# UPHJS 2016 mains paper, solved All 42 questions from the 2016 mains paper of the Uttar Pradesh Higher Judicial Service examination, in the order they were set. Canonical: https://unisonlegal.in/uphjs-exam-prep/mains-paper/uphjs-2016 ## The questions ### Question 1 1(A). What are the necessary conditions to constitute an Educational Institution as a “Minority Institution”. Discuss, in brief, in the light of relevant statutory provisions and leading authorities on the subject? 10 *1 marks* ### Question 2 1 (B). Some persons constitute a Society consisting of Members of different communities and established an Educational Institution imparting education upto Secondary classes. With passage of time Society managed its affairs so as to confine its membership only to a minority community. Thereafter it resolved that hence on Educational Institution shall be a “Minority Institution” and requested State Government/ District Inspector of Schools to recognize institution as “Minority Institution”. Whether such Institution can be recognized as an “Minority Institution”? Give answer, by giving reasons, referring to relevant statutory provisions and case laws. 10 *1 marks* ### Question 3 2(A). Explain relations between the Union and the States in legislative matters with reference to various Articles of the Constitution. 10 *1 marks* ### Question 4 2(B). Whether on account of marriage of a lady belonging to SC/ST category to be person of unreserved category she loses her status as SC/ST person for the purpose of grant of employment or contesting election to reserved seats, and what consideration would prevail in determining the caste status of a child born out of their wedlock? 10 *1 marks* ### Question 5 2(C). An Ordinance was promulgated by the President and lapsed with passage of time or ceased since it could not be replaced by an Act of Parliament or disapproved by Parliament. Ordinance had abolished certain posts in Government service, as a result whereof holders of such posts stood terminated. Whether such posts shall stand restored and persons who were terminated would be entitled for restoration of their service since Ordinance has. lapsed/ceased and not replaced by an Act of Parliament or disapproved? Give your answer with reasons, relevant statutory provision and case law, if any. 10 *1 marks* ### Question 6 3(A). What is the distinction between Mitakshara Coparcenary and Joint Family-in Hindu Law? 10 *1 marks* ### Question 7 3(B). Narayani married to Dindayal in 1955. Both were Hindus. Her husband die within three months of marriage. After the death of husband, she was thrown out of her matrimonial house by her in-laws and she came to her parental house where she died after coming to force of Hindu Succession Act, 1956. She had extensive self acquired properties. Who will be her heir either from the father’s heir or from the husband’s heir and under what provision ? 15 *1 marks* ### Question 8 4 (A) Whelher a condition can be attached with Hiba (gift) under Muslim Law? Is there any distinction in this regard between gift of corpus and gift of usufruct? A Muslim male gifts a house belong to him to his wife with the condition that she shall not alienate the same. The donee executes sale deed of the property. Whether the sale deed is valid? Support your answer with judgments. 20 *1 marks* ### Question 9 4 (B) ‘X’ a real estate agent due to his proximity with the Ruling Party comes to know that a highway is being laid from the village concerned, and persuades ‘A’, the tenure holder, to enter into a contract for sale of his substantial land on 1-1-2010 at the rate of Rs. 10,000/- per bigha as the earnest money. The sale was to be executed within a year. ‘A’ died on 10-10-2010. The road project is inaugurated on 1-11-2010. ‘X’ files a suit for specific performance of contract against ‘B’ only heir of ‘A’ on 20-12-2010, with the allegation that he was and is willing to perform his part of the contract, and that a notice was previously sent to ‘A* to execute sale deed on 30-8-2010. Suit is contested on the ground that it was not entered into between the parties, and that due to changed circumstances, prices of land in the village have increased manifold, and would otherwise cause grave hardship for ‘B\ as it would virtually render him landless. It is also claimed that it would be inequitable to enforce the contract. Decide with reference to provisions of law and the authorities on the subject. 20 *1 marks* ### Question 10 5(A). State the exception when an agreement without consideration is still valid and enforceable. 10 *1 marks* ### Question 11 5 (B) Write short note with reference to case law on :— (i) Principles of lis pendens. 15 (ii) Defamation of deceased person 15 (iii) Part performance of contract 15 (iv) Absolute liability and strict liability in torts 15 (v) Contract of personal service cannot be enforced. 