Anticipatory Bail

The right to liberty is the natural right and also the fundamental right of an individual. However, a person has to
respect the rights of others recognized by law like the inviolability of their body and their property. When a person is
reasonably suspected to have committed an offence the machinery of law is set in motion to arrest him and to bring
him to trial and punish him if found guilty. The act of arrest deprives a man of his liberty. Bail sets him free on
securing his promise to take trial at a future date and to undergo punishment if found guilt

Introduction
Bail means temporary release of an accused person awaiting trial, sometimes on condition that a sum of money is
lodged to guarantee their appearance in court. In other words release or secure the release of a prisoner on
payment of bail. It may be defined as Security. Such as cash, a bond, or property, pledged or given to a court by or on
behalf of one accused of committing a crime, to obtain release from incarceration and to ensure the person's future
appearance in court when required during the criminal proceeding. Bail is money or some property that is deposited
or pledged to a court, in order to secure the release from custody or jail of a suspect who has been arrested, with
the understanding that the suspect will return for their trial and required court appearances.

Purpose
The object of arrest and its detention of the accused person is primarily to secure his appearance at the time of trial
and to ensure that in case he is found guilty he is available to receive the sentence. If his presence at the trial could
be reasonably ensured otherwise than by his arrest and detention, it would be unjust and unfair to deprive the
accused of his liberty during the pendency of the criminal proceedings against him. The provisions regarding the
release of the accused person on bail are aimed at ensuring the presence of accused at his trial but without
unreasonably and unjustifiably interfering with his liberty.

There is no definition of bail in the Code, although the terms "bail able offence" and "non-bail able offence" been
defined in Sec.2a of the Code. Bail is the amount of money defendants must post to be released from custody until
their trial. Bail is not a fine. Its not supposed to be used as punishment. The purpose of bail is simply to ensure that
defendants will appear for trial and all pretrial hearings for which they must be present. In bail, we pay a set amount
of money to obtain our release from police custody. As part of our release, we promise to appear in court for all of
our scheduled criminal proceedings. If we show up to court as promised, bail amount will be refunded or returned.

Types of Bail
With the Constitution of India, there is one basic rule with the law as Bail and not Jail. Thus, everyone who is accused
of an offence Civil or Criminal has a right to apply for Bail. Only exception for it is if the said or accused is a repeat
offence maker or other is a dire possibility of the fleeing away from justice, intimidating the witness or the crime is
grave enough. Bail is the kind of security that you provide to the law for them to release you. It is a surety that you
would be available in court as and when required in future. As mentioned before bail is the right, its right to freedom
and that must apply for it. There are different categories of bails applicable depending upon the type of charges.
Interim Bail- is for certain period of time granted before hearing to the prosecution.
Permanent Bail- permanent in nature and granted only after hearing to the petitioner a well as the prosecution.
Bail Before Arrest- it is granted when the court feels that the accused is falsely involved in the case and an arrest
would affect his honor and dignity badly.
Bail On Arrest under Section 497 of Cr. Pc. Bail can be granted for both bail able as well as non bail able offences
after the accused is arrested against a charge.
Protective Bail- A bail granted so that the accused can approach the provincial court for getting a pre-arrest bail
without touching its merit.
Directly Approaching Superior Court- the Superior Courts can grant pre-arrest bail in some appropriate cases
directly if the accused has been deprived or prevented of approaching lower courts.
Bail For The Convict- Once convicted, bail is granted to the accused even if the appeal for the same is accepted if
court finds that there are considerable grounds for his/her release.

Anticipatory Bail
The concept of Anticipatory Bail comes into place when the accused may rightfully fear arrest in cases of cognizable
offences. Bail is a legal relief that a person may be entitled to in order to get temporary freedom until his case is
disposed of. Depending on the gravity of the allegations, a person may be able to avoid arrest altogether. However,
there are cases in which arrest is made and the accused is set free as per the provisions of the bail as given under the
Criminal Procedure Code. In cases of Criminal cases, especially those pertaining to dowry, anticipatory bail comes as
a relief to many accused person. It is literally applied for in anticipation of arrest.
Application of Anticipatory Bail

Procedures
The public prosecutor will talk to the police officer concerned. If there is no FIR filed, the PP would be of the view
that there were no grounds for granting anticipatory bail. The judge will agree to this and your lawyer will be verbally
asked to withdraw the anticipatory bail. The lawyer will make an oral prayer for seven days pre-arrest notice in case
the police formulates an intention to arrest. In all the above cases, judge will grant plea. An order will be passed
accordingly.f the bail application is rejected in the Sessions Court then it would be applied in High Court. If the High
Court also rejects the bail, then further application on Supreme Court is permitted. In cases when the FIR has been
filed, the Investigating officer will send a notice of arrest. As soon as that notice is received, one should apply for
anticipatory bail following the same procedure as stated above.
The High Court or Court of Session may direct that any person who has been released on bail be arrested and
commit him to custody on an application moved by the complainant or prosecution in case any of the conditions
imposed by the Court are being violated.
Kanshi ram vs. State of Punjab
The petitioner is no longer entitled to statutory bail under Section 167(2) of the Code of Criminal Procedure.
Petitioner has filed an application for grant of statutory bail under Section 167(2) due to default of the prosecution.
Shri Mehafuz Ali Khan vs. Cbi Police Station
Illegal and therefore, the petitioner is entitled for the statutory bail under Section 167(2) of the Code of Criminal
Procedure. Charge sheet, the petitioner was entitled for statutory bail notwithstanding that the charge sheet came
to be filed subsequently.

Object Of Granting Anticipatory Bail

Right to life and personal liberty is an important right granted to all the citizens under Article 21 of the Indian
Constitution and it is considered as one of the precious right. Under Indian criminal law, there is a provision for
anticipatory bail under Section 438 of the Criminal Procedure Code 1973.

The Law Commission of India, in its 41st Report dated September 24, 1969 pointed out the necessity of introducing a
provision in the Code of Criminal Procedure enabling the High Court and the Court of Sessions to grant anticipatory
bail. This provision allows a person to seek bail in anticipation of an arrest on accusation of having committed a non-
bailable offence. The very basic purpose of insertion of this provision was that no person should be confined in any
way until and unless held guilty.

Provision Relating To Anticipatory Bail Under Criminal Code Of Procedure

Where any person has a reason to believe that he may be arrested on accusation of having committed a non-bailable
offence, he may apply to the High Court or the Court of Session for a direction under this section that in the event of
such arrest he shall be released on bail and the court shall provide him anticipatory bail after taking into
consideration the following factors, namely:

1. The nature and gravity of the accusation

2. The antecedents of the applicant including the fact as to whether he has previously undergone
imprisonment on conviction by a Court in respect of any cognizable offence

3. The possibility of the applicant to flee from justice.

4. Where the accusation has been made with the object of injuring or humiliating the applicant by having him
so arrested, either reject the application forthwith or issue an interim order for the grant of anticipatory bail.
Where the High court or court of session grants interim bail to the applicant then the court forthwith a show cause
notice attested with a copy of such order, served to the Public Prosecutor and the Superintendent of Police, with a
view to give the Public Prosecutor a reasonable opportunity of being heard when the application shall be finally
heard by the Court. The presence of the applicant seeking anticipatory bail shall be obligatory at the time of final
hearing of the application and passing of final order by the Court, if on an application made to it by the Public
Prosecutor, the Court considers such presence necessary in the interest of justice.

Who Is Eligible To Obtain Anticipatory Bail

When any person has a reason to believe that there is a chance to get him arrested on false or trump up charges, or
due to enmity with someone, or he fears that a false case is likely to be built up against him, he has the right to move
the court of Session or the High Court under Section 438 of the code of Criminal Procedure for grant of bail in the
event of his arrest, and the court may, if it thinks fit, direct that in the event of such arrest, he shall be released on
bail
Conditions For Obtaining The Anticipatory Bail

The High Court or the court of the session may include such conditions in the light of the facts of the particular
case, including:

• A condition that the person shall make himself available for interrogation by the police officer as and when
required;

• A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or
to any police officer;

• A condition that the person shall not leave India without the previous permission of the court. Supreme
Court while dealing the case of Siddharam Satlingappa Mhetre3, held certain conditions imposed by High
Court to be not required & contrary to provisions of anticipatory bail.

Cancellation
An accused is free on bail as long as the same is not cancelled. The High Court or Court of Session may direct that any
person who has been released on bail to be arrested and commit him to custody on an application moved by the
complainant or the prosecution.

Procedure For Getting An Anticipatory Bail

For getting the anticipatory bail the person may approach the High Court or the Sessions Court. As soon as the
person apprehends that they may be arrested under section 406, 434 or under section 498A they should consult a
good lawyer for grant of an anticipatory bail. The Lawyer will then file a Vakalatnama in the appropriate district
court with the required anticipatory bail petition.

Then there will be a hearing scheduled by the court for the petition. Many a times it happens that the District and
Sessions Court denies the Anticipatory Bail, then the person must and shall appeal in the High Court and the High
Court generally grants the Anticipatory Bail. After the bail is granted there are few formalities that have to be
followed before the person is finally out on Bail. The Court has the power to put some conditions and restrictions.

These are

• A condition that the person shall make himself available for interrogation by a police officer as and when
required,

• A condition that the person shall not, directly or indirectly, make any inducement, threat or promise to any
person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or
to any police officer,
 • A condition that the person shall not leave India without the previous permission of the Court

Such other condition as may be imposed under Sub-Section (3) of section 437, as if the bail were granted under that
section.

Conclusion
Anticipatory Bail was introduced in the Code to prevent violation of personal liberty of a person. Now it has become
a tool which is exercised by the people to escape from their criminal liability. That is why utmost care should be
exercised by the Courts while granting it so as to prevent the abuse of this special privilege.

The Hon’ble Supreme Court of India has emphasized on this point through certain judgments. Anticipatory bail is a
device to secure the individual’s liberty, it is neither a passport to the commission of crimes nor a shield against any
kinds of accusation. So it should be granted only to the people who actually deserve it.

Anticipatory Bail Application

IN THE COURT OF SESSIONS FOR GREATER BOMBAY CRIMINAL APPELLATE JURISDICTION

ANTICIPATORY BAIL APPLICATION NO. _______ OF 2001

ABC S/o PQR

Indian inhabitant

residing at ___________ ........ Petitioner

V/s

1. State of Maharashtra at the instance of The Inspector of Police In-charge of ________Police Station ........
Respondent

CRIMINAL ANTICIPATORY BAIL APPLICATION UNDER SECTION 438 OF THE CRIMINAL PROCEDURE CODE, 1973.

To

THE HON’BLE PRINCIPAL JUDGE AND HIS COMPANION JUDGES OF THIS HON’BLE COURT.THE HUMBLE PETITION OF
THE PETITIONER ABOVENAMED:MOST RESPECTFULLY SHEWETH:

1. The petitioner is a citizen of India. The petitioner is about ___years old and is unmarried. The petitioner is a
permanent resident of Mumbai, residing at the address as mentioned in the cause title since birth. The petitioner is
the son of ____________, who is the co-owner of the aforesaid premises. The petitioner’s father shares the said
premises amongst others with one of the petitioner’s uncle named LMN. The petitioner’s father and the said LMN
are also partners in a firm called M/s. _____________ situated at _______________________.

2. The petitioner’s father and the said LMN are involved in various civil disputes relating to the said partnership
firm, the residential premises and other commonly held properties. There are many cases and proceedings pending
in different courts in Mumbai relating to the same. The said LMN has also time and again dragged the petitioner’s
father and his family to the Criminal courts and/or police station. However on each of the occasions the said LMN
has met with no success but continues to harass the petitioner, his parents and other family members by lodging
false, frivolous and mischievous complaints one after the other.

3. The petitioner understands that the said LMN has filed a complaint on or around _________ in the
____________ under Sections _____________ of the Indian Penal Code against the petitioner’s father and six of his
family members including the petitioner and two female and one male staff working for the petitioner’s father at the
aforesaid premises. The petitioner says and submits that the said complaint has been filed by the said LMN as a
continuation of the process of harassment and vendetta against the petitioner’s father and with a view to coerce
and threaten the petitioner into submission in relation to the civil disputes pending between the petitioner and the
said LMN. The petitioner states that on the said date of __________, the said LMN had stolen the petitioner’s mobile
phone and the petitioner had lodged an N.C. complaint (being complaint No._________ of 2001) at the _________
police station. The complaint by LMN is merely a counter blast.

4. The petitioner apprehends that on the basis of the allegations contained in the said counter complaint of LMN
the police authorities are likely to arrest / detain him. The petitioner is a respectable citizen of India and is well
known in the locality where he stays. The petitioner is an educated youth being _________ (mention the educational
qualifications). The petitioner is an Income-tax assessee. The petitioner has acquired his reputation which would be
tarnished if he is arrested and/or detained. The petitioner has done nothing to warrant that his reputation to be
harmed at the behest of his disgruntled uncle, i.e. said Mr. LMN.

5. The petitioner says that the nature of disputes between his father and his uncle are civil and the courts are fully
seized of the same and as a law abiding citizen of the country the petitioner shall abide by the verdict of the
Honorable courts.

