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  1. 1. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 1 LAW ESSAYS PREVENTIVE DETENTION LAW AND THE RIGHTS OF AN INDIVIDUAL The Unlawful Activities (Prevention) Act, 2008 (UAPA) has been not as stringent as the Prevention of Terrorism Act, 2002 (POTA), which was repealed by the present UFA gov- ernment immediately after it came to power in 2004, the new amendments allow longer detention without bail. Any new law is bound to narrate a very tragic tale of life and its relations: the relation between government and individual. One more law has been enacted. After dithering for four and a half years, the Congress-led UFA Government had made crucial changes to the Unlawful Activities (Preven- tion) Amendment Act, 1967 that could give law enforce- ment agencies more powers to deal with those accused of involvement in terrorist activities. The Unlawful Activities (Prevention) Act, 2008 (UAPA) has been not as stringent as the Prevention of Terrorism Act, 2002 (POTA), which was repealed by the present UPA government immediately after it came to power in 2004, the new amendments allow longer detention without bail. Any new law is bound to nar- rate a very tragic tale of life and its relations: the relation between government and individual. It is full of oppression, invasion and coercion. By nature man believes in anarchy. A child does not do what he/she has been told. But a hu- man being has a big limitation. He cannot live in isolation. He can survive only in collectivity. For this he creates soci- ety. The society cannot survive without proper regulation. For this he creates state and government. The government controls his anarchic nature and provides him safety and security. The creation of state is not imposed on him. He has chosen it. A state is a voluntary process and its cre- ation is the natural requirement of an individual. Once the state comes into existence, the struggle between the state and individuals tend to start. The entire history tells that the state has always tried to dominate the individual some- times directly by force and sometimes indirectly by manoeuverings. In tribal societies, the chief was elected on the basis of his capabilities. The survival of the chief depended on his performance. The chiefs made deliberate attempt to ensure heredity succession. He knew that his charismatic qualities could not be transmitted to his own sons. Then he started manoeuvering the things in order to settle the future of his sons. In doing so, the principles of equality and the rule of law were forgotten, ignored and invaded. That was the origin of the tendency to betray the mandate of the people. This tendency has acquired a natu- ral instinct. History directly tells that almost every tribal system was converted into a monarchic system. The Athens and Sparta were converted into Roman Empire; the tribals of central Asia were brought under Ummayids and Abbassids; the 6th century B.C Mahajanapadas into Magadha and Mauryan dynasties; the tribal groups of China into Manchu dynasty; the tribals of the Japan transformed into Meiji dyanasty. Once the extended patrimonial bureaucratic state was es- tablished, it lasted for centuries. In the mean time the con- cept of liberty, rights, equality and likewise was subverted and the relations were perverted. The individual’s rights were transgressed and vandalized. Dynasties were created and perished; rulers came and went out; new rulers came and also gone and thus it became an incessant process. It lasted so long that the individual even had forgotten that who were ruling them. They also had forgotten that what liberty and rights, they owed. That is why we had forgotten when the Rajputs were gone, Sultan- ate came and gone and Mughal came and perished and when the British came and left. In this process the kings devised a number of theories to legitimize their power and the most durable theory was the divine origin of the state policy. These theories had completely disassociated the people from the state and made kings answerable to the Gods. The ruler was the law and the rule of law was the ruler. The justification of the regime was only a formality and a prerogative of the king. The entire Europe fought against the mercantilist and ab- solutist kings. The struggle between the Parliamentary in- stitutions and British King lasted for centuries and finally the Glorious Revolution of 1688 removed the hegemony of the kings. The French people had to wait for 100 years even after their French Revolution. Germany and Russia had to wait till the second decade of the 20th century to ward off the absolutist kings. They are so many countries that are still fighting for