15 *1 marks* ### Question 12 1. (a) Explain the law relating to stay of suit and consolidation of suits with reference to provisions of the Code of Civil Procedure. 10 *1 marks* ### Question 13 1. (b) ‘A’ claiming that ‘B’ had agreed to sell his agricultural land in his favour for Rs. 5,00,000/- through registered agreement for sale dated 3-2-2014, filed civil suit for specific performance of contract. ‘B’ filed written statement denying the execution of agreement for sale and claimed that it has been obtained by fraud. Then ‘B’ filed civil suit for cancellation of agreement for sale in respect of his agricultural land on which annual land revenue of Rs. 130.50 was payable. The suit filed by ‘B’ was decreed ex-parte. ‘A’ on getting knowledge of the decree for cancellation of agreement for sale, moved an application under Order IX, Rule 13 of the Code of Civil Procedure for setting aside the ex-parte decree and also moved an application before the Civil Judge, Senior Division for staying further proceedings of civil suit for specific performance of contract filed by him till disposal of his application under Order IX, Rule 13 of the Code of Civil Procedure. Whether the further proceedings of civil suit for specific performance of contract, which is a previously instituted suit can be stayed, till disposal of application under Order IX, Rule 13 of the Code of Civil Procedure relating to subsequently filed suit? Answer with reasons. 15 *1 marks* ### Question 14 1. (c). The suit for specific performance of contract filed by ‘A’ decreed (ex-parte against ‘B’.) On getting information of the ex-parte decree, ‘B’ moved an application for setting aside the ex-parte decree. Subsequently, pending application under Order IX, Rule 13 of the Code of Civil Procedure, he also challenged the ex-parte decree by filing an appeal against the ex-parte decree, with an application for condonation of delay under Section 5 of Indian Limitation Act, claiming that the time of alleged execution of agreement for sale, he was minor and as the agreement for sale is null and void so also the decree for specific performance of contract. The application under Order IX, Rule 13 of the Code of Civil Procedure was dismissed by the trial court, in view of explanation inserted by Act No. 104 of 1976 w.e.f. 1-2-1977 on account of filing of appeal. Subsequently, the appeal filed by ‘B’ was dismissed as barred by time. Whether the trial court was right in dismissing the application under Order IX, Rule 13 of the Code of Civil Procedure on the ground of filing of appeal? Answer with reasons. 10 *1 marks* ### Question 15 2. (a). How and when a criminal court can take cognizance of an offence? Explain the law on the topic with reference to the exceptions provided in the Code of Criminal Procedure, 1973. 10 *1 marks* Cognizance is an act by which the court takes judicial notice of the offence committed within the territorial jurisdiction of the court. Section 190 and section 193 of cr.p.c made provision relating to cognisance of offence. where Section 190 CRPC provides that the magistrate can take cognizance upon police report, complaint and information regarding the commission of offence by any other means or by own knowledge while section 193 provides that court of sessions can not take cognizance of any offence of original jurisdiction except expressly provided [S. 199(2)] or by committed by magistrate. The power of the court to take cognizance is not unfettered. In certain type of offences the Court has to fulfill certain requirements prior to the cognizance. For example, in case of prosecution of judges and public servants, offences relating to marriage, defamation cases of higher dignitaries etc ### Question 16 2. (b). An application under section 12 of the Protection of Women From Domestic Violence Act, 2005 was moved by wife-complainant with the following prayers: (A) to provide protection to the life and limb of the complainant from the respondents; (B) to grant monthly maintenance of Rs. 5,000/- to the complainant and her children; (C) to grant such other relief or reliefs as the Hon’ble Court deems fit and proper in the circumstances of the case. One year thereafter an amendment application was moved by the wife-applicant, substituting the prayer quoted hereinabove with the following prayers (a) To provide protection to life and limb of the complainant from the respondent. (b) To grant monthly maintenance of Rs. 15,000/- to the complainant and her children. (c) Direct the respondent to return the Stridhana amount of Rs. 3,00,000/-; 15 sovereigns of gold ornaments and other gifts and cash presented to respondent by the complainant and her parents. (d) Direct the respondent to pay the compensation of Rs. 15 lakhs to the complainant for subjecting the complainant to physical and mental harassments. (e) Direct the respondent