agreement or compromise in a representative suit can be entered into without the leave of the
court. Before granting such leave, the court shall comply a notice to the interested party.

7. Bar to Suit- Rule-3A: no suit can be filed to set aside a compromise decree on basis of its legality and
lawfulness.

1.9 AFFIDAVIT

As per Merriam Webster, the term ‘affidavit’ stands for a sworn statement which is made in writing and necessarily
under an oath or affirmation before an authorised officer or magistrate.

In India, the provisions of the Code of Civil Procedure, 1908, on the subject of affidavits, are contained in Section
139 and Order XIX of the Code.

The following are the essential features of an affidavit:

 a) An affidavit must be in writing.
b) It needs to be a declaration by the deponent.
c) The facts mentioned in an affidavit must be true to the best knowledge of the deponent.
d) In order to make it valid, it needs to be sworn in under oath before an authorised officer or magistrate.
e) An affidavit is never made on behalf of some other person.

Purpose of affidavit

 The purpose of an affidavit is to formally legitimize a claim. These legal documents are used in conjunction
with witness statements or related evidence in a dispute.
 Affidavits are crucial pieces of information when it comes to settling a dispute. When used properly,
affidavits can sway a court decision.

AFFIDAVIT OF BIRTH OF [APPLICANT NAME]

I, [Affiant Name], a citizen of [Country of Citizenship] and currently residing in [City, Country of Residence] do hereby
state that the following is true and accurate to the best of my knowledge:

1. I am the [relationship] of [Applicant Name].

2. I was born on [Affiant Birthdate] in [City, Country], and I know of [his/her] birth because of my relationship to
[him/her].

3. In [Month of Year Applicant was born], I was living in [City, Country].

4. [Applicant Name] was born at [Place of Birth (i.e. name of hospital, home, etc.)] located in [City, Country] on
[Applicant Birthdate].

5. [Applicant Name] was born to [Father’s Name] and [Mother’s Name].

6. I know that [Applicant Name] was born on this date because [explanation of how affiant knows of the birth].

[Affiant Name] [Affiant Signature]

1.10 REFERENCE TO ARBITRATION

Section 8 of Arbitration and Conciliation Act states reference to Arbitration by a Judicial Authority before which
matter is brought that is originally covered under Arbitration. Either Party to the Arbitration Agreement or claiming
under him, upto submission of 1st statement on substance of dispute proves existence of a valid Arbitration
Agreement. Judicial Authority on being satisfied of such presence of Agreement on same subject is bound to send
the other party for Arbitration. Arbitration may be initiated, continue and Award passed even while such application
is pending before Judicial Authority.

1.11 DEED OF ARBITRATION

Arbitration Deed means the arbitration deed entered into between the Parties and the other parties thereto on the
same date as this Deed. The “arbitration deed” is a type of arbitration agreement.

1.12 COMPOUNDING OF OFFENCE UNDER SECTION 320 CRPC

To compound means “to settle a matter by a money payment, in lieu of other liability.” In criminal law, the victim
has the capacity to compound the offence. Section 320 of the Code of Criminal Procedure, 1973, provides legal
provisions for the compounding of offences. The purpose of Section 320 of the Code is to promote amicable
relations between the parties in order to restore peace.
Surendra Nath Mohanty v. the State of Orissa (1999)

In the case of Surendra Nath Mohanty v. the State of Orissa, a three-judge bench of the Supreme Court said that “a
full mechanism is available under Section 320 of the CrPC, 1973 for the compounding of the charges mentioned
under the IPC.”

 Section 320(1) states that the crimes listed in the table given in Section 320 can be settled by the people
listed in the third column of the list.
 Furthermore, Section 320(2) states that the crimes specified in the list may be settled by the complainant
with the court’s consent.
 In contrast, Section 320(9) expressly states that “no action shall be settled unless as permitted by Section
320 of the CrPC.”

According to the aforementioned statutory mandate, only the acts listed in tables 1 and 2 as specified above can be
compounded, whereas any other offences punishable under the IPC cannot be settled.

The result of compounding an offence is essentially the dismissal of the accusations made against the accused. It
makes no difference whether the FIR was lodged or whether the trial had begun; as long as the offence was
compounded with the court’s authorization, the offender is acquitted of all accusations.

1.13 TYPES OF JURISDICTION

 Subject Matter Jurisdiction: It can try cases of a particular type and relate to a particular subject.
 Territorial Jurisdiction: It can try cases within its geographical limit, and not beyond the territory.
 Pecuniary Jurisdiction: Cases related to money matters, suits of monetary value.
 Appellate Jurisdiction: This is the authority of a court to hear appeals or review a case that has already been
decided by a lower court. The Supreme Court and the High Courts have appellate jurisdiction to hear cases
that were decided by a lower court.