democracy like Myanmar, Thailand, and a number of African states. The struggle for full-fledged and stable democracy in Pakistan, Nepal is still on. These historical facts have suggested only two things: (a) the human being has a natural tendency to dominate; and (b) get dominated by others. In other words, he will either dominate or will be dominated. He cannot live together in equal manner. That is why one who tastes power, forgets his relations. His past is cut-off. That is why power is contagious. Any- one who became powerful did the same thing. And will con- tinue to do the same. In doing so, he becomes so identical that people tends to forget their names and have found noth- ing new in them. He becomes alien to the world to which he originally belonged. He becomes supermandane. That is why Mary Antonette said “to starving people that if you do not have bread, eat cake”. A number of accidents and inci- dents have brought democracy. Democracy is the ultimate consummation of individual’s rights and the rights of state. It evenly balances them. In democracy, people are the source of the state. This is probably much closer to the Rousseau’s social contract theory. Even in democracy, the human ten- dency has not changed. He is always prepared to exploit the flaws of the laws. If the flaws are not there then he creates flaws. Flaws are natural in creations. If there is sufficient mores, norms and values, then there is no need to make stringent laws; and if there is absence of proper norms and values, then there cannot be proper func- tioning of a law. We cannot become more powerful than God because God has created the entire universe. He is our creator. Therefore, a law, which is created by us, can- not be greater than us. A law has to depend on us for its existence and effective implementation. It is nebulous to assume that the law itself would eradicate crime and terror- ism. This has been proved by TADA, POTA and MCOCA. The law depends on the will and the intention of the implementers. There is only one fundamental right: a man’s right to his own life. The A right to life means the right to engage in self-sustaining and self-generated action-which means free- dom to take all the actions required to the furtherance and the enjoyment of his life. There are two potential violators of man’s rights: the criminals and the government. .........
  2. 2. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 2 LEGAL TERMS LEGAL SYSTEM VOCABULARY Act: a specific piece of legislation passed by a legislative body, such as Parliament or Congress. An Act of Parlia- ment is divided into parts, sections, sub-sections, para- graphs and at the end are the schedules. ADR: these initials stand for alternative dispute resolution. This includes mediation, conciliation and arbitration. Arbitration:a form of alternative dispute resolution where a third party, acting as an arbitrator, delivers an opinion that is binding on the parties. Attorney-at-law: usually referred to simply as an attorney. An attorney is a legal professional in the United States with the right to practice law in the state for which he has been admitted to the bar. Attorney-General: in England he is a legal adviser to the Crown. The Attorney-General has political duties which in- clude advising government departments. In the USA there is also an Attorney-General. He is the head of legal affairs in a state or in the federal government. Barrister: a legal professional in the English legal system with a right of audience before all courts. As well as acting as an advocate, a barrister may also be a specialist in a certain area of law. Beneficiary: one who benefits from a trust and who has an equitable interest in the trust property. Bill: an Act of Parliament is called a bill before it has been formally approved. Binding: if a decision is binding, it must be followed. For example, precedents set by a higher court must be followed by lower courts. Brief: in the English system this refers to the written in- structions sent by a solicitor to a barrister briefing him about a case. Canon law: also referred to as ecclesiastical law. This is the law of the church. Case law: refers to the decisions made by judges applying legal principles from legislation and binding precedent (see doctrine of binding precedent) to the circumstances of the particular disputes before them. Certiorari: this order usually transfers a case from an ap- peal court, and in certain special cases from a trial court, to the US Supreme Court for judicial review. Challenge: potential members of a jury can be challenged, either for a reason that is stated before the court or for no reason. This is a way of excluding potential jurors from a