Very Short Answer Type

1. 2. (a) ‘advocate’ means a person whose name is entered on the roll of advocates prepared and maintained by
a State Bar Council under the Advocates Act, 1961 (25 of 1961).
2. 2. (b) ‘advocate on record’ means an advocate who is entitled under these rules to act as well as to plead for a
party in the Court.
3. 2. (k) ‘judgment’ includes decree, order, sentence or determination of any Court, Tribunal, Judge or Judicial
Officer.
4. (2) (q) ‘Senior advocate’ means any advocate so designated under subsection (2) of section 16 of the
Advocates Act, 1961 (25 of 1961), and all such advocates whose names were borne on the roll of the senior
advocates of the Court immediately before the commencement of Chapter III of the Advocates Act, 1961.
5. Letter Patents Appeal (LPA) is an appeal from a decision of a single judge to another bench of the same court.
6. Sufficient cause, or good cause, refers to a legal determination that there exists sufficient reason to support a
case or decision.
7. Contempt of court is a legal violation committed by an individual who disobeys a judge or otherwise disrupts
the legal process in the courtroom. Contempt of court is broadly classified into two categories: criminal versus
civil, and direct versus indirect.
8. Pre audience: It is the right of being heard before another. The concept is believed to have started in English
practice, under the common law system. It means people of higher ranks will be heard before those who are
below them in ranks. When a court is under conflict, it follows this rule and this principle of conduct.
9. Quota/roll” means a roll of advocates prepared and maintained under this Act;
10. The Bar Council of India consists of members elected from each State Bar Council, and the Attorney General of
India and the Solicitor General of India who are ex-officio members.
11. Caveat in Latin means "let him beware" and comes from the verb cavēre, meaning "to be on guard."
12. Ethics are principles and values, which together with rules of conduct and laws, regulate a profession, such as
the legal profession. They act as an important guide to ensure right and proper conduct in the daily practise of
the law. Areas covered by ethical standards include: • Independence, honesty and integrity.
13. Legal Disability: The absence of legal capacity to conduct an act due to a lack of competent physical and
mental abilities. The term “disability” usually refers to a person's incapacity to exercise all of the legal rights
that only an average person would have.
14. Registration is the process of recording a document with an assigned officer and to keep it as public record.
The purpose of the Act is to consolidate the law relating to registration and it provide for the method of its
registration. It lays down what documents is compulsory for registration.
15. Under contempt of courts act
(a) “contempt of court” means civil contempt or criminal contempt;
(b) “civil contempt” means wilful disobedience to any judgment, decree, direction, order, writ or other process
of a court or wilful breach of an undertaking given to a court;
(c) “criminal contempt” means the publication (whether by words, spoken or written, or by signs, or by visible
representation, or otherwise) of any matter or the doing of any other act whatsoever which—
(i) scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court; or
(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or
(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any
other manner;
16. The Court observed that an apology for criminal contempt of court must be offered at the earliest since the
belated apology hardly shows the “contrition which is the essence of the purging of contempt”
17. Proportional representation (PR) refers to a type of electoral system under which subgroups of an electorate
are reflected proportionately in the elected body. The members are elected in accordance with the system of
proportional representation by means of the single transferable vote from amongst advocates on the electoral
roll of the State Bar Council.
18. Professional misconduct means dereliction of duty relating to Legal profession. Under S. 35 of the Advocates
Act, An Advocate is punishable not only for professional misconduct but also for other misconduct. Other
misconduct means a misconduct not directly connected with the legal profession.