to pay the cost of litigation to the tune of Rs. 25,000/- so far spent by the complainant pursuing her litigation. (f) Direct the 1st respondent to provide separate residence if required on rent. (g) Directing the respondent to return the original study certificates, medical certificates, deposits certificates and receipts etc. On behalf of the husband-opposite party, application was opposed on the ground that under the Code of Criminal Procedure, 1973 magistrate had no power to allow amendment to a complaint/ application. On behalf of the wife-complainant, it was submitted that the proceedings were civil in nature and provisions of Code of Civil Procedure would be applicable. Thus the court had jurisdiction. The court allowed the application accepting the argument advanced on behalf of the wife-complainant. Appeal is preferred against the order passed by the magistrate. Has the learned magistrate committed any error in rejecting the objection raised on behalf of the husband or not? Give reasons in support of your opinion and refer to the case law on this point. 20 *1 marks* ### Question 17 3(a). Explain the power of the Trial Court to proceed against other persons not being accused appearing to be guilty or the offence with reference to the latest case law. 10 *1 marks* ### Question 18 3(b). Please go through the following facts and answer : Daughter of one accused was married to deceased on 27-5-2007. On 27-05-2007 bride in critical condition due to poisoning was taken to hospital. On the following day on his way to hospital husband received communication that she had died and before her death she made a statement that the husband had administered her poison. A case under Section 498-A, 307, I.P.C. was registered against the deceased. The husband coming to know that his wife had died also attempted to commit suicide. After few days he was discharged from the hospital at the instance of the accused persons against the medical advise. He was taken to the house of one of the accused (father of the bride). On the next following day dead body of the husband was found on a railway track at the distance of 30 km. from the house of the accused (father of the bride). The dead body had crush wounds. It was cut into two pieces. A criminal case was registered against the accused persons. After investigation they were charge sheeted under Section 306, 365 r/w 34, I.P.C. They were charged under these sections, prosecution witnesses were examined. Thereafter, on the application of the prosecution moved under Section 216 Cr. P.C. Charge under Section 302 r/w 34, I.P.C. was framed as an alternative charge. Alteration of charge was objected on behalf of accused persons on the ground that 26 witnesses had already been examined and only one witness remained to be examined. After conclusion of the trial accused persons were convicted and sentenced under Sections 302 r/w 34 and 364 r/w 34,1.P.C. In the appeal on behalf of accused-appellants it was GN that (a) judgment of conviction, so far as it relates to Section 302, I.P.C., is vitiated on the ground that procedure under Sections 216 and 217, Cr. P.C. has not been followed and (b) conviction under Section 364, I.P.C. was challenged on the ground of absence of specific charge. Please record your opinion on (a) and (b) in the light of provisions contained in Cr. P.C. In support of the reasons for your opinion also refer to the case law. 20 *1 marks* ### Question 19 Write short note with reference to judgments on following :— (i) Presumption of fact and presumption of Law 15 (ii) Accomplice and approver 15 (iii) Burden of proof 15 (iv) Res-gestae 15 (v) Witness not excused from answering on ground that answer will criminate. 15 *1 marks* Note: question segregated to respective topics ### Question 20 5(a). Can a Magistrate stop investigation? If so, under which provision of Cr. P.C. Explain. 10 *1 marks* S. 167(5) CrPC If in any case triable by a Magistrate as a summons-case, the investigation is not concluded within a period of six months from the date on which the accused was arrested, the Magistrate shall make an order stopping further investigation into the offence unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period of six months is necessary. ### Question 21 5(b). What is the impact of the following in a criminal trial:— (a) Prosecution witness is examined after closure of defence evidence 5 (b) Evidence of prosecution is closed without giving full opportunity of cross-examination. 5 (c) Charge framed does not disclose the exact offence committed. 5 (d) F.I.R. Is registered at a police station in respect of an offence committed outside its territorial jurisdiction. 5 *1 marks* ### Question 22 1. (a) What are the factors to be kept in mind by the Prescribed Authority while passing an order for recounting of votes, in proceedings under Section 12-C (1) of the U.P. Panchayat Raj Act, 1947, challenging the Election of Gram Pradhan? 