jury. Chambers:accommodation for a group of barristers. Bar- risters in chambers are self-employed and group together only to share facilities and staff. It would therefore be wrong to refer to a firm of barristers. Civil law: this term has two meanings. It can be used in the sense of the law concerned with private rights rather than public law. The term may also be used to describe a legal system. Unlike the common law system, a civil law system has its roots in Roman law and is a codified sys- tem. Clerk: the English legal system knows various types of legal clerks, for example, lay magistrates are assisted by a magistrate’s clerk. The clerk in barristers’ chambers, often now referred to as the practice manager, acts as a busi- ness manager for the barristers of that chamber. Coded systems: systems where the codification of the law has taken place, i.e. the laws of the land have been com- piled to form a systematic, formal legal code. Common law: a system of law which originated in medi- eval England and was later applied in former British colo- nies, including the United States. Common law is based on judicial precedent arising from cases rather than law based on codes or other forms of legislative enactments. Competence: a court has the competence to hear a case if it has jurisdiction over the person or property at issue in that case. Conciliation: alternative form of dispute resolution where a third party, acting as a conciliator, offers the parties a non-binding opinion. Concur: verb used to indicate that judges in a case agree with the majority conclusion. The reasons for reaching that conclusion may, however, vary. Congress: the federal legislative body of the United States. It consists of two houses, the Senate and the House of Representatives. Conveyancing: drawing up legal documents to transfer the ownership of property from seller to buyer; in general the law and procedure with respect to the purchase and sale of property. Coroner’s Court: holds an inquest where death appears to be violent, unnatural or sudden and the cause is un- known. Counsel: when representing a party in court, a barrister is referred to as counsel and an attorney as counsel or coun- sellor. County Court: in the English system it hears civil cases in its local area of jurisdiction. The name county court may also be found in the court systems of several states in the United States, where it has a limited jurisdiction in civil and criminal cases. Court of Appeal: this is an appellate court to be found in many common law jurisdictions hearing appeals from lower courts. Court of first instance: this term can be used to describe a court in which proceedings are initiated. Crown Court: this is a court in the English court system that hears primarily criminal cases. Custom: this is unwritten law that is legally valid if a prac- tice can be shown to have been continuously in operation since time immemorial. Discretionary: where a remedy is not available as of right but depends upon the consideration of the court. Dissent: where a judge disagrees with the majority opinion in a case. A dissenting judgment is classed as obiter dicta. Distinguish: if a case is distinguished, a judge finds a pre- cedent laid down in a previous case not binding on the case before him because the material/key facts in the present case differ from those of the previous case. District courts: these are the trial courts of the American federal court system. Doctrine of binding precedent: the precedent laid down in a prior case of a similar nature must be followed. The Latin term for the doctrine of binding precedent is stare decisis.
  3. 3. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 3 LATEST & IMPORTANT IN LAW LAW AND JUSTICE Surrogate Mother and Her Children’s Citizenship • In a landmark judgment, the Gujarat High Court has held the surrogate mother as the “natural mother” and her na- tionality to decide the citizenship of the new-born babies irrespective of the nationality of the father. The High Court also asked the central government to immediately frame necessary laws to clear the complications over surrogacy while directing it to restore the Indian passports to the twin sons of a German father given birth by an Indian surrogate mother. • The matter was appealed in the Supreme Court later and the apex court on December 4 asked the Centre to give travel documents to the surrogate twins within 48 hours of parents Jan Balaz and Susane Lohle approaching the pass- port authority for it despite the parents expressing fear in the Supreme Court that their first-borns could be staring at the possibility of being stateless citizens. • A HC Division Bench comprising Chief Justice KS Radhakrishnan and Justice Anant