6. The petitioner says and submits that there is no allegation against him requiring custodial interrogation and
therefore prays that in the event of the petitioner’s arrest by the _____________Police Station on the basis of the
aforesaid allegations made by LMN, this Honorable court be pleased to release him on Bail on such terms and
conditions and on such amount as this Honorable court may deem fit and proper. The petitioner undertakes to
extend his fullest co-operation to the police and report at the police station as and when required for any
investigation. The petitioner has his roots in Mumbai and is living in Mumbai since his birth. The petitioner’s father is
the co-owner of immovable property _________________________ (describe the immovable property and give its
address in detail). The petitioner, his brother and his parents are all residing together at ______________________
(Give residential address in full). There is no apprehension of the petitioner absconding. There is no threat of the
petitioner tampering with the evidence in any manner whatsoever.

The petitioner therefore prays:

a. that in the event of the arrest of the petitioner by the __________ Police station on charges arising out of the
complaint made by LMN, the Inspector of Police be directed to release the petitioner on bail of such amount and on
such terms and conditions as this Honorable court may deem fit and proper;

b. for such other and further reliefs as may be deemed fit and proper in the facts and circumstances of the case.

Mumbai dated this ________ day of _________, 2001.

Petition drawn by: Petitioner

Advocate for the Petitioner

VERIFICATION

I. ABC S/o PQR, the petitioner above-mentioned, do solemnly affirm that what is stated in this petition save
and except legal submissions is true to my personal knowledge.

Solemnly affirmed at Mumbai on) this ______ day of November, 2001)

Petitioner

Before me

Advocate for the petitioner.

Application under Section 125 Cr.P.C

• The objective to enforce the social duty to prevent Vagrancy and Destitution, leading to crimes.

• Maintenance granted irrespective of personal laws.

• It is a tentative remedy, the proceedings being summary.

• An economic umbrella to the weaker, having no sufficient means to maintain themselves.

 • The Wives, Children and Parents being the Beneficiaries.

The Inclusive Definition of Wife

• Wife includes a woman who has not remarried after divorce.

• The object is to frustrate the unscrupulous husbands from making easy divorces under personal law.

• The Shah Bano Case.

• Consequently the retrograde legislation--The Muslim Women (Protection of Rights on Divorce) Act, 1986

• S.C. resolving the controversy in Daniel Latifi V. UoI, 2001 determining the rights of Muslim women.

The Wife to be a Legally Married Woman

• The legality of marriage decided under personal law.

• In a case of illegality due to bigamy, the victim has to suffer and the perpetrator goes scot-free.

• The requirement of legal marriage is frustrating the very objective.

• Plea of Ignorance of first marriage refused by court stressing the paramount nature of legislative intention

• The need to delete this precondition in a country where most marriages could be held illegal due to manifold
reasons.

• The judicial prejudice in favour of marriage.

Maintenance to the weaker means

The patriarchal social context leading the legislature and the judiciary to provide for maintenance to:

• The wife by the husband,

• The Child by its father, and

• The father and the mother by the son.

• The silence of law respecting the liability of the daughter.

• Supreme Court making daughter duty-bound to maintain her parents, stressing social obligation.

• (Vijaya Manohar Arbat v/s Kashirao Rajaram Sawai.)

The determination of the Quantum

• Inflation and increased standard of living paving way to the removal of ceiling.

• Unable to maintain herself relates to the actual and separate income of the wife and not the possible or
potential income.

• The fixing of the amount shall go beyond the expenses for her primary needs.

• The date of effect shall be from the date of application, considering the delay.
 • Besides personal income, the income from the corpus property of the liable person also shall be taken into
account.

Eligibility to Maintenance

• Living in adultery, means not a single act, shall not be used in a way to harass the wife.

• Wife must not refuse, without sufficient reasons, to live with her husband.

• The wife is not living separately by mutual consent.

• Person claiming maintenance must not be capable of maintaining herself. (Abdul Munaf v/s Salima, 1979.
Cant, H.C.)

• The wife is not living separately by mutual consent

Procedure: Maintenance Order

• The amount to be modestly consistent with the status of the family.

• The removal of ceiling of Rs 500/- per month and the fixing of time-frame through Amendment Act, 2001

• Warrant is issued on every breach of the order for levying the amount.

• The imprisonment of one month is a last resort when recourse to attachment and sale fail

• The imprisonment is to pressurize enforcement and not a mode to satisfy the liability.

Procedure: Cancellation of Order:

• The wife is living in adultery.

• Without sufficient reasons she refuses to live with the husband.

• They are living separately by mutual consent.

• On a decision of a competent civil court.

• She remarries after divorce, the order is cancelled w.e.f. the date of remarriage.

• On complete compliance with the order.

Order for maintenance of wives and children (Section 125 of CrPc)

Legal provisions regarding order for maintenance of wives and children under section 125 of the Code of Criminal
Procedure, 1973.

The maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy leading to the
commission of crime and starvation by compelling those who can do so to support those who are unable to support
themselves and who have a moral claim to support. The provisions of maintenance of the Code of Criminal
Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the
parties.
Persons entitled to claim maintenance: According to Section 125(1) of the Code, the following persons are entitled
to claim maintenance under certain circumstances:
Wife:
As per Section 125(l) (a) of the Code, if any person having sufficient means neglects or refuses to maintain his wife,
unable to maintain herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such
person to make a monthly allowance for the maintenance of his wife at such monthly rate, as such Magistrate thinks
fit, and to pay the same to such person as the Magistrate may from time to time direct.
Here 'wife' includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not
remarried.

The wife may be of any age-minor or major. 'Wife' for the purposes of Section 125 means a legally married woman.
The legality of the marriage would be governed by the personal laws applicable to the parties. If the fact of legally
valid marriage is disputed, the applicant will have to prove marriage. A marriage solemnized by exchange of garlands
was held invalid.

Under Section 125(l)(a) of the Code, maintenance allowance cannot be granted to every wife who is neglected by
husband or whose husband refuses to maintain her, but can only be granted to a wife who is unable to maintain
herself but not a wife who is maintaining herself with some difficulty.

By the phrase 'unable to maintain herself', it is not meant that she should be absolutely destitute and should be first
on the street, should beg and be in tattered clothes and then only she will be entitled to move an application under
Section 125 of the Code.

If a person is willing to maintain his wife in accordance with his civil obligation, there is neither neglect or refusal.
Where the husband is making payment of some amount to the wife but the amount is not sufficient to meet her
basic necessaries of life, it is clearly 'neglect' or refusal to maintain the wife within the meaning of Section 125 of the
Code.

In Savitaben Somabhai Bhatiya v. State of Gujarat, it was held that Section 125 of the Code has been enacted in the
interest of a wife and one who wants to take the benefit under sub-section (l)(a) of Section 125 has to establish that
she is the wife of the person concerned.

The issue can be decided only by a reference to the law applicable to the parties. It is only when such a relationship
with reference to personal law is established that the application for maintenance can be maintained. The issue
whether Section 125 is attracted or not, cannot be answered except by a reference to the appropriate law governing
the parties.

Marriage of a woman, even if it is in accordance with the Hindu rites with a man, having a spouse living at the time
of the marriage, is a nullity in the eye of law. The lady will not get the status of a legally wedded wife and accordingly
not entitled to the benefit of Section 125 of the Code of Criminal Procedure.

The wife is not entitled to receive an allowance from her husband in three cases, i.e.,:

i. if she is living in adultery, or

ii. if she refuses to live with her husband and without any sufficient cause, or

iii. if they are living separately by mutual consent.

Section 125 of the Code gives effect to the fundamental and natural duty of a man to maintain his wife. Section 125
provides a statutory right and cannot be affected by personal law. The right conferred upon the wife by the
provisions of Section 125 is independent of personal law and to claim protection of Mohammedan Law in derogation
of the statutory provisions of the Code is not permissible. A wife is entitled to maintenance under Section 125,
irrespective of the fact that she is not entitled to maintenance under the personal law.

In Chaturbhuj v. SitaBai, the respondent had filed an application under Section 125 of Cr.P.C. claiming maintenance
from the appellant. The appellant and the respondent had entered into a marital knot about four decades back and
for more than two decades they were living separately. In the application it was claimed by the respondent that she
was unemployed and unable to maintain herself.

The object of the maintenance proceedings is not to punish a person for his past neglect, but to prevent vagrancy by
compelling those who can provide support to those who are unable to support themselves and who have a moral
claim to support.

The phrase unable to maintain herself would mean that means available to the deserted wife while she was living
with her husband and would not take within itself the efforts made by the wife after desertion to survive somehow.

Under the law the burden is placed in the first place upon the wife to show that the means of her husband are
sufficient. There is no dispute that the appellant has the requisite means. But there is an inseparable condition which
has also to be satisfied that the wife was unable to maintain herself.

These two conditions are in addition to the requirement that the husband must have neglected or refused to
maintain his wife. The appellant has placed material to show that the respondent/wife was earning some income.
This is not sufficient to rule out application of Section 125, it has to be established that with the amount she earned
the respondent-wife was able to maintain herself.

Whether the deserted wife was unable to maintain herself, has to be decided on the basis of the material placed on
record. Where the personal income of the wife is insufficient, she can claim maintenance under Section 125.

The test is whether the wife is in a position to maintain herself in the way she was used to in the place of her
husband. The conclusions of Courts that respondent-wife unable to maintain herself was factual and cannot be
interfered with in absence of perversity.

In Mohd. Ahmed Khan v. Shah Bano Begum, it is declared that a Muslim husband having sufficient means must
provide maintenance to his divorced wife who is unable to maintain herself. Such a wife is entitled to the
maintenance even if she refuses to live with the Muslim husband because he has contracted another marriage
within the limits of four wives allowed to him by Quran.

The Bench of the Supreme Court declared that a Muslim divorced woman who cannot maintain herself is entitled to
maintenance from her former husband till the time she gets remarried.
They rejected the plea that maintenance is payable for the iddat period only. Pointing to the ayats of the Quran, the
judges declared that the Quran imposes an obligation to provide maintenance to the divorced wife.

The judges also rejected the contention that deferred Mahr (dower) is a payment on the divorce of a wife and hence
such payment under the personal law excludes the payment of any maintenance by the husband to the wife. They
stated that Mahr is an amount which the wife is entitled to receive from the husband in consideration of the
marriage. They observed that according to Quran, the dower is a consideration and mark of respect for the Muslim
woman instead of being a consideration for divorce.

The learned judges stated that the religion professed by a spouse has no place in the scheme of Section 125 of the
Code of Criminal Procedure which is a measure of social justice founded on an individual's obligation to the society
to prevent vagrancy and destitution.

The Supreme Court has held that if there is any conflict between personal law and Section 125 of the Code, then it is
clear from the language of Section 125 that it overrules the personal law. This judgment created a storm and priest
of Islam started agitation. Then the Central Government enacted the Muslim Women (Protection of Rights on
Divorce) Act, 1986.
The divorced Muslim wife's claims are now to be governed by this Act. It is possible for the Muslim spouses to opt to
be governed by the provisions of the Code of Criminal Procedure by virtue of a provision in that Act.

According to that Act, a divorced Muslim wife whose relatives are incapable of maintaining her as required under
her personal law can straight away apply to the State Wakf Board for maintenance.

Since the Muslim Women (Protection of Rights on Divorce) Act, 1986 does not contain any provision excluding
application of the Family Courts Act a claim for maintenance even by a divorced Muslim woman under Chapter IX
(Sections 125 to 128) of the Code of Criminal Procedure shall be to the Family Court.

The Code of Criminal Procedure must override his personal law if it conflicts with it. A proceeding under Sections 24
and 25 of the Hindu Marriage Act, 1955 could not operate as a bar to a proceeding under Section 125 of the Code. In
the same way Section 18 or 20 of the Hindu Adoption and Maintenance Act, 1956 does not override the provisions
of relief of Section 125 of the Code.

he Hon'ble Supreme Court in a path breaking judgment Chanmuniya Vs. Chanmuniya Virendra Kumar Singh
Kushwaha and Anr1 held that "Where partners lived together for a long spell as husband and wife, a presumption
would arise in favour of a valid wedlock"

Child:
According to Section 125(1)(b) of the Code of Criminal Procedure, if any person having sufficient means neglects or
refuses to maintain his legitimate or illegitimate minor child, whether married or not, unable to maintain itself or as
per Section 125(1)(c) of the Code, his legitimate or illegitimate child (not being a married daughter) who has attained
majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, a
Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly
allowance for the maintenance of such child, at such monthly rate, as such Magistrate thinks fit, and to pay the same
to such person as the Magistrate may from time to time direct.

However, the Magistrate may order the father of a minor female child referred to in Section 125(1)(b) to make such
allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if
married, is not possessed of sufficient means. Here 'minor' means a person who, under the provisions of the Indian
Majority Act, 1875 is deemed not to have attained his majority.

A Muslim minor girl would be entitled to get maintenance from her father even after the enforcement of Muslim
Women (Protection of Rights on Divorce) Act, 1986.
The word Child is not defined in the Code. It means a male or female person who has not reached full age, i.e., 18
years as prescribed by the Indian Majority Act, 1875 and who is incompetent to enter into any contract or to enforce
any claim under the law.

Father or mother:
According to Section 125(l)(d) of the Code of Criminal Procedure, if any person having sufficient means neglects or
refuses to maintain his father or mother, unable to maintain himself or herself, a Magistrate of the first class may,
upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his
father or mother, at such monthly rate, as such Magistrate thinks fit, and to pay the same to such person as the
Magistrate may from time to time direct.

The daughter whether married or unmarried would also be liable to maintain the parents as the Indian society casts
a duty on the children to maintain the parents and this social obligation equally applies to a daughter.

Section 125 of the Code does not clearly state whether 'father' or 'mother' include 'adoptive father' or 'adoptive
mother' or 'stepfather' or 'stepmother'. According to Section 3(20) of the General Clauses Act, 1897, the word
'father' shall include an 'adoptive father', and though the term 'mother' has not been similarly defined, it has been
held that the term 'mother' includes adoptive mother.

