iv). (ANY OTHER TERMS AND CONDITIONS TO BE COMPLIED BY BOTH THE PARTIES, TO BENEFIT THE SOCIETY AT LARGE CAN BE WRITTEN HERE).
IN WITNESS WHEREOF the parties hereto have hereunto set and subscribed their respective hands on the day hereinbelow mentioned. The contents of the agreement was read aloud and explained to both the signatories, which they had understood, prior to their affixing signature.
Dated on the ..... at the place: Delhi.
Mr...., the first party. Sd/-.
Mr....., Karta/ Manager of the 2nd party. Sd/-.
Witnesses:-
Certified that, the witnesses who signs to witness the signatures of the parties are not related to or dependent of the parties.
1. Mr......, Permanent address:.... Sd/-, date, time....
2. Mr......, Permanent address:.... Sd/-, date, time....
General points about above Agreement, and all other agreements:-
1. Number of copies to be prepared:- If to be registered at the Sub-Registrar's office, only one Original is sufficient. Certified copies can be obtained later. However, if it is decided, not to register, it may be prepared and signed in two copies (in other words 1 + 1 means original with one copy), for safe custody of each party.
2. It is not a legal necessity that, each party and witness should be available at the same time for signing the document. One person can sign, and later, conveniently the another can sign. The only condition is, the person who had already signed should identify his signature and tell others. The best method is, by putting a specimen signature in a waste paper and permitting the other party/ witness to compare and get satisfied.
3. Not to give line space between paras, to prevent forgery in future.
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RENT AGREEMENT
Para 37 of the Chapter. The Theory of Rent Agreement is normally not at all understood by the people. The Agreement which is entered upon between the parties is not going to help the Landlord to evict the tenant. Eviction of the tenant is governed by the term “Statutory tenant”, which is common to all the Rent control and eviction laws. At the time of eviction proceedings, the tenant goes to the extent that, signatures affixed upon the rent agreement are not his.
38. To a client who have only one house, but want to give on rent, the Author always give advice that, it is better to starve, than thinking of collecting rent to meet some expenses. The reason is, the laws are made to protect the weaker against the stronger; but normally the tenant remains stronger. Following terms and conditions are adviced to be added, which may not be found in any other Specimens of Rent Agreement.
39. When this book is written, the blank format of Rent Agreement is available with almost every Typist, Stamp Paper shop, Cyber Café etc. It is further presumed that, the person buying this book, have access to one more book of the same nature. No benefit will be gained, by repeating those provisions in the format, on the other hand, the special provisions written, based on Experience in the Litigation, may remain un-noticed.
39.1. Regarding Rental matters, eventhough it is initially looking attractive, to get Rental Income from “now-not required rooms”, that had created Lakhs of rupees loss, in the way of compensation, and a threat of 6 months imprisonment, to a Landlord. To know that, complete Judgment in the case of Chiranji Lal. Versus Ajay Kumar Sood, 1996 Legal Eagle(Cri) 1928 : 1997 (11) SCC 336.
40. Special provisions are incorporated, to ensure that, in future if any of the parties will decide to forget the provisions of rent agreement, the Courts will not have to waste a lot of time to decide the issues to be framed:
i) The Tenant is operating Savings Bank Account No…. at the Bank…… The signatures affixed in the Rent Agreement are same as the specimen signature at the said Account, a document issued by the officials of the said bank, certifying specimen signature, is Annexed herewith as Annexure No…. to prove this factum.
ii) The tenant agrees to vacate the premises at the end of term specified in this Rent Agreement. However, if any litigation will have to be fought, he will never claim the protections of a Statutory tenant. The legal advice is obtained to the effect that, if the tenant is willing to forfeit his certain mode of defence, the said agreement is legal and binding.
iii) The tenant is aware of the following family members of the landlord and their requirement of getting independent accommodation at the end of tenancy period, for which the tenanted portion can be used.
iv) The tenant is aware that, the building is … yrs old and it requires re-building and the purpose of leasing out the property is to raise fund for the said re-building. However, after vacating the premises for the purpose of re-building, the tenant will not retain any claim for re-entry.
v) The tenant will never get a sub-tenant, and not even in the form of a Relative or Paying Guest. Only … members of the family of the tenant will be the permanent residents of the tenanted property and no-one other than them will be permitted to stay. That alone is sufficient to get eviction done.