Dave held that the chil- dren born of a surrogate mother on Indian soil are Indians by birth, irrespective of the nationality of the father. How- ever, it said immediate legislation was necessary to inject clarity to the situation created by reproductive science and technology as the existing legal systems in the country had no clear answer. The judgment was delivered in the case of a German national, Jan Balaz, who had sought Indian passports for his twins, Nikolas and Leonard, born to surrogate mother Martha Khristi, in Anand in central Gujarat last year. Dr. Nayana Patel, the famous surrogacy expert aided the birth. The German couple who had twins through an Indian surrogate mother, planned to take the newborns back to Germany as Indian citizens since Ger- man laws did not recognize surrogacy as a means of par- enthood. Considering the German Laws, the father of the children appealed to the Gujarat high court, which held that since the surrogate mother was an Indian national, the sur- rogate children would also be treated as Indian nationals and would be entitled to Indian passports. • Mr. Balaz and his_wife, Sussane Lohle, came to India to seek Dr. Patel’s help as Sussane could not produce ova and conceive a child. An unnamed Indian woman donated eggs, which were fertilized with Balaz’s sperms and planted in Martha’s womb. She (surrogate mother) gave birth to the twins on January 4 last year. • Mr. Balaz, a freelance writer, who had since shifted to the United Kingdom since surrogacy was banned in Germany, applied for Indian passports for his boys to take them to the UK. The passports were initially issued but later he was asked by the Ahmedabad passport office to surrender the passports on the ground that the column of mother’s name carried that of Sussane who did not conceive the children and violated the Birth and Death Registration Act 1969. • Mr. Balaz after surrendering the passports moved the High Court to get them back, so that he could take the boys along with him and make them citizens of his country. • Dwelling upon the complexity of the issue, the Bench pointed out that “a lot of legal, moral and ethical issues arise for our consideration in this case, which has no pre- cedents in this country. We are primarily concerned with the rights of two new born innocent babies, much more than the rights of the biological parents, surrogate mother, or the donor of the ova. • The court observed that a comprehensive legislation de- fining the rights of a child born out of a surrogacy agree- ment, rights and responsibilities of a surrogate mother, egg donor, commissioning parties, legal validity of the agree- ment, the parent child relationship, responsibilities of the Infertility Clinic was also required. Upholding the citizen- ship rights of the boys, the court said: “We, in the present legal frame-work, have no other go but to hold that the ba- bies born in India to the gestational surrogate are citizens of this country and therefore entitled to get the Passport and therefore direct the Passport authorities to release the passports withdrawn from them forthwith.” Judges Asset Enquiry Bill (2009) Controversy • Judges Assets Bill is a proposed legislation which would make disclosure of personal assets of judges mandatory in India. The Bill titled ‘Judges (Declaration of Assets and Li- abilities) Bill, 2009’ was attempted to be introduced in Rajya Sabha by Justice Minister M. Veerappa Moily on August 3,2009. However, it was postponed due to opposition from both Left and Right about Clause 6 of the bill which states that High Court and Supreme Court judges would declare their assets but the same would not be made public. • The bill would mandate Chief Justice of India and other judges of the Supreme Court and High court and their de- pendents declare their assets. The bill was approved by the cabinet on 25 July 2009. The Union Ministry of Law and Justice in October, 2009 said it would introduce a new Judges (Inquiry) Bill in the following Session of Parliament. This Bill would also have a clause making it mandatory for judges of the Supreme Court and the High Courts to de- clare their assets on a regular basis to their respective Chief Justices. • But, more importantly, it was told to the newly-reconsti- tuted Department-related Parliament Committee on Law and Personnel that the citizens of the country would be able to access details of assets of the judges under the Right to Information Act, 2005. • Having lost face in its failed attempt to introduce the Judges (Declaration of Assets and Liabilities) Bill, which was aimed at preventing any attempt by anybody, including any court or public authority, to access details of assets filed by the judges, the Law Ministry decided to shelve its plan to bring in a standalone legislation on the matter of judges’ assets. • Some MPs raised the issue of growing instances of cor- ruption in the higher judiciary. Some member questioned the present system of appointment of judges of High Courts and Supreme Court by the collegium of judges, with one MP saying the same needed to be reviewed. An MP was critical of the policy to allow kin of High Court and Supreme Court judges to practice in the same court. Some MPs also underlined the need to bring in a fresh transfer policy for judges.