Though the 'mother' shall not include 'stepmother', a childless stepmother may claim maintenance, under Section
125 of the Code, from her stepson provided she is a widow or her husband, if living, is also incapable of supporting
and maintaining her and if has natural born sons and daughters and her husband is alive and capable of earning, she
cannot claim maintenance from her stepson.

If there are two or more children the parents may seek the remedy against anyone or more of them, at place or
places where they live.

As per Section 125(1) of the Code, only a husband or a father or a son or a daughter, as the case may be, to pay
maintenance to the respective persons, namely, wife, child, father or mother, under certain circumstances. Section
125 does not contemplate the mother to pay maintenance to father or son and daughter, as the case may be.
Interim maintenance:

As per second proviso to Section 125(1) of the Code of Criminal Procedure, during the pendency of the proceeding
regarding monthly allowance for the maintenance under Section 125(1) of the Code, order such person to make a
monthly allowance for the interim maintenance of his wife or such child, father or mother, and the expenses of such
proceeding which the Magistrate considers reasonable, and to pay the same to such person as the Magistrate may
from time to time direct.

Further, an application for the monthly allowance for the interim maintenance and expenses for proceeding under
the second proviso shall, as far as possible, be disposed of within sixty days from the date of the service of notice of
the application to such person.
Essential conditions for granting maintenance:

i. Sufficient means to maintain:

According to Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must
have sufficient means to maintain the person or persons claiming maintenance. Here, the expression 'means' does
not signify only visible means such as real property or definite employment.

If a man is healthy and able-bodied, he must be held to possess the means such as real property or definite
employment. The words 'sufficient means' should not be confined to the actual pecuniary resources but should have
reference to the earning capacity.

Earning capacity or ability to earn requires something more than a fit state of mind or body. It requires opportunity
to earn, education or experience and many a time finance, push and full. If a person is healthy and able-bodied, he
must be held to have the means to support his wife, children and parents. Capability of a person to pay must be
proved to fix the quantum of maintenance.

ii. Neglect or refusal to maintain:

As per Section 125(1) of the Code of Criminal Procedure, the person from whom maintenance is claimed must have
neglected or refused to maintain the person or persons entitled to claim maintenance.

Neglect means a default or omission in the absence of a demand whereas 'refuse' means a failure to maintain or a
denial of obligation to maintain after demand. A neglect or refusal to maintain may be by words or by conduct. It
may be expressed or implied. Neglect or refusal may mean something more than mere failure or omission. Burden of
proving neglect is on the claimant.

The expression wilful negligence is a question of law though it has to be decided on given facts. 'Wilful' means
designedly, deliberately of set purpose, that is to say, the mind and the overt action moving together.

When there is duty to maintain, mere failure or omission may amount to neglect or refusal. Maintenance means
appropriate food, clothing and lodging.
Person claiming maintenance must be unable to maintain himself or herself:
As the object of Section 125 of the Code is mainly to prevent vagrancy; the requirement to pay maintenance should
be only in respect of persons who are unable to maintain themselves. The inability of the wife to maintain herself is a
condition precedent to the maintainability of her application for maintenance.
As per Section 125(1) (a) of the Code, maintenance to a wife can be granted when she is unable to maintain herself.
Maintenance means appropriate food, clothing and lodging. By the phrase 'unable to maintain herself', it is not
meant that she should be absolutely destitute and should be on the street, should beg and be in tattered clothes.
The maintenance has to be determined in the light of the standard of living of the person concerned. The amount of
maintenance should be such that the woman should be in a position to maintain herself and that it should not be
much below the status which she was used to at the place of her husband.
The wife need not specifically plead that she is unable to maintain herself. The wife who is hale and healthy and is
adequately educated to earn for herself but refuses to earn and claims maintenance from her husband is entitled to
claim maintenance but that her refusal to earn under the circumstances would disentitle her to get full amount of
maintenance.

Special requirements where maintenance is claimed by wife:

The wife must not be living in adultery:

As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the
maintenance or the interim maintenance and expenses of proceeding, as the case may be, from her husband under
Section 125 if she is living in adultery. The term living in adultery has been consistently held to mean an outright
adulterous conduct where the wife lives in a quasi-permanent union with the man with whom she is committing
adultery.
Wife must not refuse without sufficient reasons to live with her husband:
According to' Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for
the maintenance from her husband, if she refuses to live with her husband. Wife must not refuse to live with her
husband without sufficient reason to get maintenance. What could be considered as a sufficient reason for the wife's
refusal to live with her husband would depend upon the facts and circumstances in each case.

Civil Court's finding as to desertion by wife is binding on the criminal Court hearing petition for maintenance. But, if
the civil Court comes to hold, while directing divorce, that the wife is not entitled to maintenance, it would not
deprive her of her right to claim maintenance in a criminal Court though the criminal Court has to consider the
decision of the civil Court. In the same way the civil Court's finding on a fact on which interim maintenance is
rejected by it is not binding on the criminal Court.
As per explanation to Section 125(3) of the Code, if a husband has contracted marriage with another woman or
keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him.
The wife must not be living separately by mutual consent:
As per Section 125(4) of the Code of Criminal Procedure, no wife shall be entitled to receive an allowance for the
maintenance from her husband if they are living separately by mutual consent.

A divorced wife cannot be characterised as a wife living separately by mutual consent. A divorced wife is a person
who lives separately from her former husband by virtue of a change in status consequent upon the dissolution of the
marriage.

A divorce decree by mutual consent to live separately cannot disentitle the wife to claim maintenance. The concept
of living separately by mutual consent arises so long as the marriage subsists and the parties agree to live separately
by consent. Where the marital relations have been terminated by an agreement, the wife would be entitled to claim
maintenance from her ex-husband so long she remains unmarried and is unable to maintain herself. However, in the
case of divorce by mutual consent if the wife had relinquished her right to maintenance, she cannot later claim
maintenance.

DNA Test for determination of paternity cannot be directed in a petition under Section 125.—In a proceeding under
Section 125 of Cr.P.C. the Magistrate was not justified in directing DNA tests of the child to determine paternity.

On failure to pay maintenance detention in prison could not exceed one month:
A warrant has to be issued under Section 125 (3) of the Code for payment of maintenance, when an application is
made by the person who has been held entitled to maintenance under Section 125 of the Code.

When such a warrant is issued for making payment of maintenance, it has to be levied as the amount due in the
manner provided for levying fines and if this warrant is not responded by making the payment, then the Magistrate
can order imprisonment and the imprisonment in no case can exceed one month. Therefore, it is immaterial
whether there were arrears of twelve months or of any other duration.

N THE COURT OF PRINCIPAL FAMILY JUDGE AT _________

CASE NO. __________ OF 20__

IN THE MATTER OF:

MRS. W_________ PETITIONER

VERSUS

MR. H __________ RESPONDENT

PETITION FOR MAINTENANCE UNDER SECTION 125 OF CRIMINAL PROCEDURE CODE

MOST RESPECTFULLY SHOWETH:

The Petitioner, above named submits as under:

1. That the Petitioner No. 1 is legally wedded wife of the Respondent.

2. That marriage of the Petitioner was solemnized with Respondent on __________ at ____________ according to
Hindu rites and ceremonies. The marriage was registered with the Registrar of marriages at ___________. After
marriage Petitioner No. 1 started residing at the matrimonial home. Certified copy of the extract from the concerned
register is attached herewith as Annexure A.

2. That for about four years, relation between Petitioner No. 1 and her husband Respondent were ordeal, but
thereafter the Respondent started treating her with cruelty.

3. That on __________ the respondent turned out the petitioner from the matrimonial home and since then she has
been compelled to live at her parental house.

4. That the respondent has never sent any money to the petitioner to meet her expenses and expenses of the minor
child.

5. That the petitioner having no source of income is unable to maintain herself and the child.

6. That the Respondent is a Government Employee and earning Rs. 55,000/- per month Net Salary.

7. That the Respondent has no other liability, while the Petitioner is dependent upon him for her day to day
expenses.

8. That the Petitioner is accordingly entitled to claim maintenance to meet her day to day expenses.

9. That this Court has the jurisdiction to entertain and try this petition as marriage between petitioner and the
respondent was solemnized here and the petitioners are living within the Jurisdiction of this Court.

10. In the facts and circumstances of case mentioned herein above this Hon'ble Court may graciously be pleased to:

PRAYER

That the Petitioner, therefore, prays:

a) the Respondent be directed to pay monthly allowance of Rs. 17500/- by way of Maintenance; and

b) Any other relief or reliefs which the court may deem proper under the circumstances be also awarded to the
petitioner.
PETITIONER

THROUGH ______________., Advocate

Place :

Date :

F.I.R. – under Section 154 Cr.P.C

What is First Information Report (FIR)

The first information report means an information recorded by a police officer on duty given either by the aggrieved
person or any other person to the commission of an alleged offence. On the basis of first information report, the
police commences its investigation. Section 154 of the Code of Criminal Procedure, 1973 defines as to what amounts
to first information.

The said section reads as under:-

154. Information in cognizable cases

1. Every information relating to the commission of a cognizable offence, if given orally to an officer-in-charge of
a police station, shall be reduced to writing by him or under his direction, and be read over to the informant;
and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by
the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such
form as the State Government may prescribe in this behalf.

2. A copy of the information as recorded under sub-section

(i) shall be given forthwith, free of cost, to the informant.

3. Any person aggrieved by a refusal on the part of an officer-

in-charge of police station to record the information referred to in sub-section (1) may send the substance of
such information, in writing and by post to the Superintendent of Police concerned, who if satisfied that such
information discloses the commission of a cognizable offence shall either investigate the case himself or
direct an investigation to be made by any police officer subordinate to him, in the manner provided by this
Code, and such officer shall have all the powers of an officer-in-charge of the police station in relation to that
offence.

The provision in section 154 regarding the reduction of oral statement to writing and obtaining signature of the
informant to it, is for the purpose of discouraging irresponsible statement about criminal offences by fixing the
informant with the responsibility for the statement he makes.

Refusal by the informant to sign the first information is an offence punishable under section 180 of the Indian Penal
Code. The absence of signatures on the first information report by the informant, however, is not necessary to the
extent that it will vitiate and nullify such report. The first information is still admissible in evidence.

In order to constitute an FIR in terms of section 154 of the Code. of Criminal Procedure, 1973 two conditions are to
be fulfiUed:-
(a) what is conveyed must be an information; and
(b) that information should relate to the commission of a cognizable offence on the face of it.

In other words, FIR is only a complaint to set the affairs of law and order in motion and it is only at the investigation
stage that all the details can be gathered. In one of the judgments, the Madhya Pradesh High Court observed that
the report of the crime which is persuading the police machinery towards starting investigation is FIR, subsequent
reports are/were written, they are not hit under section 161 of the Code of Criminal Procedure, 1973 and cannot be
treated as such.
Who can File an FIR?

First Information Report (FIR) can be filed by any person. He need not necessarily be the victim or the injured or an
eye-witness. First Information Report may be merely hearsay and need not necessarily be given by the person who
has first hand knowledge of the facts.

Where to File an FIR?

An FIR can be filed in the police station of the concerned area in whose jurisdiction the offence has occurred. A first
are to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and
bringing to book the guilty person.

Its secondary though equally important object is to obtain early information of an alleged criminal activity and to
record the circumstances before the trial, lest such circumstances are forgotten or embellished.

Why FIR should be filed promptly

This is the golden principle of law prescribed in the Code of Criminal Procedure, 1973 that the First Information
Report should always be filed promptly and without wasting any time. Such type of report gains the maximum
credibility and is always welcome and appreciated by the courts.

According to Supreme Court the FIR recorded promptly before the time afforded to embellish or do away with the
evidence is useful. It eliminates the possible chance of giving rise to suspicion.

Is there time duration fixed for Filing an FIR?

We have already emphasized this fact that as far as possible and practicable, every FIR should invariably be filed
promptly, expeditiously and without wasting any time. There may be circumstances where some concession of time
must be given in filing the FIR But there must be cogent reasons for reasonable delay in filing the FIR under the
compelling circumstances. Judges with lot of wisdom and experience can use their discretion judiciously and in the
interest of justice in each and every case. However, no possible duration of time can be fixed for applying the test of
reasonableness to the lodging of an FIR as we have already explained. It depends upon facts and circumstances of
each case. The delay in lodging the FIR as such is not fatal in law if the prosecution substantiated the factual
difficulties encountered by the persons lodging the report.

Following are the reports or statements which do not amount to be an FIR:

1. A report or a statement recorded after the commencement of the investigation (sections 162 and 163 of the
Code of Criminal Procedure, 1973).

2. Reports not recorded immediately but after questioning of witnesses.

3. Reports recorded after several days of developments.

4. Information not about occurrence of cognizable offence but only cryptic message in the form of an appeal
for immediate help.

5. Complaint to the Magistrate.

6. Information to beat house.

7. Information to the Magistrate or police officer on phone.

8. Information received at police station prior to the lodging of an F.LR.

It was held in Damodar v. State of Rajasthan, AIR 2003 SC 4414: 2003 AIR SCW 5050: 2003 (4) RCR (Cri) 355 (SC) that
if the information was conveyed to police on telephone and DO entry was made, it will not constitute an FIR even if
the information disclosed commission of cognizable offence.