Para 41. Regarding Rent and Eviction, there is an interesting judgment by Hon’ble Mr. Justice Dalveer Bhandari, reported as Kirpal Singh & Anr Versus Wazir Singh & Others, 2001 Legal Eagle(Cri) 2037 : 2001 CrLJ 1566 (Delhi High Court): 2000 LE(Del) 751 : “The Landlord/ complainant has been harassed for almost four decades and was compelled to spend most of his life in the court proceedings. All these years, the complainant was pushed from pillars to posts. Perhaps, this must be one of the most exceptional cases in which admittedly the real owner of the shop was deprived of its possession and use for almost four decades and during this period he was not paid a penny as a rent or compensation in any form. (Note: also he had to spend money to get the possession of his Shop, during these 40 years – Author). This indeed is a sorry tale of how an honest and real owner can suffer for decades in a legal tangle and the real owner (complainant) is deprived from the possession and use the said shop. Even if the accused persons' entry into the shop was lawful the accused persons retained it unlawfully and dishonestly for more than 37 years (from 24.6.1963). They are clearly guilty of committing continuous trespass for all these years which is punishable under Section 448 IPC. The Hon'ble Supreme Court in the case of Gokak Patel case , observed as under: (At para 14 of the Gokak Patel Volkart Limited Versus Dundayya Gurushiddaiah Hiremath & Ors., 1991 Legal Eagle(Cri) 83 : 1991 CrLJ(SC) 207): "House trespass is punishable under Section 448 of the Indian Penal Code. When entry into or upon property in possession of another is lawful then unlawfully remaining upon such property with the object of intimidating, insulting or annoying the person in possession of the property would be criminal trespass. The offence would be continuing so long as the trespass is not lifted or vacated and intimidation, insult or annoyance of the person legally in possession of the property is not stopped". When this revision petition was filed by the Landlord/ complainant was about 90 years and during the pendency of this petition he has died and his son (Gurdeep Singh) is contesting this petition. The complainant in his entire lifetime could not get possession of the shop despite the fact that he was the real owner of the shop. He did not also get even a penny as a rent or compensation in last 37 years. How can such persons ever have any respect for the rule of law or the judicial system? This is happening because of the tremendous delay in disposal of such like matters in Courts. Like the Landlord/ Complainant/ Revision petitioner many other litigants are suffering in silence in the same way. This is happening primarily because of inadequate infrastructure and inadequate number of judicial officers. The Centre and State Governments must look into this aspect in all seriousness and virtually on the war footing provide necessary infrastructure of court rooms and provide adequate number of judicial officers and supporting staff. Otherwise the judicial system can hardly acquire any legitimacy or credibility which is absolutely imperative for the smooth functioning of the democracy and rule of law. I direct that the possession of the shop in question be restored to the complainant's son Gurdeep Singh forthwith”.
WHY PREFER ‘CIVIL SUIT’ TO ‘PVT CRIMINAL COMPLAINT’:
42. The above quoted judgement is very important for writing a Pleading Book and also for Advocate Consultation. Cause of action for the said Case had been the “Shop No. 30 in Gokhale Market, Tis Hazari, Delhi”, which place is just in front of Tis Hazari Courts, Delhi; where the Trial Court and First Appellate Court for the said place is located. It means, to attend hearing, the Landlord/ Complainant and Occupants/ Accused persons had no need to travel even up to bus stand to attend the Hearings. However, how the delay to evict them had caused ? The Private Criminal Complaint might have been filed in the month of July 1963. Impugning the Punishments given by the Magistrate Court, the Crl.Appeal No.54/98 and Crl.Appeal No.52/98 were filed, in the year 1998, means the Trial Court took 35 years to compelte the Trial. The Sessions Court took only one year to decide the Criminal Appeals. Thus the Criminal Revision Petition No. 253 of 1999 was decided on 14-12-2000. It means, maximum time was spend in the Magistrate Court only.