  4. 4. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 4 RECENTJUDGMENTS LIMITATION Hamid Khan v. Ashabi (2009) 1 SCC 530: JT 2009 (1) SC 236: (2008) 16 SCR 297: (2008) 15 SCALE 528 Law Point:Commencement of Limitation Period: Fact:A sale agreement was made between charitable trust and respondent for sale of land by the said Trust with the stipulation that permission would be taken from Charity Commissioner in terms of the relevant statutory provisions. The Charity Commissioner directed the sale of the land in public auction. Setting aside the said order the High Court directed the Charity Commissioner to pass a fresh order. The Charity Commissioner then passed an order in favour of the respondent. Decision:Thesuitforspecificperformanceofthesaleagree- ment was filed by the Respondent against the said Charity Commissioner as was held, maintainable. State Bank of India v. B.S. Agriculture Industries (2009) 5 SCC 121 Law Point: It is for the court to determine whether a suit is barred by Limitation. The Limitation being a jurisdictional fact need not be pleaded. Fact: A complaint was filed on 5-5-1997 against the appel- lant Bank claiming an amount of Rs. 2,47,154 for deficiency in service along with interest @ 12% p.a., litigation ex- penses and compensation. The complainant averred that it had sent to the bank seven bills for collection of payment and remittance of proceeds to the complainant and the bank was instructed to return the bills and GRs if the drawee did not pay the bills upto 7-6-1994 and despite repeated letters and legal notice, the bank has neither sent the amount nor returned the said bills and GRs. necessitating the com- plainant to report to the District Forum. The District Forum concluded that there was deficiency is service and directed the Bank to pay the amount with interest @ 15% per an- num, from 21-4-1994 and Rs. 500 as compensation. The challenge to the order before the State Commissioner for Redressal of Consumer Disputes and the National Com- missioner was without any success, Decision: On the ground of limitation the Supreme Court held that Section 24A of the Consumer Protection Act, 1986 was peremptory in nature and required the consumer fo- rum to see before it admits the complaint that it had been filed within two years from the date of accrual of cause of action. The consumer forum, however, for the reasons to be recorded in writing may condone the delay in filing the complaint occurring in Section 24A of Consumer Protec- tion Act, 1986 is a sort of a legislative command to the consumer forum to examine on its own whether the com- plaint has been filed within to limitation period prescribed thereunder. Annakali v. A. Vedanayagam AIR 2008 SC 346: (2007) 12 SCALE 523 Law Point: Adverse possession. Facts: One of the main questions involved in this appeal was that whether a mere long possession for a period of more than 12 years would ripen into title. Decision: Claim by adverse possession has two ele- ments:— (i) the possession of the defendant should become ad- verse to the plaintiff; and (ii) the defendant must continue to remain in possession for a period of 12 years thereafter. Animus possidendi as is well-known is a requisite ingredi- ent of adverse possession. It is now a well settled principle of law that mere possession of the land would not ripen into possessory title for the said purpose. Possessor must have animus possidendi and hold the land adverse to the title of the true owner. For the said purpose, not only animus pos- sidendi must be shown to exist, but the same must be shown to exist at the commencement of the possession. He must continue in said capacity for the period prescribed under the Limitation Act. Mere long possession, it is trite, for a period of more than 12 years without anything more do not ripen into title. Jagadguru Annadanishwara Swamiji v. V.C. Allipur (2009) 4 SCC 625 Law Point: The terms “court” must be held to be of wide import in the context of Limitation Act, 1963. Fact: It is well-settled principle of law and having regard to the definition of the court contained in various statutes like the Code of Civil Procedure or