SOLVED PAPER GCL JUNE 2011 - CS NOTES

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2011 ‐ June [7] (a) Alok was running a school at a certain place. Bimal started another school near the school of Alok. As a result of this, most of the students of Alok's school left his school and joined Bimal's school. Due to competition, Alok had to reduce the fees by ` 40 per student per quarter thereby suffering huge monetary loss. Alok instituted a suit against Bimal in the court for claiming compensation. Is the suit instituted by Alok maintainable (6 marks) Ans. In the law of torts there are two types of doctrines under the law of torts – Injuria sine damnum, and damnum sine injuria. There are many acts which though harmful are not wrongful and give no right of action to him who suffers from their effects. Damage so done and suffered is called Damnum Sine Injuria or damage without injury. Damage without breach of a legal right will not constitute a tort. Such examples would constitute injury but not damage, as per the rules of torts. They are instances of damage suffered from justifiable acts. An act or omission committed with lawful justification or excuse will not be a cause of action though it results in harm to another as a combination in furtherance of trade interest or lawful user of one’s own premises. In Gloucester Grammar School Master Case, it had been held that the plaintiff school master had no right to complain of the opening of a new school. The damage suffered was mere damnum absque/sine injuria or damage without injury. Hence, in this case, the case is not maintainable, as in opening the school; Bimal is merely exercising his legal right. 2011 ‐ June [7] (b) Ashok intentionally and falsely leads Bikram to believe that certain land belongs to Ashok, and thereby induces Bikram to buy and pay for it. Afterwards, the land becomes the property of Ashok, and Ashok seeks to set aside the sale on the ground that at the time of the sale he had no title to the property. Can he be allowed to prove his want of title (5 marks) Ans. Where a person fraudulently or erroneously represents that he is authorized 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 authorized 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. Moreover, the Doctrine of feeding the grant by estoppels applies on this case, which says that if a person leads another to believe and to act on any fact intentionally provided by him, he cannot later on retract his statement and aver. Hence, in this case, Ashok will not be allowed to prove his want of title. Also, when he once the land becomes Ashok’s property, he will have to transfer it to Bikram , if Bikram has not cancelled the contract by then. 2011 ‐ June [7] (c) A document was executed by several persons at different times. The person in whose favour such execution was made, presented the document for re‐ registration after expiry of three months. Can such document be registered and if so, within what period (5 marks) Ans. Under the Registration Act, 1908, if a document is executed by several persons at different times, it may be presented for registration within 4 months from date of each execution [section 24]. Moreover, regarding re‐registration, if a person finds that a document has been filed for registration bya person who is not empowered to do so, he can present the document for re‐registration within 4 months from the date he became aware of the fact that registration of document is invalid [section 23A]. In this case, the document was executed by several persons at different times. The person in whose favour such execution was made presented the document for re‐ registration after expiry of three
months. Hence, it can be registered within a period of 4 months from the date he became aware of the fact that registration of document is invalid. 2011 ‐ June [8] (a) A mill owner employed an independent contractor to construct a reservoir on his land to provide water for his mill. There were old disused mining shafts under the site of the reservoir, which the contractor failed to observe because they were filled with soil. Therefore, the contractor did not block them. When water was filled in the reservoir, it burst through the shafts and flooded the plaintiff's coal mines on the adjoining land. Is the mill owner liable to compensate for loss or damage caused to the plaintiff Give reasons. (6 marks) Ans. This is as per the case of Rylands v. Fletcher (1868)It follows the Doctrine of STRICT LIABILITY, which states that an occupier of land who brings onto it anything likely to do damage if it escapes, and keeps that thing on the land, will be liable for any damage caused by an escape. In this case, the defendant occupied land near to where the plaintiff operated a coal mine. The coal seams extended under the defendant's land. These had been previously worked but the tunnels and shafts had been cut off and forgotten about. The defendant obtained approval to construct a reservoir to provide water for his mill. The water from this reservoir permeated the old coal shafts beneath and flooded the plaintiff's mine. The decision was that the person who for his own purpose brings on his lands anything likely to do mischief if it escapes, must keep it at his peril and is prima facie answerable for all the damage which is the natural consequence of its escape. Liability under this rule is strict and it is no defence that the thing escaped without the defendant’s wilful act, default or neglect or even that he had no knowledge of its existence. The only defences available to such an escape would be vis majeur (natural reasons beyond his control) or to show that it was due to some fault of the plaintiff (or a third person). 2011 ‐ June [8] (b) There was a partition of property between a Hindu father and his five sons. The deed provided that if any one of his sons wanted to sell his share, he shall sell it to one of his brothers only and not to any stranger. The consideration for that share shall be ` 1,000 only. Are these conditions valid Give reasons. (5 marks) Ans. Section 10 of the Transfer of Property Act, 1882 says that 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 woman (not being a Hindu, Muhammadan or Buddhist). This is known as absolute restraint. (Trichinopoly Varthaga Sangam vs T.N. Shanmughasundaram, 1939) In this case, the deed of partition provided that if any one of the sons wanted to sell his share, he shall sell it to one of his brothers only and not to any stranger. The consideration for that share shall be Rupees 1,000 only. This is absolute restraint. Hence, these conditions are not valid. 2011 ‐ June[8] (c) Ram and Shyam entered into an agreement to refer a dispute relating to genuineness of a will to an arbitral tribunal. Inspite of this, Shyam commenced proceedings relating to this dispute in the district court of competent jurisdiction. Ram filed an application for stay of legal proceedings under the Arbitration and Conciliation Act, 1996. Will Ram succeed Explain. (5 marks) Ans. The Arbitration and Conciliation Act, 1996 provides for settlement of all private rights. However, certain matters are excluded from arbitration. Generally speaking all disputes of a civil nature can be referred to Arbitration e.g. breach of a contract, question of assignment or right to hold premises etc. However, certain disputes where the
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SOLVED PAPER GCL JUNE 2011 - CS NOTES

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