43. The main reason is, “wrong forum” was selected. The general belief is, if a Criminal Case is launched, the other party will submit to the wishes of the Complainant. That is possible only in those persons who are looking forward for a Government Job. For all others, the Police Case, Criminal Trial and Jail are not serious. On the other hand, the Landlord will be wasting time. In a criminal case, normally no evidence can be recorded or proceedings can take place unless all the Accused persons are present. It means, if there is only one Accused person, case will run smoothly. If there are many accused persons, and the Complaint is not Politically interested or not supported by the Local Police, on each date of hearing, each accused person will prefer to be absent, and the harassment will be suffered by the Complainant and his witnesses. This applies even to Revision proceedings.
44. Another disadvantage of criminal cases is, if the offence is not a threat to the entire society, even in cases of causing death, (that is where a death is not a murder), the Courts will not imprison the accused person, but will leave him outside (= will set him at large), on “Probation”. The reason is, if he will be send to jail for a few days, he may come out as an “agent” or “student” or any big criminal, and a bigger threat to the society.
45. Had the Civil Court Case/ Suit of “Declaration and Mandatory injunction” been filed, even in the absence of Defendant, the case must have been proceeded and the Eviction might have been passed within a couple of years. Thus, Late Mr. Wazir Singh had selected a wrong forum and he had to wait for ever to get the eviction done. The said Civil Suit also must have been filed at the same Tis Hazari Courts, Delhi. In Eviction Suits, the ordinary objections by Tenant to delay are: (1) Prove landlord’s ownership. (2) Prove that Owner is not having any other accommodation, etc. All such points had no place in the above cited case, because it was allotted by the Ministry of Rehabilitation as a displaced person from Pakistan, and the conveyance deed was executed in his favour by the Ministry of Rehabilitation on 29.5.1953.
IMPORTANCE OF LEGAL ADVICE PRIOR TO LITIGATIONS
46. There is one more point to learn from this case. In the year 1963, why the Advocate might have filed Criminal Case only and not Civil Suit. One of the answers may be the unwillingness by the client to pay requisite Advocate fees. In a Criminal Case, the normal Court fees is Rs.1-25. In a Civil Suit, thousands of rupees Court Fees will have to be paid PLUS the Advocate fees. Thus, those who are reading this Book as “Litigant In Person” please note that, if you will try to starve an Advocate by giving minimum Cash/fees, he may file a Wrong Case, being the major portion of money you give will be spend as his Fees, typing charges etc. Thus the proverb of “do not tell lies to your Advocate and Doctor” becomes true in this Case. Had Mr. Wazir Singh been honest to his own Advocate in the year 1963, he must have got Possession of his shop by the year 1965. There were some communication gap, which resulted in the case finally decided in the year 2000.
47. Conveyancing Deeds which are prepared in the same format of Affidavits or Agreements, thus no separate Specimens are not provided, to prevent duplication of efforts:-
Cancellation Deeds.
Adoption Deed.
Apprenticeship Deed.
Arbitration Agreement.
Assignments.
Compromise Deeds.
Easements Rights Agreements.
Endowment Trust Agreements.
Exchange of Properties Agreements.
Family Settlements. Etc.
48. Prior to preparing/ drafting the Conveyance Deeds in above Categories, it is necessary to read Text Books and relevant Bare Acts and Case Law.
49. CODICIL:- Each and every documents, once prepared, if some addition is required, need not be made afresh, only the addition need to be written in the same manner and legal procedures, and kept with the previous document. In Fact, the word “Codicil” is defined in the Indian Succession Act, 1925, Section 2(b) as follows: codicil means an instrument made in relation to a Will, and explaining, altering or adding to its dispositions, and shall be deemed to form part of the Will”.