the Evidence Act, it would mean a tribunal, whose decision shall be final and/or would be entitled to take evidence in terms of the provisions of the Evidence Act. It is also well settled that although a tribunal may exercise some of its powers in terms of the Code of Civil Procedure and have all trappings of a court but still would not be treated as a court. Decision; In the context of Section 29(2) of the Limitation Act, 1963, the terms “court” must be held to be of wide import. However, again there exists a distinction between a court and the civil court. Shakuntala Devi v. Chamru Mahto (2009) 3 SCC 310: 2009 Cr LJ 1770 Law Point: The provision of the Limitation Act are ap- plicable to proceedings under Section 145 of Crimi- nal Procedure Code. Fact:The appeal arose out of the order passed by the Patna High Court on 5-1-2007 quashing the order dated 6-1-2006 passed by the Additional Session Judge-cum-Fact Track Court No. 5, Khagaria, in Criminal Revision No. 74 of 2003, confirming the order dated 2-5-2003 passed by the Sub- Divisional Magistrate, Khagaria directing restoration of pos- session of the land in dispute to respondent. The predecessor-in-interest of the appellants, one Dayanand Prasad, filed an application under Section 145 of the Code of Criminal Procedure, 1973 for restoration of possession of the land on the ground that he had been forcibly dis- posed by respondent 1 within two months of such petition being filed. Both the parties in the said proceeding filed their respective responses showing cause and adduced evi- dence, whereupon the Executive Magistrate by his order dated 7-10-1994 declared the possession of the appellants over the land in dispute. Further the original petitioner Dayanand Prasad, the husband of Appellant No. 1 and the father of the appellants No. 2 and 3, expired in 1995. In November 1997, the appellants filed Misc. Case No. 20(M)2/ 97 before the Sub-Divisional Magistrate Khagaria, for resto- ration of possession in pursuance of the order of the Ex- ecutive Magistrate under Section 145(4) of the Code on 7- 10-1994. Allowing the said miscellaneous case the Sub- Divisional Magistrate, Khagaria, passed an order under Section 145(6) of the Code of Criminal Procedure on 2-5- 2003 directing restoration of possession of lands in ques- tion in favour of the appellant.....
  5. 5. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 5 LAW UNIT-I ESSENTIAL FEATURES OF INDIAN CONSTITUTION DISTRIBUTION OF LEGISLATIVE POWERS BETWEEN UNION AND STATES FUNDAMENTAL RIGHTS, FUNDAMENTAL DUTIES AND DIRECTIVE PRINCIPLES OF STATE POLICY JUDICIARY PARLIAMENT AND STATE LEGISLATURES AMENDING PROCESS OF THE CONSTITUTION ROLE OF ELECTION COMMISSION IN DEMOCRATIC PROCESS SALIENT FEATURES OF THE CONSTITUTION A “Constitution” means a document having a special legal sanctity which sets out the framework and the principal functions of organs of government of a State and declares the principles governing the operation of those organs. Con- stitution means a written organic instrument, under which government powers are conferred and circumscribed (Schwartz). The Constitution is the supreme or fundamental law of land, and all governmental organs, which owe their origin to the Constitution and derive their powers from its provisions, must function within the framework of Constitution, and must not do anything which is inconsistent with provisions of Consti- tution. The ‘Constitutional Law’ refers to the rules which regulate structure, functions and interrelations of governmental or- gans. The rules are legal as well as include conventions, etc. A country may have a Constitution, but not necessar- ily ‘Constitutionalism’ e.g. a country where dictator’s word is law, can be said to have a Constitution, but not Constitu- tionalism. The Constitutionalism connotes in essence the ‘limited government’. It is the antithesis of arbitrary power. Only when Constitution of a country seek to decentralize power and also impose other restrains, does a country have both-Constitution and Constitutionalism. Following are the principles and norms which promote Con- stitutionalism in a country: a written Constitution, federal- ism, free elections, independent judiciary with judicial re- view, fundamental rights, doctrine of rule of law and separa- tion of powers (Rule of Law implies the absence of arbitrary power, equality before law, and individual liberties). Making of the Indian Constitution-On 29 August 1947, a Drafting Committee was formed under the chairmanship of Dr. B. R. Ambedkar. It formed the Draft Constitution, which was put before the ‘Constituent Assembly’ (a statu- tory sovereign body formed in 1946 by the British, which got plenary powers to frame the Constitution