FIRST INFORMATION REPORT

(Under Section 154 Cr.P.C)

1. District ___________ Police Station________ Year ________FIR No._____ Date_____

2. Act___________ Sections______________

3.

a. Occurrence of offence: Date ________Time Period_____________

b. Information received at Police Station Date_________ Time_________

c. General Diary Reference: Entry No_________ Time____________

4. Type of Information Written/Oral

5. Place of Occurrence:

a. Direction and distance from P.S__________ Beat No________

b. Address________________

c. In case,, outside the limit of this P.S., then Name of Police Station_____________________
District_______________________

6. Complainant/Informant:

a. Name_________________

b. Father's/Husband's Name_________________

c. Date/Year of Birth ___________

d. Nationality

e. Address_________________________

7. Details of known/suspected/unknown accused with full particulars.

i. ____________________________________

ii. ____________________________________

8. Reasons for delay in reporting by the complainant/informant

9. Particulars of properties stolen____________________

10. Total value of property stolen____________________

11. Inquest Report/U.D case NO., if any__________________

12. FIR Contents:_____________________

13. Action Taken: Since the above information reveals commission of offence(s) u/s as mentioned at Item No.2:

1. Registered the case and took up the investigation or

2. Directed/Entrusted (Name of I.O)__________ Rank_________ No___________ to take up the Investigation or

3. Refused investigation due to _____________ Or

4. Transferred to P.S____________ District___________ on point of jurisdiction.

FIR read over to the complainant/informant, admitted to be correctly recorded and a copy given to the
complainant/informant, free of cost.

Signature of Officer in charge, Police Station

Name_____________________

Rank_________ No________

14. Signature/Thumb impression of the complainant/informant.

15. Date and time of dispatch to the court _________________

Essential elements of lease under section 105 of transfer of property act 1882

Under Section 105 of the Transfer of Property Act, 1882, a "lease" is defined as the transfer of a right to enjoy
property for a specified time, in exchange for consideration (rent or premium). The essential elements of a lease
under this section are:

1. Parties Involved

• A lease involves two parties: the lessor (landlord/owner) and the lessee (tenant).

• Both parties must be legally capable of entering into a contract, meaning they should be of sound mind and
legally recognized as adults.

2. Subject Matter

• The subject of a lease must be a tangible, immovable property (e.g., land, buildings).

• The lessor must have the legal right to lease the property to another party.

3. Transfer of Right to Enjoy Property

• The lease involves transferring the right to use and enjoy the property from the lessor to the lessee for a
specified time.

• However, ownership rights are not transferred—only the right to occupy or use the property.

4. Duration of Lease

• A lease must specify the duration or term, which could be fixed (e.g., six months, one year) or based on
other conditions (e.g., month-to-month).

• The duration is typically agreed upon by both parties, though it can also be implied based on local laws or
practices.

5. Consideration (Rent or Premium)

• A lease must involve consideration, either as rent (a recurring payment) or a premium (a one-time, lump-
sum payment).

• The amount and terms of payment should be specified in the lease agreement.

6. Acceptance by Both Parties

• Both parties must mutually agree to the terms of the lease. This usually involves a written lease agreement,
though oral agreements are sometimes legally valid.

7. Possession of Property

• Under a lease, the lessee is given the right to occupy or possess the property for the agreed duration, as per
the terms set forth in the lease.
Notice under section 80 of CPC

Notice under Section 80 of Civil Procedure Code, 1908

When individuals sue each other, they don’t have to give notice before going to court. However, Section 80 of the
Code says that when someone wants to file a lawsuit against the Government or a public officer for something they
did in their official role, they must first give written notice.

Section 80 specifies that you can’t start a lawsuit against the Government or a public officer for their official actions
until two months have passed after you’ve delivered a written notice to:

• If it’s a lawsuit against the Central Government (except for railway matters), you should send the notice to
the Secretary of that Government.

• If it’s a lawsuit against the Central Government related to a railway, you send the notice to the General
Manager of that railway.

• If it’s a lawsuit against the Government of the State of Jammu and Kashmir, send it to the Chief Secretary of
that Government or an authorised officer.

• If it’s a lawsuit against any other state Government, you send the notice to the Secretary of that Government
or the Collector of the district.

• If it’s a lawsuit against a public officer, you send the notice to that public officer.

Section 80 of the CPC

1 Save as otherwise provided in sub-section (2), no suits 3 shall be instituted against the Government (including the
Government of the State of Jammu and Kashmir)] or against a public officer in respect of any act purporting to be
done by such public officer in his official capacity, until the expiration of two months next after notice in writing has
been delivered to or left at the office of

(a) in the case of a suit against the Central Government, except where it relates to a railway a Secretary to that
Government;

6(b) in the case of a suit against the Central Government where it relates to railway, the General Manager of that
railway;

7(bb) in the case of a suit against the Government of the State of Jammu and Kashmir, the Chief Secretary to that
Government or any other officer authorised by that Government in this behalf;

(c) in the case of a suit against 8[any other State Government], a Secretary to that Government or the Collector of
the district; and, in the case of a public officer, delivered to him or left at his office, stating the cause of action, the
name, description and place of residence of the plaintiff and the relief which he claims; and the plaint shall contain a
statement that such notice has been so delivered or left.

11(2) A suit to obtain an urgent or immediate relief against the Government (including the Government of the State
of Jammu and Kashmir) or any public officer in respect of any act purporting to be done by such public officer in his
official capacity, may be instituted, with the leave of the Court, without serving any notice as required by sub-section
(I); but the Court shall not grant relief in the suit, whether interim or otherwise, except after giving to the
Government or public officer, as the case may be , a reasonable opportunity of showing cause in respect of the relief
prayed for in the suit:

Provided that the Court shall, if it is satisfied, after hearing the parties, that no urgent or immediate relief need be
granted in the suit, return the plaint for presentation to it after complying with the requirements of sub-section (1).

(3) No suit instituted against the Government or against a public officer in respect of any act purporting to be done
by such public officer in his official capacity shall be dismissed merely by reason of any error or defect in the notice
referred to in sub-section (I), if in such notice
(a) the name, description and the residence of the plaintiff had been so given as to enable the appropriate authority
or the public officer to identify the person serving the notice and such notice had been delivered or left at the office
of the appropriate authority specified in sub-section (1), and

(b) the cause of action and the relief claimed by the plaintiff had been substantially indicated.

What Is Section 80 of the CPC?

Section 80 of CPC mandates the issuance of a notice to the government or a public officer before filing a lawsuit
against them for certain types of claims. This notice serves as a formal communication to inform the government or
public officer of the intent to sue and provides them with an opportunity to address the matter before it proceeds to
court.

The Code of Civil Procedure is a set of rules for handling civil legal matters in India. Section 80 of the CPC focuses on
the requirement for providing notice before taking legal action. This notice is mandatory and applies to two main
types of cases:

• Suits against the government.

• Suits against public officers for actions performed in their official capacity or actions that appear to be done
in their official capacity.

Section 80 consists of three sub-sections:

• The first sub-section explains who should receive and where to deliver the notice.

• The second sub-section addresses special situations where notice may not be necessary, such as
emergencies.

• The third sub-section outlines the specific requirements for the content of the notice.

In the case of State of Maharashtra v. Chander Kant, it was established that notice must be given in all cases falling
under the first category (suits against the government). However, in the second category (suits against public
officers), notice is only required when the lawsuit pertains to an action performed by the public officer as part of
their official duties, not for other situations.

Section 80 of the CPC, 1908, has three key subsections that outline the requirements for sending a notice before
filing a lawsuit against the government or a public officer:

Section 80(1): Notice Delivery

According to this subsection, the notice should be delivered to specific offices based on the category of the case:

• For suits against the Central Government (except for railway matters), the notice should be delivered to or
left at the office of the Secretary to that government.

• If the suit relates to railways under the Central Government, the notice should be delivered to or left at the
office of the General Manager of that railway.

• In the case of the Government of the State of Jammu and Kashmir, the notice should be sent to the office of
the Chief Secretary to that government or any authorised officer.

• For suits against any other state government, the notice should be sent to the office of the Secretary to that
government or the Collector of the district.

In the case of a public officer, the notice should be delivered to them at their office. The notice must specify the
cause of action, the plaintiff’s name, description, place of residence and the relief sought. The lawsuit itself should
also mention that such notice has been delivered or left.

Section 80(2): Exception for Urgent Relief

This subsection provides an exception to Section 80(1). It allows the court to hear a suit that seeks urgent or
immediate relief against the government if the plaintiff can show a reasonable cause for such urgency. If the court is
satisfied with the grounds for urgent relief, it proceeds with the case. However, if the court finds no sufficient reason
for immediate relief, it returns the lawsuit for presentation later, after complying with the requirements of Section
80(1).

Section 80(3): Basic Notice Requirements

This subsection outlines the fundamental requirements for the notice. If these requirements are met, the suit cannot
be set aside due to minor errors or defects in the notice. The basic notice requirements include:

• Clearly identifying the plaintiff’s name, description and residence to allow for easy identification of the
person sending the notice.

• Confirming that the notice was delivered or left at the office of the appropriate authority specified in Section
80(1).

• Providing a clear indication of the cause of action and the relief sought by the plaintiff.

Objective of Section 80 IPC

The main objective of Section 80 of the CPC is to provide an opportunity for the government or a public officer to
assess the legal situation and potentially resolve the claim brought by the prospective plaintiff if it is deemed just
and reasonable. Unlike private parties, the government is expected to objectively consider the matter and make an
informed decision within two months, often with the assistance of legal advice. This approach saves both public
money and time and serves the public interest.

The legislative intent behind this provision is to prevent unnecessary litigation and the wastage of public funds.
Section 80 guides the government and public officers to engage in negotiations for valid claims and settle them
without resorting to an unreasonable stance that could lead to needless expenditure from the public treasury.

Institution of Suit without Notice against Government or Public Officer

Section 80(2) serves as an exception to Section 80(1). It allows a plaintiff to institute a suit seeking urgent and
immediate relief without serving a notice, provided that they obtain permission from the court. The most crucial
condition outlined in Section 80(2) pertains to the urgency of the matter.

When the court is convinced that urgent relief is necessary and the plaintiff cannot wait for the notice period to
elapse, the court can grant permission for the plaintiff to initiate a lawsuit against the government without serving
the notice as required by Section 80(1). In such cases where the court grants this permission, the plaintiff can
proceed with the lawsuit without waiting for the notice period.

Important Points

Sec. 80 CPC is mandatory

Section 80 of the CPC is considered mandatory and its provisions must be strictly followed. Failure to serve a notice
two months prior to initiating a lawsuit can lead to the dismissal of the suit. This has been upheld in several legal
cases, including:

• B.R. Sinha vs. State of M.P., AIR 1969 SC 1256 (Three Judge Bench).

• The State of A.P. vs. G.V. Suryanarayana, AIR 1965 SC 11.

• Dominion of India vs. Purshottam Das, AIR 1961 All 176.

Urgency of the matter to be relevant consideration for grant of leave u/s. 80 CPC

In cases where a plaintiff seeks to file a lawsuit without serving notice under Section 80(2) of the CPC, the urgency of
the matter is a relevant consideration for the court to grant leave. If the court believes there is no urgency or
immediate relief cannot be granted, it may refuse to grant leave under Section 80(2) of the CPC. This principle is
illustrated in the case of Islamia Junior High School vs. State of U.P., AIR 1986 All 92.

Contents or Requisites of notice u/s. 80 CPC

The notice sent under Section 80 of the CPC must contain specific requisites or contents, including:

• Providing the name, description and residence of the plaintiff in a way that allows authorities to identify the
person sending the notice.

• Clearly setting out the cause of action and the relief sought by the plaintiff with sufficient particularity.

• Ensuring that a written notice has been delivered to or left at the office of the appropriate authority
mentioned in the section.

• Filing the lawsuit after the expiration of two months following the notice’s delivery and including a
statement in the plaint confirming that such notice has been served.

When interpreting the notice, the court should consider the legislative intent, which is to provide the government or
public servant an opportunity to reevaluate their legal position. If the notice reasonably provides the information
required by the statute, any minor defects or irregularities should be overlooked. This principle has been upheld in
various cases, including Qamaruddin vs. Union of India, AIR 1982 All 169; B.R. Sinha vs. State of M.P., AIR 1969 SC
1256 (Three Judge Bench); The State of A.P. vs. G.V. Suryanarayana, AIR 1965 SC 11; and Amar Nath Dogra vs.
Union of India, AIR 1963 SC 424 (Five Judge Bench).

Errors or Defects in Notice under Section 80 CPC

Not every minor error or defect in the notice served under Section 80 of the CPC is fatal to the case. Such venial
(trivial) errors or defects should not be allowed to defeat a just claim. If, upon a reasonable reading of the notice and
without making undue assumptions, it is evident that the plaintiff has provided the essential information required by
the statute, any incidental defects or errors may be disregarded. This principle is affirmed in the case of The State of
A.P. vs. G.V. Suryanarayana, AIR 1965 SC 11.

Mode of Interpretation of Notice under CPC

While it is crucial to strictly adhere to the terms of Section 80 of the CPC, this does not imply that the terms of the
notice should be scrutinised in an overly pedantic or impractical manner. Common sense should be applied when
interpreting notices under Section 80 CPC. Some degree of practicality and common sense must be employed in
understanding these notices. This perspective is supported by cases such as State of Madras vs. C.P. Agencies, AIR
1960 SC 1309 and Dhian Singh Sobha Singh vs. Union of India, AIR 1958 SC 274.