50. However, the same word “Codicil” is used in relation to other conveyance documents in the following Judgments:
51. Partnership Deed – Codicil to the said Partnership Deed – Example of - Indeed, in the instant case the 5 partners of accused No. 1 after drawing up an agreement to carry on business as partners with effect from 1-11-1975 appended a codicil to the partnership deed recording as under :- "The partners of the firm have started a Branch in 59, Perianna Maistry Street, Madras-3 in the name of Nadira Leather Co. and a Tannery in Thuthipet from April, 1976 and the profit and loss of these belong to this firm T. Azeezur Rehman and Co. This is to be treated as part and parcel of partnership deed dated 13-11-1975." Para 13 of T.Azeezur Rehman and Co. Versus M/s.Super Supplies, 2008 CrLJ 311 (Delhi).
52. Family Settlement - Codicil to the said Family settlement Deed – Example of – In the case: Bhabhuti Singh (Since deceased) Versus Bhagauti Prasad (since deceased) & Anr., 2004 JIR 936 (Allahabad); the word “codicil” can be read related to “Family settlement document”.
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WILL and CODICIL
1. When a person dies, leaving properties behind, if he died without prescribing how the properties are to be disposed off after his death, it is told that, he had died intestate. The word Will is defined in the Legal Eagle (Delhi High Court) as follows: “A written and signed statement, made by an individual, which provides for the disposition of their property when they die”. The document codicil is also defined from the same place: “An amendment to an existing will. Does not mean that the will is totally changed; just to the extent of the codicil”.
2. It is a very deep subject. Thorough knowledge of Indian Succession Act, Succession Laws of all the Religions and Marriage Laws of all the Religions are necessary to know, what type of Will can be prepared which will benefit the Client. The General Law is, if a beneficiary is a Minor, it is better to appoint a Guardian for the said Child, in the said Will itself. Similarly, an Executant and his salary/ remuneration also may be determined. Otherwise, it will be presumed that, beneficiary himself is also the executant.
3. The purpose of this book is, only to show a few specimens which may withstand the Legal Challenge which may be raised by Opponents of our Clients. Thus, if more time is spend in writing a few Theories, that may result in Partial Knowledge in a subject.
4. The most peculiar law about Will and Codicil is, if it is in writing, according to Statute, it will have to be attested by two independent witnesses and signed by the testator. However, according to Judicial Judgement laid legal principles, even if the Testator ask a member of his family, to put signature on behalf of himself, that is also admissible. Even Oral will from death bed also to be honoured, in that case no witnesses are possible. Even a Registered Will complying all formalities can be disbelieved, if the manner of bequeathing is not believed. If the distribution of properties is not doing injustice, even oral will can be relied. Thus, to give legal advice, what is to be seen is, if all relatives are cordial, they should get their due share. If a relative have strained relation, share can be denied to him/her without any fear. However, if a person objecting Will can prove injustice, Will may be not believed by the Court.
SPECIMEN OF WILLs and Codicils.
WILL
1. This is the Will and last testament executed by Mrs....... aged ... years, wife of Shri Hnn, permanent resident of House No......,...., New Delhi. Prior to this I had not prepared any Will within my memory, however even if there are any correspondence to the said effect, out of my memory, I hereby cancel all of them. This Will is Testified and Registered in the Office of the Sub-Registrar, having territorial jurisdiction over the area of my residence. My Photograph is affixed at the top right side of this document. The Voters Identity Card issued to me by the Election Commission of India is bearing Serial Number....., which had been produced before the Sub-Registrar prior to Registration.
2. When this Will is prepared, the testator had been having sound mind and not under the influence of any intoxicant. Prior to issue of testifying this Will, the testator had been examined by the Psychiatrist, Dr..., having address of ...., on date..... The Certificate issued by the said Psychiatrist is enclosed as Annexure-1 to this Will.
