Odisha Judiciary — Prelims 2014

Correct answer: B

The Constitution was enacted and adopted by the Constituent Assembly on 26th November, 1949; it came into force on 26th January, 1950. The Preamble itself records 'this 26th day of November, 1949'.

Correct answer: D

The Constitution (97th Amendment) Act, 2011 added the words 'or co-operative societies' after 'unions' in Art. 19(1)(c), making formation of co-operative societies a fundamental right.

Correct answer: A

In Aruna Ramachandra Shanbaug v. Union of India (2011) the Supreme Court permitted passive euthanasia subject to guidelines/High Court approval.

Correct answer: C

Jaya Bachchan v. Union of India (2006) dealt with disqualification of an MP for holding an office of profit (Art. 102/191) — she was disqualified as Chairperson of U.P. Film Development Council.

Correct answer: A

Under Art. 3, new States are formed/areas altered by a law of Parliament (an ordinary law passed by simple majority, on Presidential recommendation), not by constitutional amendment under Art. 368.

Correct answer: C

Art. 123 confers on the President the power to promulgate ordinances when Parliament is not in session. (Art. 213 is the Governor's analogous power.)

Correct answer: A

The doctrine of pith and substance is used to interpret statutes and resolve conflicts of legislative competence between Union and State legislatures operating in the same field; the true nature/substance of the law determines its validity.

Correct answer: D

Art. 356 provides for President's Rule on failure of the constitutional machinery in a State. (352 = National Emergency, 360 = Financial Emergency.)

Correct answer: B

Art. 317 governs removal and suspension of a member of a Public Service Commission (removal by the President on a reference to the Supreme Court). Art. 316 deals with appointment.

Correct answer: B

Under Art. 233, district judges are appointed by the Governor of the State in consultation with the High Court exercising jurisdiction in that State.

Correct answer: C

Section 10 CPC (res sub judice) bars the trial of a subsequently instituted suit where the matter in issue is directly and substantially in issue in a previously instituted pending suit between the same parties. (S.11 is res judicata.)

Correct answer: B

Settling one debt against a mutual debt as a statutory defence is set-off (Order VIII Rule 6 CPC).

Correct answer: C

Attachment before judgment (Order XXXVIII CPC) does not affect ownership or the right to sue; it restrains the defendant's power to alienate/transfer the property pending the suit.

Correct answer: C

The three settled foundations for an order of injunction are: a prima facie case, irreparable injury, and balance of convenience (Dalpat Kumar v. Prahlad Singh).

Correct answer: B

Reference (Section 113 / Order XLVI CPC) enables a subordinate court to refer a question to the High Court for its opinion to avoid an irremediable error in non-appealable cases.

Correct answer: A

Only proposition (i) is correctly stated — a legal set-off requires court-fee whereas equitable set-off does not. The other three propositions invert the correct rules (e.g. legal set-off requires an ascertained sum, equitable set-off arises from the same transaction), so only (i) is correct.

Correct answer: C

A series of written questions administered by one party to the opposite party to obtain information on facts are interrogatories (Order XI CPC).

Correct answer: B

A representative suit (Order I Rule 8 CPC) is one filed by or against persons on behalf of themselves and others having the same interest.

Correct answer: D

A person appointed by the court to protect, preserve and manage property during litigation is a receiver (Order XL CPC).

Correct answer: B

Where a person (here the railway as consignee) has no interest except charges and rival claims are made by others, he may file an interpleader suit (Section 88 / Order XXXV CPC).

Correct answer: A

The object of investigation is to collect evidence that aids the court in arriving at the truth; investigation is for the purpose of the trial, not merely arrest or punishment.

Correct answer: D

Under Section 41 CrPC a police officer may arrest without warrant in all the listed situations — a person concerned in a cognizable offence, a proclaimed offender, and a reasonably suspected deserter from the armed forces — so all of the above is correct.

Correct answer: C

Section 37 CrPC obliges every person to assist a Magistrate or police officer in (a) taking/preventing escape of a person liable to arrest, (b) prevention/suppression of a breach of peace, and (c) prevention of injury to railway, canal, telegraph or public property — i.e. in all the above cases.

Correct answer: A

Under Section 9 CrPC, the State Government shall establish a Court of Session for every sessions division.

Correct answer: C

Best guess State of Karnataka v. K. Yarappa Reddy (1999) 8 SCC 715, the authority most commonly cited for the proposition that an FIR is not substantive evidence and is usable only to contradict/corroborate its maker. Flagged because the precise proposition is settled law repeated across several listed cases (Yarappa Reddy, Sheelam Ramesh, Ravishwar Manjhi), so the intended key is not unambiguous.

Correct answer: B

Section 164A CrPC deals with the medical examination of the victim of rape (inserted by the 2005 amendment). Section 53A covers examination of the accused.