15 *1 marks* ### Question 23 1. (b) Discuss Pending proceedings under Section 95 (1) (g) of U.P. Panchayat Raj Act, term of Pradhan expires. Whether the proceeding can be concluded or dropped? If dropped, how the loss, waste or misapplication of money or property of the Gaon Sabha can be determined and recovered? 10 *1 marks* ### Question 24 1. (c) A Suit for declaration of bhumidhari rights is filed before the Revenue Court on 1-9-2015, in which an injunction order is also passed to the effect that the status quo as regards possession be maintained by the parties and the property be neither alienated nor its nature be changed in any manner. On 10-9-2016, a notification is issued under Section 4(2)(a) of the U.P. Consolidation of Holdings Act, 1953 declaring the village, in which the land in question situates, for being brought under Consolidation operations. The defendant in the declaratory Suit, in another proceedings pending before the Civil Court for permanent injunction, wherein he is the plaintiff, takes a plea in respect of the same land that on issuance of the notification under Section 4(2) of the Act, 1953, the proceedings in the declaratory Suit stood automatically abated. Discuss as to whether the plea taken by the defendant before the Civil Court is tenable in view of the Provisions contained in Section 5(2) of the Act, 1953 15 *1 marks* ### Question 25 2. (a). Discuss in detail the procedure for removal of President of a Municipality by a motion of no confidence. Support your answer by case law. 20 *1 marks* ### Question 26 2. (b). Husband died after coming into force of U.P.Z.A. and L.R. Act, 1950 leaving behind his widow and one minor son. Minor son inherited his holding under Section 171 of the Act. Widow remarried. Thereafter son also died —Whether mother of minor son will be his heir or property will devolve on the other heir of the father of minor son? 15 *1 marks* ### Question 27 3(a). Discuss the right of the Private Defence of Body with reference to its ambit, extent and limitations. 10 *1 marks* ### Question 28 3(b). A group of six adult persons from Allahabad consisting of five men namely A, B, C, D, E and one girl namely F, went to attend an Adventure Camp in Darjeeling. Another group of five men had also gone there from Kanpur with similar purpose. One evening when the Allahabad Group was enjoying a campfire, the Kanpur Group after seeing the girl from a distance came over there and started passing lewd and obscene sexually coloured remarks on the girl. The Allahabad Group protested against the same but the eve-teasing continued unabated. ‘A’ said to the eve-teasers that they should better go and misbehave with their own sisters. Getting (enraged) at such remarks of protest, the Kanpur Group jointly assaulted upon ‘A’ by kicks and fists. In response to this ‘B’ picked up a half brick lying there and using the same caused thereby simple injuries to one of the men of Kanpur Group namely ‘K’. Similarly ‘C’ also picked up the brick and threw it on the Kanpur Group causing fracture of arm to another of them namely ‘L’. The other two men of Kanpur Group namely ‘M’ and ‘N’ were pushed back by ‘D’ and ‘E’ by force as a result of which they collided with the forest rock which was just behind them resulting in one fracture each on their heads. During the course of all these happenings ‘A’ of Allahabad Group received multiple simple injuries. Meanwhile in the same process one of the men of Kanpur Group namely ‘O’ pulled down ‘E’ on the ground, gave him repeated fists blows and while doing so he also kept abusing ‘E’ calling him all sort of filthy names. ‘E’ somehow managed to wriggle out from the grip and picked up a knife lying there and gave repeated blows to Kanpur man ‘O’ on his chest and continued that act of stabbing till the Kanpur man died. Keeping in view the events which took place as have been described above, please answer the following questions:— (i) Critically examine and discuss whether the Allahabad Group as such or any of its members is or are guilty of committing any offence or offences? Discuss the liability of each individual member of both the groups and give reasons for holding them guilty or not guilty. (ii) Whether there will or there will not be any connecting nexus of liability in between different members of the Allahabad Group? Whether the act done by ‘E’ shall make A, B, C, D and F accountable and liable for the same? If yes, why? If not, why? 20 *1 marks* ### Question 29 4. (a). (i) State the provisions of I.P.C. dealing with its extra-territorial operation. What is the difference between extract-territorial operation and extradition? 5 *1 marks* ### Question 30 4(a). (ii) Decide the following with reasons:— An Indian commits adultery in England which is not an offence there. He returns to India. Can he be punished under Section 497, I.P.C. in India? 