pg. 1
 19. Under Contempt of courts act, A High Court shall have jurisdiction to inquire into or try a contempt of itself or
of any court subordinate to it, whether the contempt is alleged to have been committed within or outside the
local limits of its jurisdiction, and whether the person alleged to be guilty of contempt is within or outside such
limits.
20. Functions of State Bar Council: To admit persons as Advocates on its roll. To prepare and maintain such roll. To
entertain and determine cases of misconduct against Advocates on its roll. To safeguard the rights, privileges
and interests of Advocates on its roll.
21. Section 5 of the Limitation Act talks about the condonation of delay. It provides that the court can accept any
appeal or application when filed after the limitation period if the appellant or applicant shows that he had a
sufficient cause for not filing the appeal or application within the prescribed period.
22. Under Supreme Courrt Rules act: Judgment' includes decree, order, sentence or determination of any Court,
Trtbunal, Judge Or Judicial Officer.
23. Legal ethics can be simply defined as a code of conduct which may be written or unwritten. Such a code of
conduct is meant to regulate the behaviour of a practising legal professional towards the court, the presiding
judge, his client and his adversaries in the courtrooms.
24. The advocate has to practice for four years as an advocate and thereafter has to demonstrate to the Supreme
Court that they have started taking training with a Senior Advocate on record because they intend to become
an Advocate-on-record. After the expiry of one year's training, the advocate has to appear for an examination
conducted by the Supreme Court itself. After an advocate passes this examination they must have a registered
office within a radius of 10 miles from the Supreme Court building and a registered clerk. It is after this that
the Chamber Judge of the Supreme Court accepts them as an advocate-on-record.
25. An affidavit of service, also sometimes called a proof of service affidavit, is a type of affidavit that relates to
legal documents that are filed with a court as part of a legal proceeding.
26. Section 24 in THE ADVOCATES ACT, 1961 Persons who may be admitted as advocates on a State roll.—
(1) Subject to the provisions of this Act, and the rules made thereunder, a person shall be qualified to be
admitted as an advocate on a State roll, if he fulfills the following conditions, namely:—
(a) he is a citizen of India: Provided that subject to the other provisions contained in this Act, a national of any
other country may be admitted as an advocate on a State roll, if citizens of India, duly qualified, are permitted
to practise law in that other country;
(b) he has completed the age of twenty-one years;
(c) he has obtained a degree in law—
27. The Bar Council of India consists of members elected from each State Bar Council, and the Attorney General of
India and the Solicitor General of India who are ex-officio members. The members from the State Bar Councils
are elected for a period of five years.
The Council elects its own Chairman and Vice-Chairman for a period of two years from amongst its members.
28. REPRIMAND, punishment. The censure which in some cases a public office pronounces against an offender.
2. This species of punishment is used by legislative bodies to punish their members or others who have been
guilty of some impropriety of conduct towards them. The reprimand is usually pronounced by the speaker.

pg. 2
 Procedure for enrollment as advocate under SC rules,
Enrollment of Supreme Court Advocates

special provision for enrollment of certain Supreme Court advocates ( section 20 of advocate Act,1961 )

1) notwithstanding anything contained in this chapter, every advocate who was entitled as of right to practice in
the supreme court immediately before the appointed day and whose name is not entitled in any state roll may, within
the prescribed time, Express his intention in the prescribed form to the bar council of India for the entry of his name
in the role of a state bar council and on receipt thereof the bar council of India shall direct that the name of such
advocate shall, without payment of any fee, be entered in the role of that state bar council and the state bar council
concerned shall comply with such direction.

2) any entry in the state roll made in compliance with the direction of the bar council of India under subsection
(1) shall be made in under of seniority determined in accordance with the provisions of sub -section (3) of section 17.

Sub-section( 3) of section 17 says thus -

" Entries in each part of the roll of advocate prepared and maintained by a State bar council under this
section shall be in the order of seniority, and subject to any rule that may be made by the bar council of India in this
behalf such seniority shall be determined as follows -

(A) the seniority of an advocate referred to in clause (a) of the sub-section (1) shall be determined in accordance
with his date of enrolment under the Indian bar council Act,1961.

(B) The seniority of any person who was a senior advocate of the supreme court immediately before the
appointed day shall , for the purpose of the first part of the State roll, be determined in accordance with such
principles as the bar council of India may specify ;

(C) omitted

(D) the seniority of any other person who, on or after appointed Day, is enrolled as a senior advocate or is
admitted as an advocate shall be determined by the date of such enrolment or admission, as the case may be.

(E) Notwithstanding anything contained in class (a), the seniority of an attorney controlled ( whether before or
after commencement of the Advocate (Amendment )Act, 1980 as an advocate shall be determined in accordance with
the date of his enrollment as an attorney .

According to rule 2(c) of the supreme court rules,1966, upon an advocate being designated as a senior advocate,
the registrar shall communicate to all the High Courts and Secretary to the bar council of India and the secretary of
the state bar council concerned the name of the Said advocate and the date on which he was so designated.