Correct answer: B

Under Section 216 CrPC, after alteration/addition of a charge, the prosecutor and accused may recall/re-examine witnesses already examined, unless the court records in writing that the purpose is vexation, delay or defeating justice (proviso to S.217).

Correct answer: C

Section 223 CrPC lists all four categories as persons who may be charged and tried jointly, so 'All of the above' is correct.

Correct answer: C

Under Section 320 CrPC (Table 1), causing miscarriage (S.312 IPC) is compoundable by the woman to whom the miscarriage is caused, with the court's permission as required here.

Correct answer: B

Section 407 CrPC confers on the High Court the power to transfer cases and appeals. Section 406 is the Supreme Court's transfer power.

Correct answer: D

All three propositions correctly state the settled law on the confession of a co-accused under S.30 Evidence Act: it is not 'evidence', can only lend additional assurance to other evidence, and is weaker than an approver's testimony (Kashmira Singh v. State of M.P.).

Correct answer: C

The best-evidence rule (original document) is excepted by the Bankers' Books Evidence Act, which allows certified copies of banker's books to be received in evidence in lieu of originals.

Correct answer: A

Reliability of multiple dying declarations was discussed in Vimal v. State of Maharashtra, 2006 AIR SCW 5953.

Correct answer: B

The classic formulation of 'reasonable doubt' as a doubt a rational/sensible man may fairly entertain is attributed to Lord Halsbury. Flagged: attribution of the exact quotation is text-dependent and not from a single settled authority.

Correct answer: A

The holding that a DNA test cannot rebut the conclusive presumption of legitimacy (S.112 Evidence Act), avoidable only by proving non-access (negative proof), is from Shaik Fakruddin v. Shaik Mohammed Hasan, AIR 2006 AP 48.

Correct answer: A

The rule that an accomplice is unworthy of credit unless corroborated in material particulars (S.114 illustration (b) read with S.133 Evidence Act) is a presumption of fact, which the court may but is not bound to draw.

Correct answer: C

Handwriting may be proved both by an expert (S.45 Evidence Act) and by a person acquainted with the handwriting (S.47 Evidence Act); hence both (a) and (b).

Correct answer: A

The observation that acquittal of a guilty person is preferred to conviction of an innocent person, requiring reasonable certainty before depriving lifelong liberty, was made in Rang Bahadur Singh v. State of U.P., AIR 2000 SC 1209.

Correct answer: B

Section 85B of the Evidence Act deals with the presumption as to electronic records and electronic signatures, including that a record with a security procedure applied is deemed a secure electronic record until verification.

Correct answer: B

Nivrutti Pandurang Kokate v. State of Maharashtra (AIR 2008 SC 1460) is a subsequent Supreme Court case that referred to the principles laid down in State of Maharashtra v. Praful B. Desai.

Correct answer: A

A public servant who knowingly disobeys a direction of law with intent/knowledge of causing injury commits the offence under Section 166 IPC, which uses this exact illustration.

Correct answer: A

Actus reus comprises conduct, the result of conduct, and the surrounding circumstances; a mere 'thought of conduct' (intention, mens rea) is not part of actus reus.

Correct answer: C

A statute may exclude mens rea (strict liability) in cases of public nuisance and matters of public interest/welfare; hence both.

Correct answer: A

Entering D's bedroom at night with intent to murder, when D is absent, makes A guilty of house-trespass (S.442/S.456 IPC); there can be no attempt to murder where the victim is not present.

Correct answer: C

Criminal conspiracy is defined in Section 120A IPC; Section 120B prescribes punishment.

Correct answer: D

Taking property by putting a person in fear of instant hurt (showing a knife) is robbery under Section 390 IPC; it is not dacoity as fewer than five persons are involved.

Correct answer: C

Robbery is either theft or extortion in aggravated form (S.390 IPC), and dacoity is robbery committed by five or more persons; hence dacoity can cover robbery based on both theft and extortion.

Correct answer: A

Where force or violence is used by any member of an unlawful assembly in prosecution of the common object, the offence of rioting is committed (Section 146 IPC).

Correct answer: B

Consent is no defence to causing death: S.88 IPC excepts grievous hurt done in good faith for benefit with consent, but consent never justifies intentionally causing death (S.300 Exception 5 only reduces, not absolves).

Correct answer: B

Sedition under Section 124A IPC turns on the intention (mens rea) to bring into hatred/contempt or excite disaffection; actual result (disorder) is not essential to the offence.

Correct answer: B

Section 25 of the Limitation Act, 1963 provides that all instruments are deemed to be made with reference to the Gregorian (English) calendar; the standard answer term used in the statute is the English calendar.

Correct answer: D

Section 3 of the Limitation Act, 1963 expressly applies to suits, appeals and applications, all of which are barred if instituted after the prescribed period; it does not exclude any of them, so 'None of the above'.