5 *1 marks* ### Question 31 4(b) “A” knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of a woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn child with which she is pregnant is thereby caused. What offence ‘A’ has committed under the Indian Penal Code? Answer with reasons. 10 *1 marks* ### Question 32 5 (a) Powers of State Government governed under Section 41 of U.P. Urban Planning and Development Act, 1973. 15 *1 marks* ### Question 33 5 (b) Powers of the District Magistrate to enhance rent under U.P. Act No. 13 of 1972. 15 *1 marks* pl enter ### Question 34 5 (c) What are the kinds of plans contemplated under the U.P. Urban Planning and Development Act, 1973? 15 *1 marks* ### Question 35 5 (d) What buildings are exempted from applicability of U.P. Act No. 13 of 1972? 15 *1 marks* ### Question 36 5 (e) Explain the procedure for eviction of an unauthorized occupant from the Gaon Sabha land. '15 *1 marks* ### Question 37 4. Write short note with reference to judgments on following :— (iv) Res-gestae 15 *1 marks* ### Question 38 4. Write short note with reference to judgments on following :— (i) Presumption of fact and presumption of Law 15 *15 marks* ### Question 39 Write short note with reference to judgments on following :— (ii) Accomplice and approver 15 *15 marks* ### Question 40 4. Write short note with reference to judgments on following :— (iii) Burden of proof 15 *15 marks* ### Question 41 4. Write short note with reference to judgments on following :— (v) Witness not excused from answering on ground that answer will criminate. 15 *15 marks* ### Question 42 4. Write short note with reference to judgments on following :— (i) Presumption of fact and presumption of Law [15 marks] *15 marks* Presumptions are of three types: (i) Permissive presumptions or presumptions of fact. (ii) Compelling presumptions or presumptions of law (rebuttable). (iii) Irrebuttable presumption of law or 'conclusive proof'. Clauses (i), (ii) and (iii) are indicated in clauses (1), (2) and (3) respectively, of Section 4, Evidence Act. 'Presumptions of fact' are inferences of certain fact patterns drawn from the experience and observation of the common course of nature, the constitution of the human mind, the springs of human action, the usages and habits of society and ordinary course of human affairs. Section 114 is a general section dealing with presumptions of this kind. It is not obligatory for the Court to draw a presumption of fact. In respect of such presumptions, the Act allows the judge a discretion in each case to decide whether the fact which under section 114 may be presumed has been proved by virtue of that presumption. In case of a 'Presumption of Law' no discretion has been left to the Court, and it is bound to presume the fact as proved until evidence is given by the party interested to rebut or disprove it. Instances of such presumptions are to be found in sections 79, 80, 81, 83, 85, 89 and 105, Evidence Act. The distinction between the effect of the first and the second kind of presumptions on the burden of proof, is important. Presumptions of Fact merely affect the "burden of going forward with the evidence." 'Presumptions of Law', however, "go so far as to shift the legal burden of proof so that, in the absence of evidence sufficient to rebut it on a balance of probability, a verdict must be directed". (Fleming). May presume, shall presume and conclusive proof are defined under Section 4 of the Evidence Act, but the expression presumption itself is not defined under the Act. According to Black's Law Dictionary a "presumption", is a rebuttable assumption of fact, resulting from a rule of law which requires such fact to he assumed from another fact or group of facts found or otherwise established in the action. A presumption is not evidence in itself. It is either rebuttable or conclusive. Every rebuttable presumption is either (a) a presumption affecting the burden of producing evidence or (b) a presumption affecting the burden of proof. The word "presume", according to grammar is 'verb' transitive and intrasitive both arid means for granted, to take for granted, to assume before hand. The "presumption", is noun according to grammar and means supposition, a ground for presuming, that which is supposed to be true without direct proof, the conclusion or inference that a fact exists. Thus, the term 'presumption' in its largest and most comprehensive signification may be defined, where in the absence of actual certainty of the truth of a fact or proposition, an inference affirmative of that truth is drawn by a process of probable reasoning from something which is taken for granted. Presumptive evidence has obtained a restricted legal signification, and is used to designate an inference affirmative or