According to rule 4 of the supreme court rules ,1966, any advocate not being a senior advocate may , on his fulfilling
the conditions laid down in rule 5, be registered in the court as an advocate on record.

According to rule 5 of the supreme court rules ,1966, no advocates shall qualify to be registered as an advocate on
record unless -

1) his name is, and has been, borne on the role of any state Bar Council for a period of not less than 3 years on the
date of commencement of his training as provided hereinafter;

2) he has undergone training for 1 year with an Advocate on record approved by the court, and has thereafter
passed such a test as may be held by the court for advocates who apply to be registrar as advocates on record
particulars whereof shall be notified in the official gazette.

A) anatomy shall be exempted from such a training and test; and

B) the chief justice may, in appropriate Cases, grant exemption from the requirement of training

pg. 3
3 ) he has an office in Delhi within a radius of 16 kilometres from the court house and gives a undertaking to employ,
within one month of his being registered as Advocate on record, a registered Clark, and

4) he paid a registration fee of 25 rupees.

According to rule 5-A of the supreme court rules, 1966, an advocate who has been convicted of an offence involving
moral turpitude shall not be eligible for a period of 2 years with effect from the date he has served out the sentence or
has paid the fine imposed on him.

Restrictions on the duties of Senior Advocates of Supreme Court -

According to part- I order IV rule ( 2) (B) of Supreme court rules, 1966 a Senior advocate shall not -

1) file a vakalatnama or act in any Court tribunal in India;

2) appear without an Advocate on record in the court or without a junior in any other Court or Tribunal in India ;

3) Accept instructions to draw pleading or affidavits, advise on evidence or do any drafting work of and analogous kind
in any Court or Tribunal in India or undertake conveyancing work of any kind whatsoever but his prohibition shall not
extend to Settling any such matter as, aforesaid in consultation with a junior;

4 ) accept directly from a client any brief for instructions to appear in any Court or Tribunal in India.

Explanation-

In this order-

(A) acting means filing an appearance or any pleadings in any Court of tribunals in India or any act (other than
pleadings) required or authorised by law to be done by a party in such Court or Tribunal either in person or by his
recognised agent or buy an advocate or attorney on his behalf.

(B)'Tribunal' includes any authority or Person legally authorised to take evidence and before whom advocates are by
or under any law for the time being in force , entitled to practise

(C) 'Junior' means an advocate other than a senior advocate.

pg. 4
 Functions of BCI,
Section 7 : Functions of Bar Council of India
(Note:- Section 7 renumbered as sub-section (1) thereof by Act 60 of 1973, Sec.7)

(1) The functions of the Bar council of India shall be

a. (Note:- Clause (a) omitted by Act 60of 1973, sec.7)

b. To lay down standards of professional conduct and etiquette for advances.

c. To lay down the procedure to be followed by its disciplinary committee and the disciplinary committee of each State
Bar Council

d. To safeguard the rights, privileges and interest of advocates

e. To promote and support law reform

f. To deal with and dispose of any matter arising under this Act, which may be referred to it by a State Bar Council.

g. To exercise general supervision and control over State Bar Councils

h. To promote legal education and to lay down standards of such education in consultation with the Universities in
India imparting such education and the State Bar Councils

i. To recognize Universities whose degree in law shall be a qualification for enrolment as an advocate and for that
purpose to visit and inspect Universities (Note:- Ins. by Act 70 of 1993, sec.3(I)) (or cause the State Bar Councils to visit
and inspect Universities in accordance with such directions as it may give in this behalf).

(ia) (Note:- Ins. by Act 60 of 1973, sec.7) to conduct seminars and organize talks on legal topics by eminent jurists and
publish journals and papers of legal interest.