Correct answer: C

Under the Explanation to Section 3(2) of the Limitation Act, 1963, a claim by way of set-off and a counterclaim are both treated as separate suits for the purpose of limitation.

Correct answer: C

Section 29(2) read with Section 3 of the Limitation Act, 1963 makes Section 3 applicable to periods prescribed by any special or local law (subject to express exclusions).

Correct answer: A

A time-barred debt cannot found a fresh suit, but it may be pleaded as a defence by way of set-off; the remedy is barred while the right subsists, so it survives as a shield (set-off).

Correct answer: A

Section 4 of the Limitation Act, 1963 applies only when the court is closed for the whole of the day on which the limitation period expires; partial closure does not attract the section.

Correct answer: D

Section 6 of the Limitation Act, 1963 recognises minority, insanity and idiocy as legal disabilities extending the period of limitation, so 'All of the above'.

Correct answer: B

Under Section 18 of the Limitation Act, 1963, an acknowledgement is valid if made by the person under liability or by an agent duly authorised in that behalf.

Correct answer: C

Section 19 of the Limitation Act, 1963 requires that part-payment be evidenced by writing in the handwriting of, or in a writing signed by, the person making the payment, i.e. either (a) or (b).

Correct answer: C

Under Article 123 of the Limitation Act (Order IX Rule 13 CPC), an application to set aside an ex parte decree must be made within 30 days from the date of the decree, or where summons was not duly served, from when the applicant had knowledge of it; both (a) and (b).

Correct answer: A

Section 3 of the Transfer of Property Act, 1882 defines 'instrument' to mean a non-testamentary instrument; testamentary dispositions (wills) are governed by succession law, not the TPA.

Correct answer: D

Section 3 of the Transfer of Property Act, 1882 defines 'attached to the earth' as (i) rooted as trees/shrubs, (ii) embedded as walls/buildings, and (iii) attached to what is so embedded for beneficial enjoyment; so 'All of the above'.

Correct answer: C

The doctrine of election ('he who accepts a benefit under an instrument must adopt the whole of it') is contained in Section 35 of the Transfer of Property Act, 1882.

Correct answer: A

Section 3 of the Transfer of Property Act, 1882 defines 'actionable claim' as a claim to an unsecured debt (other than one secured by mortgage/hypothecation/pledge) or to a beneficial interest in movable property not in possession.

Correct answer: B

Under Section 13 of the Transfer of Property Act, 1882, a transfer for the benefit of an unborn person requires a prior interest in favour of a living person, and the unborn must take the absolute remaining interest; the essential requirement among the options is the prior interest.

Correct answer: D

Under Section 19 of the Transfer of Property Act, 1882, a vested interest is not defeated by the transferee's death before possession, is transferable and heritable, and accrues in the present though enjoyment may be postponed; so 'All of the above'.

Correct answer: C

Under the doctrine of lis pendens (Section 52, TPA), a transfer during pendency of a suit is neither void nor voidable; it is valid but binds the transferee to the result of the litigation.

Correct answer: A

Under Section 10 of the Transfer of Property Act, 1882, a condition absolutely restraining the transferee's enjoyment/alienation is void; a condition compelling the buyer to live in the property is such an invalid restraint and is void.

Correct answer: D

Partition is not a 'transfer of property' since it merely effects a division of pre-existing joint interests; sale, mortgage and lease are recognised transfers under Section 5 TPA.

Correct answer: C

Section 9 of the Transfer of Property Act, 1882 provides that a transfer may be made orally where writing is not expressly required by law; otherwise it must be by a registered instrument, so 'Both (a) and (b)'.

Correct answer: A

Under Section 4 of the Indian Contract Act, 1872, communication of acceptance is complete as against the proposer when the letter of acceptance is posted (out of the acceptor's power); the contract is concluded the moment the acceptance is posted.

Correct answer: A

Under Section 4 of the Indian Contract Act, 1872, communication of a revocation is complete as against the person making it when it is put into a course of transmission, i.e. when the telegram is dispatched.

Correct answer: A

Under Section 16(3) of the Indian Contract Act, 1872, where a party in a position to dominate the will of another enters into an unconscionable transaction, the burden of proving absence of undue influence lies on the dominant party.

Correct answer: D

Under Section 19 of the Indian Contract Act, 1872, a contract whose consent is caused by coercion, fraud or misrepresentation is voidable at the option of the party whose consent was so caused; bilateral mistake of fact makes the agreement void, not voidable.

Correct answer: A

An agreement to evade tax by concealing income is for an unlawful/fraudulent object under Section 23 of the Indian Contract Act, 1872, and is void; an arbitration clause embedded in a void agreement cannot save it, so the agreement is void.