3. The Testator is having following relatives, among whom her assets and liabilities are distributed:-
4. To the following relatives, no assets or liabilities are being distributed, for the reason of:-
5. The testator is having following Movable assets, and to whom that will be distributed/ belong is given as follows:-
Sl.No. Description To which relative that Asset is distributed. (Note: it can be written in a Schedule, either at the end of the Will or as an Annexure to it, however safe is to include within the body of Will – Author).
6. The testator is having following Immovable assets, and to whom that will be distributed/ belong is given as follows:-
Sl.No. Description To which relative that Asset is distributed.
Property 1:- .... The site plan prepared by the qualified architect for this immovable property is annexed as Annexure-2. The portion meant to be given to each of the relatives are marked in different colours, and their name is written at that place, and the said areas of each relatives are described as follows:-
Property 2:- .... The site plan prepared by the qualified architect for this immovable property is annexed as Annexure-3. The portion meant to be given to each of the relatives are marked in different colours, and their name is written at that place, and the said areas of each relatives are described as follows:-
Property 3:- .... The site plan prepared by the qualified architect for this immovable property is annexed as Annexure-4. The portion meant to be given to each of the relatives are marked in different colours, and their name is written at that place, and the said areas of each relatives are described as follows:-
7. The testator is having following liabilities, and to whom that will be distributed/ belong is given as follows:-
Sl.No. Description To which relative that Liability is distributed.
8. Assets and liabilities to be procured after this date:- This is an efforts to ensure that, there will be no necessity to re-make this Will again. Thus the testator hereby testifies that, the assets and liabilities to be acquired after this date will be distributed as follows:-
Sl. No. Name of the relative. What percentage he/ she will have to bear/ get.
9. Appointment of no Executors:- The Testator had clearly distributed the assets and liabilities, thus there is no need for an Executor of this Will, thus no Executors are hereby appointed. This is written to clarify the legal requirement as per Section 222 of the Indian Succession Act, 1925. All the relatives available had signed on the original of this Will, to acknowledge this factum. (Judgement 2009 Legal Eagle (J and K High Court) 144, Thoru Ram Vs. Rattan Lal. is complied while Drafting this paragraph).
Certified that, the above document had been read aloud and explained to me in my Mother-tongue, that is Haryanvi, prior to I had signed and affixed my Right Thumb impressions/ In witness thereof the testator had put her signature and thumb impressions upon this Will, in the presence of Attesting Witnesses:-
Testified at New Delhi on date:-....... Signature. RTI
Attesting witnesses Under Section 63(c) of the Indian Succession Act, 1925.
Following independent witnesses were present when the Testator had signed this document, and the signature of the witness had been affixed in the document, in the presence of the testator:- (There can be two or more witnesses).
Sl.No. Name, age, father/husband name. Permanent address. Identity proof.
Witnesses Under Section 222 of the Indian Succession Act, 1925; to ensure that Probate will not be needed to execute this will, that no Executor is appointed:- (This column and para 9 are optional, but that will save the expenses meant for Probate. To the best of knowledge of the Advocate who is drafting this, a simple Registered Will is sufficient to do Mutation of Land; or what else is required will be told by the Revenue Official/ Patwari, to protect his own job).
Sl.No. Name, age, father/husband name. Permanent address. Identity proof.
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CODICIL
1. This Codicil to the Will and last testament dated …., is hereby executed by Mrs....... aged ... years, wife of Shri Hnn, permanent resident of House No......, Gopal Nagar...., New Delhi; on dated…. At New Delhi.
2. Whereas the testator had executed her Will regarding her properties (movable and immovable) fully detailed in respective Schedules/ Annexures in favour of her legatees, as bequeathed therein.
3. And Whereas one of the legatees, namely:….. has expired, and there are no legally surviving successors for the said legatee. Thus the above mentioned Will needed to be altered and modified in the following manner: