Deed and Conveyancing

Definition

History of Conveyancing

Deed

Essential elements of Conveyance/Deed

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Contents of testatum
 Joinder, Non-Joinder and Mis-joinder
Order 1 of the Code of Civil Procedure Code, 1908 deals with all these. Order 1 Rule 1
deals with joined of plaintiffs and Order 1 Rule 3 deals with the joinder of defendants.

Joinder of parties
Order 1 rule 1 specifies that any all persons may be joined as plaintiffs in the case in
which any right to relief in respect or arising out of the same transaction or series of
the same is alleged. It also specifies that the plaintiffs can also be joined if they bring in
a common question of law or fact.
In Iswar Bhai v. Harihar Behera, it was held by the Supreme Court that the primary
objective of Rule 1 is to avoid multiplicity of proceedings and any unnecessary costs.

Joinder of defendants
Rule 3 of the Order 1 provides for this and states all persons may be joined in one suit
as defendants if the right to relief alleged to exist against them arises out of the same
transaction and the case if such of a character that if separate suits were brought
against such persons, any common question of law or fact would arise.

Rule 2 and 3A (plaintiff and defendant respectively) Court has power to order separate
trials if it feels that the joinder may embarrass or delay the decision.

Non-Joinder or Misjoinder of Parties:

It has been specified under Rule 9 of Order 1 whereunder if a necessary party to the
suit has not been joined as party to the suit, then that is a case of non-joinder. A
misjoinder of parties occurs when any parties as under Rule 1 or Rule 3 are joined and
they are neither necessary or proper parties, then it is case of misjoinder of parties.

The general rule is that such should not create an effect of dismissal of shit, however
the same does not apply in case of non-joinder of necessary party.
Case-
Objections as to non-joinder or misjoinder under Rule 13 of the CPC

Case Name: Church of Christ Charitable Trust & Educational Charitable Society vs.
Ponniamman Education Trust
WRITTEN STATEMENT
PLEADING+FUNDAMENTAL+PLAINT
 NECESSARY AND PROPER PARTY

Under Order 1 of CPC, provisions regarding the necessary and proper parties are provided.

A “necessary party” is a party who ought to have been joined as a party and in whose absence
no effective decree could be passed at all by the court. If a “necessary party” is not
impleaded, the suit itself is liable to be dismissed.

A “proper party” is a party who, though not a necessary party, is a person whose presence
would enable the court to completely, effectively and adequately adjudicate upon all matters
in dispute in the suit, though he need not be a person in favour of or against whom the decree
is to be made.

Distinction between necessary and proper party:

There are some distinctions between the necessary party and proper party, which are as
follows:-

1. Necessary party is one whose presence is indispensable to the constitution of the suit,
whereas, in case of a proper party, it is not so.
2. A necessary party is without whom no effective order can be passed, whereas, A proper
party is one, in whose absence an effective order can be passed.

However, like Necessary party, the presence of a proper party is also necessary for complete
and final decisions on the question involved in the preceding. His presence, however, enables
the Court to adjudicate more "effectively and completely".

In case of Kasturi versus Iyyamperumal, AIR 2005 SC 2813 the two test have been
provided for determining the question whether a particular party is a necessary party to the
proceeding OR not:-

1. There must be right to some relief against such party in respect of the matter involved in
the proceeding in question; and

2. It should not be possible to pass an effective degree in the absence of such a party.

* There are some example of the necessary party and proper party:-

Necessary parties:-

 In a suit for partition, all sharers are necessary party,

 In a suit for the declaration to set aside public auction, purchase of property in a
public auction is a necessary party,
 In an action against selection and appointment by an authority, candidates who are
selected and appointed are directly affected and, therefore, they are necessary parties

Proper parties:-

 In a suit for possession, by a landlord against his tenant, a sub-tenant is only a proper party,

 In a suit for partition, by a son against their father, grandsons are proper parties to the suit,

 In a land acquisition proceedings, the local authority for whose benefit land in sought to be
acquired by the Government is a proper party.
 COMPLAINTS

POWER OF ATTORNEY
AMENDMENTS OF PLEADING
REPRESENTATIVE SUIT
 Defences in a civil suit

In a civil case, when a plaint is filed, defendant files his written statement. Written statement
is a statement of defences in which the defendant deals with every material fact alleged by the
Plaintiff in the plaint and also sets any new facts which tells in his favour, adding such
objection as he wishes to take to the claim.

Following are the common defences available in a civil case:

Limitation

The law of limitation specifies the statutory time frame within which a person may initiate a
legal proceeding or a legal action can be brought. If a suit is filed after the expiry of the time
prescribed it will be barred by the Limitation. It means that a suit brought before the Court
after the expiry of the time within which a legal proceeding should’ve been initiated will be
restricted.

Jurisdiction

Jurisdiction can be defined as the limit of a judicial authority or the extent to which a court of
law can exercise its authority over suits, cases, appeals etc. The rationale behind introducing
the concept of jurisdiction in law is that a court should be able to try and adjudicate only in
those matters with which it has some connection or which fall within the geographical or
political or pecuniary limits of its authority.

In India, there are mainly 5 types of jurisdiction which can be classified as follows:

 Subject-matter jurisdiction: It can be defined as the authority vested in a court of law to

try and hear cases of a particular type and pertaining to a particular subject matter.

 Territorial jurisdiction: Under this type of jurisdiction, geographical limits of a court’s

authority are clearly delineated and specified. It cannot exercise authority beyond that
territorial/geographical limit.

 Pecuniary jurisdiction: Pecuniary means ‘related to money’. Pecuniary jurisdiction tries to

address whether a court of law can try cases and suits of the monetory value/amount of
the case or suit in question.
 Original jursidiction: It refers to the authority of a court to take cognizance of cases which
can be tried and adjudicated upon in those courts in the first instance itself.

 Appellate jurisdiction: It refers to the authority of a court to rehear or review a case that
has already been decided by a lower court. Appellate jurisdiction is generally vested in
higher courts.

Accord and Satisfaction

Accord refers to an agreement whereby a person agrees to accept some valuable

consideration in lieu of the right of action that he has against the other. Satisfaction means
actual payment of an amount of consideration so agreed to when there is an agreement, and it
is satisfied by its executors, the agreement is termed as an accord and satisfaction, and it
discharged the tort. Where only damages are to be recovered, accord and satisfaction is a
good plea, i.e., action for personal injuries, actions for libel.

Acquiescence

Acquiescence occurs when a person knowingly stands by without raising any objection to the
infringement of his or her rights, while someone else unknowingly and without malice
aforethought acts in a manner inconsistent with their rights. As a result of acquiescence, the
person whose rights are infringed may lose the ability to make a legal claim against the
infringer, or may be unable to obtain an injunction against continued infringement. But to
deprive a man of his legal remedies, there must be something more than mere delay.

Laches

Laches is based upon the  equitable principle that aids the vigilant and not those who slumber
on their rights. It is defined as neglect to assert a right or claim which, taken together with the
lapse of time and other circumstances, caused prejudice to the adverse party. It is essentially
neglect for an unreasonable and unexplained length of time under circumstances permitting
diligence, to do what in law, should have been done long ago.

Res judicata

Res means “subject matter” and judicata means “adjudged” or decided and together it means
“a matter adjudged”. In simpler words, the thing has been judged by the court, the issue
before a court has already been decided by another court and between the same parties.
Hence, the court will dismiss the case as it has been decided by another court. Res judicata
applies to both civil and criminal legal systems. No suit which has been directly or indirectly
tried in a former suit can be tried again.

Estoppel

Estoppel is based on the principle that it would unjust, if a person intentionally by conduct or
in any other manner has induced other person to believe and act upon such a representation,
neither he or those representing can in a subsequent Court proceedings deny the truth.  The
accused does through omission, act or declaration. Parties use the doctrine of estoppel as a
defence in a court of law and not as a cause of action. 

Abatement

At common law an plea in abatement, was a defence to legal proceedings, which did not

contest the principle of the plaintiff's right to relief, but contended that the plaintiff had made
a procedural error, and needed to bring fresh proceedings, which followed the correct
procedure. The objection could deal with (among others) place, time, or method of assertion.

Illegality

Ex turpi causa non oritur actio ("from a dishonorable cause an action does not arise") is
a legal doctrine which states that a plaintiff will be unable to pursue legal relief and
damages if it arises in connection with their own tortious act. Particularly relevant in the law
of contract, tort and trusts, ex turpi causa is also known as the illegality defence, since a
defendant may plead that even though, for instance, he broke a contract, conducted himself
negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality
cannot sue.

Justification

Justification, which really should be called a defence of “truth", has had a long history. For a
long time, truth has been a defence to civil proceeding for defamation under the title
“justification”. The defence that the words alleged to be defamatory are true, is a common
law defence. In order to succeed in the defence of justification, the defendant must prove the
truth of the words complained of, not only in their literal meaning, but also in their inferential
meaning or innuendo.