Suit for Compensation Against Railway Administration and Section 80 CPC

Regarding suits for compensation against the railway administration, the Supreme Court has held that Union of India
should be impleaded as a necessary party and the provisions of Section 80 CPC are applicable to such suits. This
interpretation is based on Section 79 and Section 80 CPC. (See State of Kerala vs. G.M., Southern Railway, Madras,
(1977) 1 SCR 419).

Non-Impleadment of State and Consequences

In cases where the State is not impleaded as a party in a lawsuit and the notice under Section 80 CPC is not served, it
can have significant consequences. For instance, if a suit is brought by individuals, such as daughters of a
Bhoomidhar, seeking a declaration that certain orders issued by authorities are illegal and the State is not impleaded
as a party and the Section 80 notice is not served, the Supreme Court has held that the suit may not be maintainable.
Non-impleadment of the State and failure to serve the Section 80 notice can impact the validity of the lawsuit, as
demonstrated in the case of Sooraj vs. S.D.O., AIR 1995 SC 872.

Definition of Public Officer According to Section 2(17) of CPC

Section 2(17) of the Code of Civil Procedure provides a definition for “public officer,” which includes individuals
falling under various categories. A public officer is defined as a person who falls into any of the following
descriptions:

• (a) Every Judge.

• (b) Every member of an All India Service.

• (c) Every commissioned or gazetted officer in the military, naval or air forces of the Union while serving
under the Government.

• (d) Every officer of a Court of Justice whose duties involve investigating or reporting on legal or factual
matters, creating or maintaining documents, handling property, executing judicial processes, administering
oaths, interpreting, maintaining order in the court or those authorised by a Court of Justice to perform such
duties.

• (e) Anyone holding an office that empowers them to confine individuals.

• (f) Government officers responsible for preventing offenses, reporting offenses, bringing offenders to justice
or safeguarding public health, safety or convenience.

• (g) Officers tasked with managing government property, conducting surveys, assessments or contracts on
behalf of the Government, executing revenue processes, investigating matters affecting government
financial interests, creating or maintaining documents related to government financial interests or
preventing violations of laws protecting government financial interests.

• (h) Officers in government service, remunerated by fees or commissions for performing public duties.

Interpretation of Section 2(17)(h) and Suit Against the Coal Mines Provident Fund Commissioner

In the case of Coal Mines Provident Fund Commissioner vs. Ramesh Chandra Jha, AIR 1990 SC 648, the Supreme
Court interpreted Section 2(17)(h) of the CPC. The court held that the Coal Mines Provident Fund Commissioner is
considered a public officer. Consequently, a lawsuit filed against such an officer without serving the notice required
under Section 80 of the CPC is not maintainable.

Definition of Government Pleader According to Section 2(7) r/w. Order 27, Rule 8-B of CPC

Section 2(7) of the CPC defines “Government Pleader” as any officer appointed by the State Government to perform
the functions expressly imposed by the CPC on the Government Pleader. This definition also includes any pleader
who acts under the directions of the Government Pleader. Essentially, a Government Pleader is a legal officer
appointed by the state government to represent the government’s interests in legal matters and proceedings as
specified by the CPC.

Seeking Exemption from Two Months Prior Notice under Section 80(2) CPC

When a plaintiff seeks exemption from the two-month prior notice requirement under Section 80(2) of the CPC, the
court must follow specific procedures to ensure fairness and natural justice:

• The court should issue notice to the DGC (Civil), who represents the Union of India or the State, inviting
objections and allowing a hearing on the plaintiff’s application under Section 80(2) of the CPC.

• Before granting permission to the plaintiff to file a lawsuit against the Union of India or the State without the
two-month notice, the court must observe the principles of natural justice, including the principle of “audi
alteram partem,” which means giving both sides a fair opportunity to be heard.

• The DGC (Civil) should not be deprived of the right to object and present their case against the plaintiff’s
application for exemption from the notice requirement under Section 80(2) CPC. Failure to issue notice for a
hearing is contrary to the principles of natural justice. The right to be heard in one’s defense is fundamental
and essential for a fair adjudication.
This procedural aspect is highlighted in the case of Suresh Chandra Nanhorya vs. Rajendra Rajak, 2006 (65) ALR 323
(SC).

Introduction of a New Cause of Action through Amendment and Notice under Section 80 CPC

If an amendment to the plaint introduces a new cause of action, it is essential to serve a fresh notice under Section
80 of the CPC. This requirement is upheld in the case of Bishan Dayal vs. State of Orissa, (2001) 1 SCC 555.

Agent for Government to Receive Process (Order 27, Rule 4 CPC)

According to Order 27, Rule 4 of the CPC, the Government pleader in any court serves as the agent of the
Government for the purpose of receiving processes issued by that court against the Government.

Second Notice under CPC after Withdrawal of First Suit (Order 23, Rule 1 CPC)

When a plaintiff withdraws a suit that was initially filed against the Government after issuing notice under Section 80
of the CPC and subsequently seeks to file a fresh suit based on the same cause of action, a fresh notice under Section
80 CPC before instituting the second suit is not necessary. This principle is affirmed in the case of Amar Nath Dogra
vs. Union of India, AIR 1963 SC 424 (Five Judge Bench).

Waiver of Notice under Section 80 CPC

Notice under Section 80 of the CPC can be waived by the concerned authorities. Waiver can be inferred even from
the non-appearance and absence of a written statement by the government authorities. This has been recognised in
various legal cases, including Bishandayal vs. State of Orissa, (2001) 1 SCC 555 and Gaja vs. Dasa Koeri, AIR 1964 All
471.

Third Party Cannot Object about Notice under Section 80 CPC

When the authorities concerned have waived the notice requirement under Section 80 of the CPC, it is not open for
any other party to the suit to raise objections regarding the absence of notice under CPC as a ground for challenging
the maintainability of the suit. This principle is established in the case of Gaja vs. Dasa Koeri, AIR 1964 All 471.

Impleadment of State during Pendency of Suit and Notice under Section 80 CPC

If a plaintiff files a suit against an auction purchaser of land from a Gaon Sabha for possession and injunction and the
State Government, which is a necessary party, is not impleaded in the suit and no notice under Section 80 CPC is
issued to the State Government and no exemption from notice is obtained, the suit may not be maintainable. This is
based on the case of Sri Ram vs. Smt. Mullo, 1979 ALR (5) 374 (All).

Death of Plaintiff after Issue of Notice under Section 80 CPC and Before Institution of Suit

In situations where the plaintiff’s father issued notice under Section 80 CPC, but before the expiration of the next
two months and the filing of the suit, the plaintiff’s father passes away and the suit is subsequently filed by the son
without issuing a fresh notice under Section 80 CPC, the Supreme Court has held that the notice under Section 80
CPC already issued is sufficient and a fresh notice is not necessary. This principle is affirmed in the case
of Ghanshyam Dass vs. Dominion of India, AIR 1984 SC 1004.

Section 80 CPC Applies Only to Acts of Public Officers Done in Their Official Capacity

Section 80 of the CPC applies specifically to acts of public officers carried out in their official capacity. In a situation
where the plaintiff sought interim injunction under Order 39, Rule 1 CPC in a suit for permanent injunction related to
acts done by a public officer in his official capacity but failed to issue a notice under Section 80 CPC, the suit may be
impacted by Section 80 CPC and interim injunction might not be granted. This interpretation is derived from the case
of U.R. Agarwal vs. Brahm Singh, AIR 1976 All 243.

Notice under CPC to State Alone and Not to the Public Officer – Not Fatal

If a plaintiff files a suit against the state seeking injunction and claiming possession over disputed land and a two-
month prior notice under Section 80 CPC is served only to the state and not to the public officer (Block Development
Officer) against whom the injunction is sought due to interference, the suit against the public officer/BDO cannot be
dismissed for want of notice under Section 80 CPC to the public officer. This is established in the case of Ghulam
Rasool vs. State of J & K, AIR 1983 SC 1188.

Conclusion

Section 80 of CPC in India stands as a pivotal legal provision aimed at ensuring fairness and accountability in lawsuits
against the government and public officers.

Section 80 CPC mandates the issuance of a notice prior to suing the government, providing a two-month period for
officials to respond. This mechanism fosters amicable resolution and saves public resources.

NOTICE OF SUIT UNDER SECTION 80 OF THE CODE OF CIVIL PROCEDURE,1908 AGAINST THE CENTRAL
GOVERNMENT

A… GUPTA Advocate Ch. No. …, Delhi High Court New Delhi. Ph.011- 2338XXXX

REGD A/D / U.P.C. Dated…………………… To The Secretary to the Government of India Education Department Central
Secretariat New Delhi Sub: NOTICE UNDER S. 80 OF THE CIVIL PROCEDURE CODE, 1908 Dear Sir, Under instructions
from my client……………………an employee in Section…………..of the Department of Education, Central Secretariat, New
Delhi I hereby give you notice under S.80 of the C.P.Code and state that my aforesaid client intends to sue the Union
of India owing and representing the Department of Education, Central Secretariat, New Delhi after the expiry of two
months after the service of this notice unless reliefs claimed herein below are granted to my said client within the
said period of two months. The following particulars of the nature of the claim, cause of action and reliefs claimed
are given below: (1) Name and description Sri……………..son of………….by of the Plaintiff occupation…….residing
at………. (2) Cause of Action (a) Sri………..was an employee……….section of the department of education, Government
of India, Central Secretariat, New Delhi. He has been dismissed from service illegally with effect from……….. (b)
Sir…………….. was charged falsely for an alleged theft in the office on…………..and charge sheeted and ultimately
dismissed from service with effect from………. (c) Cause of action for the suit arose on…………….the date of dismissal.
(3) Reliefs sought for (a) Reinstatement of Sri…………………… (b) Recovery of salary for the period of………..to…….. Yours
faithfully

Legal Notice

ntroduction

There are a few events when an individual or an element needs to make a lawful move against someone else or an
element. The few events can be purchaser protest, the property question, check bob, separation, expulsion, and
some more. Nonetheless, it is significant for you to educate the other individual that you will start a legitimate
activity against them. That is the explanation, you send a lawful notification to an individual or a substance.

What Is A Legal Notice?

A legal notice is a formally composed archive sent by an individual or an element concerning some complaint. It is
sent as a notice to the beneficiary that the one sending the notification has certain complaints which are not
appropriately dealt with by the collector, albeit the recipient has given sufficient freedom to the recipient to
determine the issue.
It resembles a last admonition to the collector that the sender is set up to start a lawful activity and it is the last
chance for the beneficiary to determine the issue close by appropriately.

Significance of documenting a Legal Notice

Certain circumstances may emerge where you get confounded about how to start lawful activity to determine your
matter. The recording of a lawful notification gives a fresh start to your excursion of the case. Hence, it has different
angles in which it is significant:
By sending a lawful notification, it can give a reasonable aim with respect to the sender to record a claim to
determine the issue to which the other party may react quickly to save oneself from court procedures.
An individual can undoubtedly depict his complaint in a lawful notification with the assistance of an Advocate.

Serving of lawful notification offers a chance to the beneficiary of the legitimate notification, that is, the contrary
party to determine the issue warmly.

It goes about as an update for the recipient of the legitimate notification about the demonstrations that have
purposefully or inadvertently have made an issue for the sender.

When to send a Legal Notice?

1. There are various purposes behind which you can send a lawful notification to an individual or a substance.
Notwithstanding, the most widely recognized ones are:

2. Questions identified with a property like home loan, postponed ownership conveyance by the developer,
ousting of the occupant, the parcel of family property, and so forth

3. Notice to the business for the illegitimate end, neglected compensation, infringement of any privilege of the
representative by the business, and so forth

4. Notice to the worker for infringement of the HR strategies, lewd behavior act at the work environment,
leaving the work without giving over the renunciation letter, infringement of any arrangement of the
business understanding, and so on
Notice to an organization fabricating or offering support of flawed items, defective administrations, bogus
notice, and so forth

5. Notice on account of check ricochet to the backer of the check.

6. Notice if there should arise an occurrence of private issues like separation, support, kid care, and so forth.

Legitimate Notice under segment 80 of The Code of Civil Procedure, 1908

A Legal Notice is by and large recorded in common cases. In criminal cases, there is no recording of the legitimate
notification as in the event of a criminal offense the activity is established by the State against the individual carrying
out the offense, as State is the incomparable force. Nonetheless, in the event that you plan to start a common suit
against the Government, you need to serve a legitimate notification to the Government heretofore, and just from
there on you can document a common suit against the Government.

Area 80 of The Code of Civil Procedure, 1908 accommodates sending of a legitimate notification to the Government
or public official in the event that one needs to start a lawful activity against them for any demonstration professed
to be finished by such open official throughout his authority obligation until the termination of two months. The
reason for the notification is to give the Secretary of State or the public official an opportunity to reconsider his
legitimate position and to offer some sort of remuneration without going to a courtroom.

In Bihari Chowdhary v. Territory of Bihar [AIR 1984 SC 1043], Supreme Court has expressed that “The object of the
segment is the headway of equity and the getting of public great by aversion of pointless prosecution”.

For Section 80 of the Code of Civil Procedure, 1908

• Basics of Section 80 of Code of Civil Procedure, 1908

• Name, depiction, and spot of the home of the sender of the notification.

• Explanation of reason for the activity.

• The help asserted by the sender of the notification.

• Rundown of the legitimate reason for the help asserted.

REPLY TO LEGAL NOTICE

Name of the Advocate Advocate …………… Jangpura Extn. New Delhi-110019 Ph.011- 2437XXXX

REGD A/D / U.P.C.