to suit the genius of the people of India) on 21 February 1948. The Draft Constitution was thoroughly discussed in the Con- stituent Assembly. Members of the Constituent Assembly proposed 7635 Amendments and 2473 Amendments Reso- lutions were discussed. May provisions of the Government of India Act, 1935 were incorporated in the Constitution. It took 2 years 11 months and 18 days to make the Indian Constitution. On the 26th day of November 1949 the Consti- tution received the signature of the President of the Con- stituent Assembly (Dr. Rajendra Prasad) and was declared as passed. The provisions relating to citizenship, elections, provisional parliament, temporary and transitional provisions, were given immediate effect i.e. from November 26, 1949. The rest of the Constitution came into force on January 26 1950, and this date is referred to as the date of the com- mencement of the Constitution. SALIENT FEATURES OF THE CONSTITUTION The Constitution of India is unique in many ways. It has several special features that distinguish it from other Con- stitutions of the world. (1)Size of the Constitution:-It is the lengthiest Constitu- tion ever given to any nation. It is a very comprehensive document and includes many matters which could legiti- mately be the subject matters of ordinary legislation or ad- ministrative action. This happened because the Government of India Act, 1935, which was after all basically a statute,....
  6. 6. - IIndFloor,PaliwalMarket,GumanpuraKOTA(-0744-2392059&3290500 6 UNIT-X PARTNERSHIP ACT— NATURE AND ESSENTIALS OF PARTNERSHIP MUTUAL RIGHTS AND LIABILITIES OF PARTNERS, ADVANTAGES OF REGISTRATION OF FIRMS SALES OF GOODS ACT NEGOTIABLE INSTRUMENTS ACT COMPANY LAW— ROLE OF DIRECTORS, DOCTRINES OF INDOOR MANAGEMENT AND ULTRA VIRES THE INDIAN PARTNERSHIP ACT, 1932 (ACT No. 9 OF 1932) [8TH APRIL, 1932] An Act to define and amend the law relating to partnership. WHEREAS it is expedient to define and amend the law relating to partnership; It is hereby enacted as follows :— CHAPTER 1 PRELIMINARY 1.Short title, extent and commencement. (1)This Act may be called the Indian Partnership Act, 1932. (2) It extends to the whole of India except the State of Jammu and Kashmir. (3)It shall come into force on the 1 st day of October, 1932, except section 69, which shall come into force on the 1st day of October, 1933. 2.Definitions. In this Act, unless there is anything re- pugnant in the subject or context,— (a)an “act of a firm” means any act or omission by all the partners, or by any partner or agent of the firm which gives rise to a right enforceable by or against the firm (b)“business” includes every trade, occupation and profes- sion (c) “prescribed” means prescribed by rules made under this Act (d) “third party” used in relation to a firm or to a partner therein means any person who is not a partner in the firm and (e) expression used but not defined in this Act and defined in the Indian Contract Act, 1872, shall have the meanings assigned to them in that Act. 3.Application of provisions of Act 9 of 1872. The unrepealed provisions of the Indian Contract Act, 1872, save in so far as they are inconsistent with the express provision of this Act, shall continue to apply to firms. CHAPTER II THE NATURE OF PARTNERSHIP 4.Definition of “partnership”, “partner”, “firm” and “firm name”, “Partnership” is the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all. Persons who have entered into partnership with one an- other are called individually “partners” and collectively “a firm”, and the name under which their business is carried on is called the “firm name”. 5.Partnership not created by status. The relation of part- nership arises from contract and not from status and, in particular, the members of a Hindu undivided family carry- ing on a family business as such, or a Burmese Buddhist husband and wife carrying on business as such, are not partners in such business. 6.Mode of determining existence of partnership. In deter- mining whether a group of persons is or is not a firm, or whether a person is or is not a partner in a firm, regard shall be had to the real relation between the parties, as shown by all relevant facts taken together. Explanation 1.—The sharing of profits or of gross returns arising from property by persons holding a joint or common interest in that property does not of itself make such per- sons partners. Explanation 2.—The receipt by a person of a share of the profits of a business, or of a payment contingent upon the earning of profits or varying with the profits earned by a business, does not of itself make him a partner with the persons carrying on the business and, in particular, the receipt of such share or payment—......