disaffirmative of the existence of some fact, drawn by a court or a judicial tribunal, by a process of probable reasoning from some matter of fact, either judicially notices or admitted or established by legal evidence to the satisfaction of the Court or the tribunal. Presumption is a rule of law under which courts are authorised to draw an inference in respect of a particular fact. The presumptions of law are in reality rule of law and part of the law itself. In other words presumption of law is one which once the basic fact is proved and no evidence to the contrary has been led, compels a finding of the presumed fact. Presumption of law introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the owns (onus?) on the accused. The legislature has chosen to use the expression 'shall presume' which is mandatory and not the expression 'may presume'. May presume is presumption of fact and 'shall presume' is a presumption of law, but rebuttable, but at the same time it is not lightly to be repelled. The evidence for the purpose rebutting or repelling it must be strong, distinct, satisfactory and of a conclusive nature. The conclusive proof, however, is irrebuttable presumption of law. Similar to the rebuttable presumption of law Under Section 113B of the Evidence Act, there are presumptions provided Under Section 79 of the Evidence Act, which provides that the Court shall presume to be genuine every document purporting to be a certified copy of a document i.e. judgment or decree etc. which is by law declared to be admissible as evidence of a particular fact and Which purports to be duly certified by any officer. Section 80 (Eighty) provides that a Court shall presume as genuine a document produced as record of evidence. Section 81 (Eighty one) enacts that Court shall presume the genuineness of every official Gazette. Section 82 (Eighty Two) enacts that Court shall presume a document admissible in England without proof of seal etc. Section 83 (Eighty three) provides that Court shall presume that maps and plans preferred by the Central or State Government to be genuine. Section 84, (Eighty four) provides that Court shall presume every book printed under authority of a Government containing Law to be genuine. Section 85 provides that Court shall presume every document purporting to be a power of attorney to be genuine. It can very safely be inferred that the presumption pointed out Under Section 113B is similar to Sections 79 to 85 of the Evidence Act. Sections 101 to 105 of the Evidence Act. Section 105 enacts rebuttable presumptions of law in criminal cases. Section 105 runs as follows : When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances. Section 101 enacts that whoever desires a Court to give judgment as to any legal right or liability dependent upon existence of facts which he asserts must prove that those facts exist. This section is based on a Maxim El Incumbit Probatio Qul Dicit Non Quit Negat which means that the burden of proving a fact rests on the party who substantially asserts the affirmative of the issue and not on the party who denies it, as the negative is usually incapable of proof. Section 102 provides that the burden of proof would lie on the person who would fail if no evidence at all were given. Section 103 provides that burden of proof as to particular fact lies on the person who wishes the Court to believe in its existence. Section 104 provides that the burden of proving fact to be proved to make evidence admissible is on that person who wishes to give such evidence. There is a presumption of innocence in favour of an accused in Criminal cases as provide exceptions to the general rule that in criminal cases burden of proof lies on the prosecution. No doubt the prosecution is bound to negative any exception favourable to the accused. But where the facts proved raise a rebuttable presumption of law against accused as provided Under Section 113B as added by the Amendment Act, the burden is shifted on the accused in view Section 105 of the Evidence Act and also otherwise, to lead such convincing, positive and strong evidence so that the presumption of law Under Section 113B may be rebutted. We may consider the standard or the degree or presumption and the degree of proof and evidence in rebuttal. As the court shall presume one certified copy of a judgment or decree certified to be rule to be a genuine document (vide Section 79) or the Court is to presume an official Gazette to be a genuine document (vide Section 81) and the map and plans prepared by Central or provincial Government are presumed to be genuine and the law books printed under the authority of Government are presumed to be genuine (vide Sections 84 and 83), the same is the degree of presumption and it is obligatory for the court to raise. ## Elsewhere - [Every UPHJS paper held](https://unisonlegal.in/uphjs-exam-prep)