To, Sh. ………..Advocate, ……, Delhi High Court, New Delhi-110001

SUB: REPLY TO YOUR LEGAL NOTICE U/S 138 NEGOTIABLE INSTRUMENT ACT, DATED…

Dear Sir, Your legal notice dated 09.06.2015 has been placed before me by my client Sh. ………………….at Connaught
Place, New Delhi -110001 and I, the undersigned, have been instructed to reply to your said notice by my client on
his behalf as under:

A. That, at the outset you are being informed that the notice under reply, you have sent on behalf of your
above said client, contains false and frivolous facts provided by your said client against my client, thereby
your notice under reply deserves to be withdrawn, with unconditional apology by your client, because the
claim made by you is without any basis and is based upon concocted facts, as no claim is made out against
my client and in favour of your client
B. B. That, in fact, my client did not place any order for supply of any machines whatsoever, as alleged by you.
But, with a view to dispose off your old stock of outdated machines, you requested my client to place them
at his shop for sale. Keeping in view old relations my client agreed to your client‟s proposal, which was
subject to the condition that payment would be made only after those machines were sold out. However,
those machines were not only outdated, but were also mechanically faulty, because of which till date they
are lying with my client, which your client is at liberty to take back with two days‟ prior notice. It is pertinent
to mention here that the cheque in question was handed over by my client blank and the same was to be
used only upon instructions of my client, after he could sold out your all those machines
C. C. That, however, your client has cheated my client by misusing that cheque which is not in the handwriting
of my client. As a matter of fact, your client has committed Name of the Advocate Advocate ……………
Jangpura Extn. New Delhi-110019 Ph.011- 2437XXXX 153 fraud in the matter and, consequently, is liable to
be proceeded under the relevant provisions of law
D. D. That, therefore, it is denied that the cheque in question was issued by my client to your client in discharge
of any liability. Rather, your client has misused that blank cheque with ulterior motives, after forging the
same

REPLY ON MERITS:
1. That the contents of para 1 of your legal notice are wrong and denied and whatsoever is stated
above is reiterated. It is denied that my client purchased from you client any machines whatsoever.
Rather, my client helped your client to keep your machines in his godown/shop for disposal.
Therefore, it is denied that the cheque in question was issued in discharge of any liability towards
my client, as alleged in this para
2. That the contents of para 2 are denied for want of knowledge. However, it is reiterated that my
client ever issued any cheque, in the manner as alleged by you
3. That, in reply to para 3 of your legal notice, what is stated above is reiterated. It is submitted that
your client was not entitled to use that cheque for encashment and deposit the same in his bank
4. That the contents of para‟s 4 &5 are denied for want of knowledge. However, it is reiterated that
any cheque was issued in discharge of any liability towards my client to your client.
5. . That the contents of para 6 need no comments. However, it is denied that my client committed any
offence whatsoever.
In view of aforesaid facts and circumstances, you are being advised to further advice your client to
withdraw the said notice under reply and further advise him not to drag my client in any frivolous
litigation, failing which my client shall be constrained to contest the same, besides proceeding
against your client under the relevant provisions of law, at the costs, risks and consequences of your
client only. Yours Sincerely, Advocate
General Power of Attorney
Power of Attorney as a concept refers to a document wherein one party allows another party to act
on their behalf as their representative or proxy. Power of attorney is usually utilised when a person
 is not in a position to act on their own and entrusts someone else to handle their affairs on their
behalf. There could be several reasons for this. A person may not be able to be physically present for
a matter where physical presence is required. The person might be minor and cannot enter legal
contracts alone. So when such circumstances arise, the unavailable or incompetent party can
manifest a power of attorney to a person who is available and competent to act on behalf of them.
There can be two kinds of power of attorney. One is a general power of attorney where the person
possessing this power can act on behalf of the person manifesting the power in all legal matters. The
second is a specific power of attorney where the person authorised with a power of attorney can act
on behalf of the person, emphasising only particular matters. In this article, we shall discuss the
General Power of Attorney.
General Power Of Attorney
The general power of attorney(PoA) is a written authorisation to an organisation or person to act on
their behalf in all legal matters. The powers granted by a general PoA include:
• Entering into contracts.
• Handling business transactions.
• Operating business interests.
• Employing professional help.
• Settling claims and making gifts.
The general PoA is an effective tool to be used while the person is out of the country, physically or
mentally incapable of managing the affairs, or if the person is a minor.
A general PoA gives a person or organisation broad powers to act on your behalf. These powers
include handling financial and business transactions, buying life insurance, settling claims, operating
business interests, making gifts, and employing professional help. A general PoA (as opposed to a
special PoA) is an effective tool if you will be out of the country and need someone to handle certain
matters, or when you are physically or mentally incapable of managing your affairs. A general PoA is
often included in an estate plan to make sure someone can handle financial matters.
It is essential for an agent to keep accurate records of all transactions done on your behalf and to
provide you with periodic updates to keep you informed. If you cannot review updates, direct your
agent to give an account to a third party. As for legal liability, an agent is held responsible only for
intentional misconduct, not for unknowingly doing something wrong.
This protection is included in PoA documents to encourage people to accept agent responsibilities.
Agents are not customarily compensated; most do it for free. Should you, a friend, or relative
suspect wrongdoing on the part of your agent, report the suspected abuse to the police and consult
a lawyer.
Procedure For Getting A General Poa
1. First, the PoA has to be drafted. This is generally considered a very straightforward process and can be done
by any lawyer. It need not be done on stamp paper but must be made in the presence of two witnesses and
a notary public. When authenticated by a notary public, it has the same effect as registration.
2. There is also no need to have the Power of Attorney registered at the sub-registrar’s office. However, this
may be necessary when a power of attorney is being executed for property-related matters. In such cases, a
power of attorney is called a ‘special power of attorney.
3. In case the power of attorney has to be registered, it will have to follow the provisions laid down under
Section 48 of Schedule 1 of the Indian Stamp Act, 1899. Stamp duty has to be paid compulsorily by the
principal or donor in the jurisdictional registrar’s office. In case of a general power of attorney, stamp duty is
Rs. 100.
Conclusion
A power of attorney can be of great convenience. But if not drafted carefully, it can make the person
manifesting the power vulnerable to fraud and being blindsided. And while you may be clear about
what you want to achieve through a power of attorney, only an expert in the field of contracts and
agreements can ensure that you are protected against any loopholes by making a watertight power
of attorney. If you have any specific queries concerning power of attorney or need help drafting one,
then get in touch with us so that our legal experts can understand your requirements and assist you
with your needs.
 GENERAL POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS THAT THIS GENERAL POWER OF ATTORNEY is executed at New
Delhi on this 1st day of January 2004 by M/s. TINRIN, a company incorporated under the Companies
Act having its registered office at E-1 WESTEND, New Delhi through its Managing Director Mr.
X……(details) (hereinafter referred to as the EXECUTANT), DO HEREBY APPOINT, NOMINATE,
CONSTITUTE AND AUTHORISE Sh. Y….(details), Executive Director of M/s TINRIN (hereinafter
referred to as the ATTORNEY) AS MY TRUE AND LAWFUL ATTORNEY TO MANAGE, CONTROL,
LOOKAFTER / SUPERVISE, PERFORM ALL LEGAL ACTS MENTIONED HEREUNDER
WHEREAS….. AND WHEREAS…..(Mention few recitals like the purpose of making this GPA). NOW
THIS GENERAL POWER OF ATTORNEY WITNESSESTH AS UNDER:-
(i) To institute, commence and conduct any action, suit or other legal proceedings before any Court,
Arbitrator, Quasi-judicial or authorities, Offices, Tribunals, Labour Courts, Conciliation Officers, Land
Acquisition Officers, etc. on behalf of the company for claiming any right, relief, recovery, title,
interest, property or in respect of any matter connected with or arising out of the Company‟s
business and subject to aforesaid, to settle, adjust, compromise or submit to Arbitration any such
actions, suits or proceedings.
(ii) To defend all actions, suits, proceedings, applications, petitions, appeals, revisions, reviews,
arbitrations, conciliations, taxation and labour matters and other disputes that are now pending or
may hereafter be brought or made or instituted in any Court or office or Tribunal, Arbitrator,
Conciliation Officer, or any other Judicial or Quasi-judicial authorities in the name of the company.
(iii) To appear and represent the Company in any Court of Justice or Tribunal whatsoever and for the
purpose aforesaid or any of them to sign and verify plaints, written statements, applications and
swear affidavits and to sign petitions and other necessary documents including Valalatnama and to
appoint any Solicitor, Advocate, Pleader or other Legal Advisor with the necessary power and such
again at pleasure, to revoke and appoint others in their place.
(iv) To continue and conduct or defend any appeal, review, revision, arbitration in any Court or
Tribunal or office against any order, judgment or decree made in suits, actions, proceedings,
application etc.
(v) Generally for and in the name and as the act and deed of the Company to make, execute and do
all and every such further and other acts. Deeds, matters and things as shall be fit, requisite and
necessary in and about the premises and for all or any of the purposes aforesaid and as the
Company could do if acting in the premises.
And I, the said Managing Director of the Company and also for the said Company hereby agree to
ratify and confirm whatsoever the said Attorney shall lawfully do or cause to be done in or about the
premises by virtue of these presents. IN WITNESS WHEREOF I have hereunto signed this document
on the date and place first above written in the presence of following witnesses.
EXECUTANT WITNESSES: (1) (2)