Correct answer: A

An agreement excluding the jurisdiction of courts is void as against public policy under S.28 of the Indian Contract Act; though a sale-of-goodwill non-compete is saved by Exception 1 to S.27, the clause ousting court jurisdiction renders the agreement void. The clearly intended answer here is 'Void'.

Correct answer: D

Contracts contingent on an uncertain future event are governed by S.32 of the Indian Contract Act; performance is enforceable only when that event happens.

Correct answer: A

Under S.52 of the Indian Contract Act, where the order of performance of reciprocal promises is not expressly fixed, they shall be performed in the order which the nature of the transaction requires.

Correct answer: A

Under S.150 of the Indian Contract Act, a gratuitous bailor is liable to disclose faults known to him; but the proviso/second part makes a bailor for hire responsible for all faults whether or not he was aware. The phrasing 'awareness of all... the faults' points to 'The faults'.

Correct answer: D

Under S.212 of the Indian Contract Act, an agent is liable to make compensation to his principal for the direct consequences of his neglect, want of skill or misconduct — not for indirect or remote losses.

Correct answer: A

Per S.3(1)(a) of the Hindu Succession Act, 1956, one person is an agnate of another if the two are related by blood or adoption wholly through males.

Correct answer: B

S.8 of the Hindu Succession Act, 1956 lays down the general rules of succession in the case of a Hindu male dying intestate.

Correct answer: C

Under the Explanation to S.15 read with judicial interpretation, 'husband' in entry (a) of S.15(1) includes a husband of a subsisting marriage as well as a divorced husband (a person who was the husband). Hence both (a) and (b).

Correct answer: A

Under S.19(b) of the Hindu Succession Act, 1956, when two or more heirs succeed together, they take the property as tenants-in-common and not as joint tenants.

Correct answer: B

S.20 of the Hindu Succession Act, 1956 provides that a child in the womb at the time of the intestate's death and subsequently born alive has the same right to inherit as if born before the death.

Correct answer: D

Under S.2(d) of the Indian Succession Act, 1925, 'Indian Christian' means a native of India who is, or in good faith claims to be, of unmixed Asiatic descent and who professes any form of the Christian religion.

Correct answer: D

Under S.15 of the Indian Succession Act, 1925, by marriage a woman acquires the domicile of her husband, if she has not already the same domicile.

Correct answer: B

S.20 of the Indian Succession Act, 1925 provides that no person acquires by marriage any interest in the property of the person whom he or she marries; so a husband does not acquire an interest in the wife's property.

Correct answer: A

Under S.33 of the Indian Succession Act, 1925, where the intestate has left a widow but no lineal descendants, the widow's share is first set apart before distribution of the remainder to kindred.

Correct answer: C

Under S.65 of the Indian Succession Act, 1925, privileged wills may be made by a soldier or airman employed in an expedition or engaged in actual warfare, or a mariner at sea.

Correct answer: A

Under S.6(2) of the Specific Relief Act, 1963, a suit for recovery of possession on the basis of prior possession (dispossession without consent) must be brought within six months from the date of dispossession.

Correct answer: D

Under S.14 of the Specific Relief Act, contracts that are determinable, require court supervision, or where compensation is adequate cannot be specifically enforced — so none of (a),(b),(c) can be enforced; the answer is 'None of the above'.

Correct answer: A

A mere agreement to enter into a contract and a contract to marry (personal in nature) cannot be specifically enforced; a concluded contract for sale of immovable property (under allotment) can be specifically enforced.

Correct answer: D

In a suit for specific performance the defendant may plead that money is adequate compensation, uncertainty of terms, or that the contract was made in excess of power (ultra vires) — all of the above are valid defences.

Correct answer: D

Under S.16 of the Specific Relief Act and equitable principles, a plaintiff who has violated an essential term, acted fraudulently, or acted at variance with the contract is disentitled to specific performance — all of the above.

Correct answer: A

Specific performance is a civil remedy granted to enforce civil rights arising from a contract; it cannot be used to enforce penal laws.

Correct answer: C

A suit for possession under S.5 of the Specific Relief Act is based on title and is governed by Article 65 of the Limitation Act, 1963, which prescribes a period of twelve years.

Correct answer: B

S.13 of the Specific Relief Act (relief against imperfect title of the vendor) operates only where the vendor's title is imperfect; it has no application where the vendor has (perfect/good) title to the property.

Correct answer: B

Under S.27 of the Specific Relief Act, 1963, rescission may be adjudged where the contract is voidable or terminable by the plaintiff (or, under certain conditions, unlawful). The standard examination answer is that rescission is granted where the contract is voidable.

Correct answer: B

Under S.34 of the Specific Relief Act, any person entitled to any legal character, or to any right as to property, whose character or right is denied by the defendant, may sue for a declaration.