Will
A Will is a legal document containing the declaration of a person regarding the distribution of his/her
assets after his/her death. A Will comes into effect upon the death of the testator and defines how
his/her wealth, property, and assets will be distributed.
There is no prescribed form of a Will and it can be handwritten or typed on any document and not
just stamp paper. A Will may be revoked or altered by the owner at any time before his/ her death.
What is the need of drafting a Will?
For a wealthy person, having no will after his/her death would result in a fierce legal battle among
their family members as everyone would want to get a lion’s share of the wealth left behind. Even if
such a person just nominates a person as a beneficiary, it won’t solve the purpose. This is because
nomination can be done only for financial products like bank accounts and deposits, insurance,
shares, mutual funds, provident funds, etc, but that too only provides a custodian right to the
nominee and not an absolute right to own it. So, a nominee will receive and hold the property of the
deceased until the nominee is legally bound to transfer or distribute it to the legal heirs of the
 deceased as in most cases the Indian Succession Act prevails over the nomination. Moreover, in the
case of physical assets, like house property, land, gold, etc, there is no provision for nomination. It’s
only the Will that provides the beneficiary with an absolute right to own property after the demise
of the owner. The Indian Succession Act can’t take away the rights of a beneficiary named in a Will.
So, it’s the Will that may put into rest the possibility of disputes regarding ownership of the wealth
left behind by a wealthy person.
Who can draft a Will?
To be eligible to draft a Will, a person should be a major (18 years of age or more) and with a sound
mind. Section 59 of the Indian Succession Act, of 1925, however, states that a person ordinarily of
unsound mind may make a Will during the interval of the soundness of his/her mind. When a person
is in a state of intoxication or illness, he/she becomes incapable of understanding the consequences
of the act and hence can’t write a Will. A Will can be revoked or altered at a later stage by the
testator.
Ingredients of a Will
The following details are to be included in a Will:
• The name, age, address, and other details of the maker of the Will – who is also called a testator – are
needed to establish the identity of the person making the Will and when it is being drawn.
• While drawing a Will the testator should declare that he/she is of sound mind and free of any coercion to
make it a valid one.
• The details of who shall be benefitting out of the Will and to whom shall the assets be divided should be
given specifying their name, age, address, and relation to the testator.
• A Will should contain the details of the assets and properties that a testator has, and which are the ones that
shall be covered in the Will. The testator may also list out any specific assets that are there.
• A Will should mention the share that each beneficiary has in the property or the specifics of who shall get
what is to be listed in full detail. In case an asset is to be given to a minor, then a custodian for the minor
should also be listed in the will.
• Will should direct all the payments to meet various liabilities added during a lifetime and expenses incurred
after the death of the testator to be made.
• Along with giving directions in terms of executing the Will, the testator should specify if there are any
specific instructions.
• After the completion of the drafting of a Will, the testator should sign it with the date after the last
statement.
• The testator should sign the Will in the presence of at least two witnesses. The witnesses just have to verify
that the signature by the testator was done before them and do not need to know the details of the Will.
• The appointment of an executor is necessary for the proper execution of a Will. The executor would ensure
that the Will is carried out according to the directions provided by the testator. The executor’s name, age,
address, and his/her relation to the testator should also be specified in the Will.
Revocation of Will
A Will may be revoked or cancelled in the following circumstances:
• A Will shall be presumed to be destroyed, if it cannot be found after the death of the testator and was last
seen in his possession. In such a case the Will may be revoked.
• The previous Will gets automatically revoked if a subsequent Will is executed.
• If the testator declares in writing his/her intention to revoke the Will, it can be taken to uphold the new Will
and revoke the previous one.
• If the testator destroys the existing will by tearing, burning, or by other means, it may be considered that the
testator has shown his/her intent of destroying the Will through action.
• If an unprivileged Will is created at a later stage, it shall overrule the prior privileged Will.
• If the testator gets married after writing a Will, the Will shall be deemed to be revoked. This is done to
safeguard the interests of all the relevant parties as per an important principle under the Indian Succession
Act.
How to challenge a will in India
Challenging a will in India involves a legal process that must be followed. Here are the general steps
to take:
1. To challenge a will in India, you must be an “interested person.” This means you are either a beneficiary
under a previous will or are entitled to inherit property if the current will is declared invalid.
2. You will need evidence to support your claim that the will is invalid. This could include witness statements,
medical records, and other relevant documents.
3. It is highly recommended to hire a lawyer who has experience in estate law to guide you through the
process.
4. Your lawyer will file a petition in court challenging the validity of the will.
5. You will need to attend court hearings to present your evidence and arguments.
6. In some cases, it may be possible to negotiate a settlement with the other party to avoid a lengthy court
battle.
7. The court will make a decision based on the evidence presented and will either uphold the will or declare it
invalid.
It is important to note that challenging a will can be a lengthy and costly process, and there is no
guarantee of success. Therefore, it is advisable to seek legal advice before proceeding.
Offline drafting of a Will
The Indian Succession Act, 1925, does not mandate any particular form for making a will. However,
the will must meet certain requirements to be valid:
1. The will must be in writing: A will must be in written form, whether typed or handwritten.
2. The testator must be of sound mind: The person making the will must be of sound mind at the time of
making the will.
3. The will must be signed by the testator: The will must be signed by the testator or by someone who signs on
their behalf in their presence and by their direction.
4. The will must be attested: The will must be attested by two or more witnesses who have witnessed the
signing of the will by the testator.
Once a will is created, it is recommended to keep the original in a safe place and provide copies to
the executor and beneficiaries. It is also a good idea to review and update the will periodically to
ensure it reflects your current wishes and circumstances.
Registration of Will in India
In India, registration of a will can be done under either Indian Succession Act,1925 or the
Registration Act, 1908.
• The Succession Act: the registration of will is not mandatory but can be done voluntarily by the testator or
their legal heirs after the death of the testator.
• The Registration Act: the registration of a will is a formal process of recording the contents of the will in the
books maintained by the Registrar or Sub-Registrar.The registration of a will under the Registration Act
provides the document with a presumption of genuineness, correctness and validity.
Note: The registration of a will under either of the acts requires the presence of the testator and two
witnesses, along with the payment of the prescribed registration fee. After the registration is done,
the testator or their legal heirs can obtain a certified copy of the registered will.
WILL
I, ______________, son of Shri _______________, aged __ years, resident of
_____________________________, do hereby revoke all my former Wills, Codicils and
Testamentary dispositions made by me. I declare this to be my last Will and Testament.
I maintain good health, and possess a sound mind. This Will is made by me of my own independent
decision and free volition. Have not be influenced, cajoled or coerced in any manner whatsoever.
I hereby appoint my ________________, as the sole Executor of this WILL.
The name of my wife is _________________. We have two children namely, (1)
__________________ (2) ________________, I own following immovable and movable assets.
1. One Flat No.___ in _______________________.
2. Jewelry, ornaments, cash, National Saving Certificate, Public Provident Fund, shares in various
companies, cash in hand and also with certain banks.
All the assets owned by me are self-acquired properties. No one else has any right, title, interest,
claim or demand whatsoever on these assets or properties. I have full right, absolute power and
 complete authority on these assets, or in any other property which may be substituted in their place
or places which may be Acquired or received by me hereafter.
I hereby give, devise and bequeath all my properties, whether movable or immovable, whatsoever
and wheresoever to my wife, _____________________, absolutely forever.
IN WITNESS WHEREOF I have hereunto set my hands on this ____ day of ____, 2000 at
____________.
-sd-
TESTATRIX
SIGNED by the above named Testatrix as his last WILL and Testament in our presence, who appear to
have perfectly understood & approved the contents in the presence of both of us presents, at the
same time who in his presence and in the presence of each other have hereunto subscribed our
names as Witnesses.
WITNESSES :
1.
2.
Agreement to Sell
In real estate, the two main parties involved are the buyer and seller of the property. Be it the selling
of a house or a commercial property, an agreement is created to mutually benefit both buyer and
seller. For a successful deal, both buyer and seller need to ensure that the terms and conditions are
laid down properly for a hassle-free deal. Few things need to be ensured for a clear and tension-free
transaction.
1.What is an agreement of sale?
An agreement of sale accounts for the terms and conditions of the sale of property by the seller to
the buyer. These terms and conditions entail the price at which the property is to be sold and the
future date of full payment. In simple words, it is an agreement to sell property.
No particular form is required for the contract. Any agreement that can be understood clearly,
describing the property in such a way that it is capable of identification, is apt. It does not have to be
written in English or written with a specific ink. The language may be any but translatable to English.
The agreement for sale of a property is between a landlord/real estate owner and tenants. The
primary objective of the contract is to ensure that the rent agreement is signed by both parties,
money is paid on time and the date of termination of the contract is mentioned correctly. The
contract functions are as follows:
1. Contract Creation: The Landlord initiates the contract by setting up the rental terms and the details of the
landlord and tenants. Typically, this is done with the help of a local agent or lawyer.
2. Contract Commencement: Tenant signs the contract and rent begins and the rental agreement cannot be
confirmed again, thus eliminating the possibility of overwriting the current tenant.
2. Importance of agreement for sale
A purchase and sales agreement considers the following certain aspects.
Anything in writing is beneficial for both parties. It has the following benefits for both parties:
1. Prevents Miscommunication: Keeping a standard contract in place provides information that may not have
been discussed, thereby preventing any miscommunication or confusion. Even if both parties have a good
relationship, if the agreement is made over the phone, or in an informal gathering, the safest option as a
follow-up step is to put everything in writing.
2. Provide Details: An agreement between two parties ensures the proper execution of any contract. Formal
contracts comprise terms for settling disputes including the state in which it is to be arbitrated.
3. Provide Legal Backup: The most important reason behind having a sales agreement is to protect both parties
from legal disputes. Agreement of sale helps the court decide if there was a valid contract by examining the
contents of the document and the subsequent actions of both parties.
3. An agreement of sale includes the following terms
• Date of Execution
• Details of Buyer and Seller (Both Parties)
• Details of Witnesses
• Identification of Parties and Property
• Earnest Money Deposit
• Items Included and Excluded in Sale
• Contingencies
• Disclosures
• Price and Terms
• Closing Date and Costs
4.What is a Sale Deed?
A Sale Deed is a document that is created when full payment is made by the buyer to the seller when
the actual transfer of the property takes place. The benefit of a sale deed is simply getting legal
recognition for your sale transaction. It clearly lays down the description of the property, both
parties and their rights and responsibilities. It can be used as evidence in case of a legal dispute.
It is an important legal document executed between the seller and the purchaser during the time of
purchasing the property. Here, the ownership changes from the seller to the buyer. Aflat sale deedis
essentially a proof of property sale deed transfer outlining the rights and obligations of each party.
The following are the steps to transfer property through Sale Deed:
1. Understanding Requirements: Hire a lawyer and clearly discuss all the requirements.
2. Drafting Procedure: Based on the requirements, the draft of sale deed agreement can be prepared within 3
working days for review and approval.
3. Printing Sale Deed: Once the draft is approved, the sale deed can be printed on a non-judicial stamp paper.
4. Seeking an Appointment with the Sub-Registrar: Reach out to the Sub-Registrar’s office under whose
jurisdiction the property comes under through the lawyer.
5. Getting the Sale Deed Registered: The Sub-Registrar signs the documents in the presence of the buyer, two
witnesses and the lawyer. It then gets registered after paying the registration fees.
6. Registered Sale Deed: Once it is signed and the payment is made, the registered sale deed is issued by the
Sub-Registrar’s office.
Clauses in a Sale Deed
• Parties involved in the Sale Deed (Vendor and Vendee): It should clearly mention the names and addresses
of both parties entering into the transaction. Moreover, both parties must be competent so that the validity
of the contract remains unaffected.
• Description of the Property: A legitimate sale deed should include a complete description of the belongings
concerning the sale’s concerning the matter. It should encompass identity number, overall plot area,
production information in addition to its region with its surrounding areas. An agenda of the belongings
should be covered within the sale deed to outline the location wherein the belongings are virtually situated.
• The Sale Consideration: A sale deedought to consist of the clause declaring the sale consideration/quantity
as agreed between the vendor and the customer which needs to be paid with the aid of using the customer
to the vendor at the execution of the sale deed. A sale quantity ought to be definitely said in the deed for
sale as agreed in the settlement to promote so that there ought to now no longer be any onus at the events
to the transaction.
• Delivery of the Deed and Possession of the Property
• Indemnity Clause and the Encumbrance Clause
• Liability in case of a Default
• Registration and Witnesses
• Right to Quiet Enjoyment of Property
• Reddendum Clause
5.Is the sale deed the same as the conveyance deed?
The phrase ‘transfer of title’ is used in a sale deed, meaning the transfer of ownership. It is the
clause that specifies when the title in the property is transferred to the buyer on the basis of
ownership. It can also be called a conveyance deed. It specifies the intention of the seller to transfer
ownership to the buyer. All sale deeds can be conveyance deeds but not all conveyance deeds are
sale deeds. Conveyance deed is a slightly broader term used in a property ownership transfer. \
6.A sale deed includes the following details
A sale deed includes the basic details:
• Name and address of buyer and seller
• A detailed description of the property
• Total payment required for the sales
• Mode of payment
• Date when the payment is to be made
For instance, a Sale Deed sample for a flat consists of the date of execution, name of the property
owner, their father or husbands name, occupation and age. If the buyer is a minor, then the name of
the representative is to be mentioned. In the next paragraph comes the details of the buyer such as
name, age, occupation etc.
7.Sale agreement at the time of property registration
It is a settled proposition of law that the sale agreement comes into life while the seller has the same
opinion to promote and the consumer has the same opinion to purchase, for an agreed
consideration on agreed terms. It may be oral or it may be through the trade of communications
which may or may not be signed. It can be through a report signed by both parties or a report in
parts. It also can be through the seller executing the report and turning in it to the consumer who
accepts it. In the end, the consumer has the copy signed through the seller and a seller has a replica
signed through the consumer.
An agreement forsale and purchase is a reciprocal arrangement imposing obligations and benefits on
both parties. The interpretation of this kind of agreement could be ruled through the legal guidelines
of agreement regarding the overall performance of reciprocal promises. However, in a contractual
agreement, a choice of a seller is reserved for repurchasing the assets offered through them. This
choice is like a concession or privilege and it could be exercised on strict fulfilment of the situations
at the fulfilment of which it is made exercisable.
The following documents are required to get the Sale Deed registered:
• Building Plan sanctioned by the Statutory Authority
• No Objection Certificate from Developer/Society (if formed) (The standard NOC formatis followed)
• Latest Tax paid receipts
• Latest electricity bill and receipt for the property There
• All documents of the property owner
8.Key differences between agreement of sale and sale deed
The agreement of sale and sale deed are two concepts that are interdependent on each other.
However, both have significant differences between them. The foremost is the purpose of the sale
and the sale deed. A sale can be described as the transfer of property which makes it an executory
contract whereas a sale deed is the document which is required for the actual transfer to take place,
which makes it an executed contract. For a sale, the seller has to bear the risk or liabilities of the
property until it is transferred in the future. On the contrary, risks can be immediately transferred to
the buyer when a sale deed is used.
Another stark difference between the agreement and sale deed can be observed in respect to the
registration process. For the former, it is not mandatory whereas registration of the latter is a
compulsory process. A non-judicial stamp paper is used for agreement of sales by the buyer and the
seller. However, for a sale deed, it is mandatory for the buyer to pay stamp duty which is 4-10% of
the property’s selling value. Through a sales agreement, a buyer does not gain the right to the
property which is the opposite for sales deeds. Another difference is that, a breach of agreement of
sale can cater to charges for damages whereas for sale deed, legal complaint or monetary
compensation for damage may be required.
A few clauses of the sale agreementinclude details of the property, details of the buyer and seller,
final price after negotiation along with payment schedule of property, and advances paid,
encumbrance and tax dues on the property to be cleared by the seller.
To summarise, a sale agreement is the forerunner of a sale deed. The sale agreement may or may
not result in an actual sale of the property. Hence, only when the sale deed is agreed upon and
signed by both buyer and seller, then the sale is finalised and completed.
9.Consequence of failure to execute a sale deed
It is risky to not register or execute a sale deed. An unregistered sale deed cannot be submitted as
evidence in Court. A sale deed is an official way of transferring rights of ownership of the property
from the seller to the buyer. Once the document is drafted, signed and registered, the ownership
rights get transferred to the buyer through the deal.
There are ways to get a certified copy of a lost sale deed. The first and most crucial step is to lodge
an FIR at the local police station when the document is lost. The FIR must be valid and therefore the
sign of the complainant in the complaint must be checked thoroughly. If the police do not find the
document, a non-traceable certificate is issued.
Advertising in newspapers is a way of advertising the loss to show to the Sub-Registrar that best
efforts have been made to locate the document. It should contain all the necessary details.
AGREEMENT FOR SALE
THIS AGREEMENT FOR SALE is made and executed on this the____________ day _____________ of
___________, 200-
BETWEEN
Mr. ____________s/o. ____________ aged_________________ years residing at
_____________Hereinafter called "The SELLER" (which expression shall mean and include her legal
heirs, successors, successors-in-interest, executors, administrators, legal representatives, attorneys
and assigns) of ONE PART.
AND
Mr. ______________ s /o __________ aged ________ years residing at__________ ___Hereinafter
referred as "The PURCHASER" (represented by his power of attorney) which expression shall mean
and include his heirs, successors, executors, administrators, legal representatives, attorneys and
assigns of the OTHER PART.
WHEREAS THE SELLER is the absolute owner in possession and enjoyment of the more fully
described in the schedule hereunder and hereafter called the "SCHEDULE PROPERTY.
WHEREAS the property more fully described in the schedule hereunder is the self acquired property
of the SELLER who purchased the same from Mr._____________ in and by sale deed dated
_____________ and registered as Doct No._________of
Book1VolumeNo________________Pagenos._____to_________, registered on and filed on the file
of the Sub-Registrar,
WHEREAS the SELLER is the absolute owner of the property and he has been enjoying the same with
absolute right and he has clear and marketable title to the Schedule Property
WHEREAS the SELLER being in need of funds for the purpose of ________________ has decided to
sell the property more fully described in the Schedule hereunder and the PURCHASER has offered to
purchase the same..
WHEREAS the SELLER offered to sell and transfer the schedule property to the PURCHASER for a sale
consideration of Rs.___________(Rupees___________ only) and the PURCHASER herein has agreed
to purchase the same for the aforesaid consideration on the following terms and conditions:
NOW THIS AGREEMENT WITNESSETH AS FOLLOWS:
The Sale consideration of the Schedule Property is fixed at Rs. __________ (Rupees________ only).
The PURCHASER has paid a sum of Rs.___________(Rupees _________ only) by cash/ cheque /D.D.
bearing No _________ drawn on ___________ dated________ as advance, the receipt of which sum
the SELLER hereby acknowledges.
The balance payment of Rs._____________(Rupees _________ only) will be paid by the PURCHASER
to the SELLER at the time of execution of the absolute Sale Deed and thus completing the Sale
transaction.
The parties herein covenant to complete the Sale transaction and to execute the Absolute Sale Deed
by the end of
The SELLER confirms with the PURCHASER that he/she has not entered into any agreement for sale,
mortgage or exchange whatsoever with any other person relating to the Schedule Property of this
Agreement.
· The SELLER hereby assures the PURCHASER and he/she has absolute power to convey the
same and there are no encumbrances, liens, charges, Government dues, attachments, acquisition, or
requisition, proceedings etc.
The SELLER agrees to put the purchaser in absolute and vacant possession of the schedule property
after executing the sale deed and registering the same in the jurisdictional Sub-Registrar's office.
The SELLER covenants with the purchaser that he/she shall not do any act, deed or thing creating
any charge, lien or encumbrance in respect of the schedule property during the subsistence of this
Agreement.
The SELLER has specifically agreed and covenants with the PURCHASER that he/she shall do all acts,
deeds and things which are necessary and requisite to convey absolute and marketable title in
respect of the schedule property in favour of the PURCHASER or his nominee.
IT IS AGREED between the parties that all expenses towards Stamp Duty and Registration charges
shall be borne by the PURCHASER only.
· The PURCHASER shall have the right to nominate or assign his right under this agreement to
any person / persons of his choice and the SELLER shall execute the Sale Deed as per terms and
conditions of this Agreement in favour of the PURCHASER or his nominee or assignee.
· The SELLER has agreed to get consent deed duly executed to this Sale transaction from his
wife/her husband, sons and daughters on or before date of registration of Sale Deed and assured
that they all join to execute sale deed in favour of the purchaser.
It is hereby expressly provided and agreed by the parties here to that both parties are entitled to
enforce specific performance of the agreement against each other in case of breach of any
conditions mentioned in this Agreement.
The original of the "AGREEMENT" signed by both the parties shall be with the PURCHASER and copy
of the same similarly signed shall be with the SELLER.
SCHEDULE
IN WITNESS WHEREOF the SELLER and the PURCHASER have signed this Agreement of Sale on the
day month and year herein above mentioned in the presence of the witnesses:
WITNESSES:
1.
2.
Signed by SELLER_____________
In presence of
Signed by PURCHASER______________
In presence of
Sale deed
A sale deed is an essential document through which the ownership of a property is transferred from
one person to another. A sale deed of property is necessary for purchasing and registering a
property. The property is registered based on the details mentioned in the sale deed.
The buyer of a property mentioned in the sale deed property will become the new legal owner of
the property after its registration. The article provides the sale deed meaning, format sale deed,
contents of the sale deed, the agreement to sale deed and the execution of the sale deed.
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What is Sale Deed?
The meaning of sale deed refers to a legal document that outlines the terms and conditions of the
sale. It is executed by the seller and the buyer for the transfer of ownership of the property. It
outlines the important information regarding the price to be paid for buying the property,
description of the property, how and when the property ownership will get transferred to the buyer,
etc.
It is an essential document as it is the proof of ownership of the property. It legally reports the proof
of the sale of property from the seller to the buyer. The sale/purchase of the property is not legally
complete until the sale deed is signed by the buyer and the seller and is registered
Execution of a Sale Deed?
As per the Indian Registration Act, 1908, an agreement for the transfer of an interest in immovable
property of value more than Rs.100, is required to be registered. Thus, the sale deed of a property,
such as a flat, building or land must be registered for the sale to be legally valid. The sale deed is
executed by two parties, i.e. seller and buyer. The seller is the person who is selling or transferring
his/her ownership of a property. The buyer is the person who purchases the ownership of a property
for consideration.
The sale deed must be registered in the local Sub-Registrar’s office. An unregistered sale deed has no
value in the eyes of law. The sale deed is made on non-judicial stamp paper, that is purchased as per
the value prescribed by the stamp duty act of a state.
The amount of stamp duty levied on properties differs from one state to another. The charges on
stamp duty vary from 4% to 6% on the property’s sale value. The sale/purchase of a property is valid
when the sale deed is registered by a Sub-Registrar and when the buyer and seller sign it in the
presence of at least two witnesses.
Elements of a Sale Deed
The sale deed must contain the below elements/clauses:
Name and address of the executing parties
The sale deed must specify the name, age, address and contact number of the buyers and the
sellers.
Description of the property
The complete address of the property and description and type of property such as residential flat,
Kothi, bungalow, shop, office, etc., should be mentioned. The property’s details, such as the
complete address, area of the property and dimensions must be mentioned in the sale deed. It
should include the property schedule to define the accurate location of the property.
Sale consideration
The sale price agreed between buyer and seller, i.e the amount which the buyer has to pay to the
seller upon the execution of the sale deed must be mentioned in the sale deed. Also if any advance
has already been paid, it should also be specified in the deed.
The mode of payment such as through a cheque, demand draft, or an online transfer is also
important and should be mentioned in the sale deed. If the sale amount is paid in instalments, the
date of each instalment should also be mentioned in the deed. It should mention the receipts of the
sale transaction.
Passing the title
The sale deed should specify the time when the title of the property will get transferred to the
buyer. All the documents related to the property must also be handed over to the buyer. It should
provide the information that the possession of the property will be transferred to the buyer by the
seller after the completion of the registration process. It should also state the actual date of delivery
of possession of the property.
Indemnity
Make sure that the title of the property is free from any charge, litigation or encumbrances, i.e. any
other person does not have the right to the property to be transferred to the buyer. In case such a
situation arises, the seller shall be made liable to indemnify the buyer against any loss.
The seller should clear all statutory charges such as property tax, electricity bills, water bills, society
and maintenance charges and all other dues before the sale deed is executed. It ensures that the
seller frees the buyers from all the previous loans, taxes, and charges related to the property. Also,
the seller should pay any loans and mortgages before finalising the sale of the property.
Registration
A sale deed is not legally binding unless it is registered in the sub-registrar office. Both the buyer and
the seller along with their witness must be present at the registrar’s office on the fixed date for the
registration of the deed. The stamp duty and registration fees have to be paid for getting the
registration done.
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What is the Process For Getting a Sale Deed?
 A sale deed must be prepared by a buyer of a property after obtaining the required documents from
the seller. The buyer may consult an advocate or legal professional to ensure that the seller is the
owner of the property and the seller has the title deeds to sell the property.
The advocate will prepare the sale deed containing all the clauses/elements of the sale deed. Once,
the sale deed is prepared by the buyer or buyer’s advocate, the sale deed is forwarded to the seller.
When the seller approves the contents of the sale deed, it is finalised and the parties can proceed to
register it in the sub-registrar office.
Documents Required for Sale Deed
Certain essential documents are required from the seller of the property which ensures that the
seller is the property owner for preparing a sale deed. The documents required to prepare the sale
deed are as follows:
• Sale agreement: A sale agreement is executed between the buyer and seller before the sale deed is
prepared. The sale agreement shows the intention of the seller to sell the property in favour of the buyer. It
includes all the terms and conditions of the sale, the possession date, the payment plan, the property
specifications, etc.
• Payment receipts: The payment receipts of a property, such as electricity payment receipts, water payment
receipts, etc., should be collected from the seller before preparing the sale deed.
• Property tax receipt: An owner of a property should pay the property tax. The property tax receipts should
be collected from the seller. It helps to verify the legal status of the seller’s ownership over the property.
• Encumbrance certificate: An encumbrance certificate of the property is required to declare that the
property does not have any pending legal dues, loans or mortgages.
• Copy of the building/layout plan: The layout/building plan states that the land/structure of the property is
legal and made according to the rules and regulations.
• No Objection Certificate (NOC): In the case of a sale of a flat/building, the developer must get the NOC from
different government authorities. The buyer must collect the NOCs from the developer.
• Completion certificate: In case of a sale of a flat/building, the buyer must obtain the completion certificate
from the developer. The completion certificate establishes the fact that the building is constructed according
to an approved plan.
• Occupancy certificate: In case of a sale of a flat/building, the buyer must obtain the occupancy certificate
before execution of the sale deed. The occupancy certificate ensures that the property is ready to be
occupied and the construction has been done according to the approved plan.
• Possession letter: The possession letter is given to the buyer by the developer in the case of the sale of a
flat/building.
Difference Between Sale Deed and Sale Agreement
A sale agreement is an agreement between the buyer and seller that the property will be sold by the
seller and the buyer will purchase the property by paying the required amount for the sale. The sale
agreement does not transfer the ownership of the property from the seller to the buyer. It only
shows the intention of the future sale.
Below are the differences between the sale deed and the sale agreement:
Getting a Certified Copy of Sale Deed
The sale deed is an important document. It acts as a title deed ensuring the buyer has the ownership
of the property. Thus, the property owner must keep the sale deed in a safe place. Any person can
obtain a certified copy of the sale deed from the sub-registrar office where it is registered. A person
can file an application to the sub-registrar for obtaining a certified copy of the sale deed and pay the
required fee. The sub-registrar will issue the copy of the certified copy of the sale deed within 2
weeks.
However, if the property owner loses the sale deed, he/she must file a complaint at the nearest
police station. A non-traceable certificate is issued to the property owner after filing the complaint
(FIR) at the police station. The property owner should publish an advertisement in the newspaper
about the loss of the sale deed after getting the non-traceable certificate. The property owner
should file an affidavit and application and pay a fee to the sub-registrar office to get a certified copy
of the sale deed.
 The affidavit must be notarized and contain the attachments of the copy of FIR, advertisement, non-
traceable certificate and details of the property. It must also contain a signed undertaking stating
that the information in the affidavit is genuine. After the process is complete, the sub-registrar office
will issue the certified copy of the sale deed in 2-4 weeks.
What is the Cancellation of a Sale Deed?
Either party, i.e. the buyer or seller, can cancel the sale deed by filing a suit for cancellation in court
when the other party does not agree. The buyer and seller can even cancel the sale deed by mutual
consent by registering a cancellation deed. When the sale deed is cancelled, it will result in the
cancellation of the sale of the property and the property ownership will revert back to the seller
mentioned in the cancelled sale deed.
The Specific Relief Act, 1963, provides the conditions under which a sale deed can be cancelled by
either party, which are as follows:
• The sale deed should be registered under the Indian Registration Act, 1908.
• The individual feels that the sale deed is voidable or has a doubt that the deed will cause him/her injury.
Upon cancellation of the sale deed, the court will send a copy of its decree of cancellation to the
sub-registrar office where the sale deed was registered. The sub-registrar officer will note the facts
of the cancellation of the sale deed.
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Points to Remember When Executing a Sale Deed
• The sale deed must include a clause that indicates the transfer of ownership rights to the buyer after the
purchase is complete.
• The title of the property must be free from all encumbrances.
• The buyer must verify the encumbrance status of the property from the sub-registrar office.
• All utility bills, including water and electricity bills, property tax, etc., related to the property must be paid.
Conclusion
A sale deed is a document which establishes property ownership. It also includes the details related
to the property, buyer and seller, rights of the buyer, etc. The sale deed establishes the ownership of
the buyer over the property. The buyer mentioned in the sale deed is the legal owner of the
property. However, the sale deed must be registered with the sub-registrar office for it to be valid.
Without sale deed registration, the ownership of the property will not get transferred to the buyer
Difference between Sales Deed and Sales Agreement
1. A sale deed is an actual transfer of ownership of a property. A sale agreement is a promise of a future
transfer of property ownership.
2. A sale deed refers to the immediate and complete sale of the property. A sale agreement indicates the sale
of the property in the future.
3. Under the sale deed, the buyer is responsible for the risk associated with the property. Until the sale of the
property, the seller is responsible for bearing the risk associated with the property.
4. A sale deed is a contract that is executed. A sale agreement is an executing contract, i.e. yet to be executed
in the future
5. A breach of sale results in a legal case for monetary compensation in the form of damages, injunction or
execution. A breach of the sale agreement results only in a suit for damages.
6. It is mandatory to register a sale deed and the buyer is liable to pay the stamp duty. The registration of the
sale agreement depends on the rules of the state. Registration is mandatory in some states while it is not
mandatory in other states
7. Under the sale deed, the rights and claims of the property are handed over to the buyer. The sale agreement
only gives the buyer the right to purchase a property in the future.