(ib) to organize legal aid to the poor in the prescribed manner

(ic) to recognize on a reciprocal basis foreign qualifications in law obtained outside India for the purpose of admission
as advocate under this act.

j. To manage and invest the funds of the Bar Council

k. To provide for the election of its members

l. To perform all other functions conferred on it by or under this Act

m. To do all other things necessary for discharging the aforesaid functions:

(2) (Note:- Sib-section (2) and (3) ins. by Act 60 of 1973, sec.7) the Bar Council of India may constitute one or more
funds in the prescribed manner for the purpose of
(a) giving financial assistance to organize welfare schemes for indigent, disabled or other advocates.
(b) giving the legal aid or advice in accordance with the rules made in this behalf
(c) (Note:- Ins. by Act 70 of 1993, sec.3 (ii).) establishing law libraries
(3) That Bar Council of India my receive any grants, donations, gifts or benefactions for all or any of the purpose
specified in sub section (2) which shall be credited to the appropriate fund or funds constituted under that sub-
section.

pg. 5
 Rights of advocates under advocates act,
The Advocates act 1961 provides and protects the following rights to an advocate in India:

Right to Practice (Section 30)

The right to practice in the court is the exclusive right that is given to an advocate who is enrolled in the Bar Council of
India.

Section 30 of the Advocates act provides specific protections for the right of an advocate to practice in any court or
tribunal in India if his name is registered in the Bar Council list.

Section 30 of the Advocates act 1961 came into force on June 15, 2011. The Government of India issued a Gazette
notification on June 9, 2011, that section 30 of the Advocates act 1961 shall come into force from the date of June 15,
2011.

It was a major step taken by the government to provide the right to an advocate for the practice. After the
enforcement of this section, now an Indian advocate can practice in the Supreme Court, high court, other lower
courts, quasi-judicial courts, tribunals or before any person who has the legal authority to take the pieces of evidence.

Article 19 (1) (g) of the constitution of India also gives the general protection for the right to practice in court. Article
19 (1) (g) clearly says that “every person has the right to practice any profession, trade or business”.

Praveen Pandey Vs State of Madhya Pradesh

The court held in this case that if an advocate has been restricted from doing his legal work, it will be termed as a
violation of his right given under article 19 (1)(g) of the constitution of India.

Right to Pre -audience

Section 23 of the advocate Act 1961 deals with the right to pre audience rule. This rule can be seen as a privilege to an
advocate. It is the right of being heard before another is heard. In simple words, the law provides the right to advocate
who is upper in the hierarchy system.

The advocate hierarchy system in India is as follow:

Attorney General

Solicitor General

Additional Solicitor General

Second additional solicitor General

Advocate general of the state

Senior advocates

Other advocates

This is the advocate hierarchy in India. As per the right to pre-audience, the Attorney General will be the first advocate
who can represent his case first in the court of law before another advocate.

For example, an attorney general is representing his client in a case where a fresh advocate is representing the
opposing party in the case. In this situation, the Attorney General will be heard first.

This rule also gives a wider sense that an advocate has the right to represent his client before the court of law and he
has the right to speak before an audience present in the courtroom.

pg. 6
Right to freedom of speech and expression

An advocate while arguing in litigation cannot be stopped from speaking unless he violates the terms and rules of the
court of law. Article 19 (1) (a) of the constitution of India gives the right to freedom of speech and expression. This
fundamental right is available to all the citizens of India. Being an advocate a person can also enjoy the right to speech
and expression even in the court of law.

Right to enter any court and observe the proceedings

As per section 30 of the Advocates Act 1961, any person who has enrolled in the bar council of India can practice in
any Court of law in any tribunal. This section also enables the right of an advocate to enter into any courtroom to
observe the proceedings. The point will not affect whether he was connected to that case or not. An advocate has the
right to enter the Supreme Court to hear any live proceedings.

Right against arrest

An advocate is known as the judicial officer of the court. Section 135 of the civil procedure code exempt the advocates
from rest under civil case while he is:

Going to the court

Presiding his case in the court

Returning from the court

These are the circumstances in which the police cannot arrest an advocate in a civil matter.

Right to meet with accused

When an advocate takes any case in which the accused is in jail, the right to meet the accused person comes into
force. As per law, a person is innocent until proven guilty. So it becomes important for an advocate to understand the
case properly by meeting his client even in the jail to discuss all the related facts and evidence of the case which will
help an advocate to fight the case in the court of law.

An advocate can meet the accused even in jail however the meeting in jail will be limited. It is the right of an advocate
to meet his client even every day.

Right to secure the privacy of the communication

It is an exclusive right of an advocate given by section 129 of the Indian Evidence Act 1872. According to this section,
the advocate has the right to secure the privacy of the communication with his client. The advocate is not liable to tell
anybody about the discussion done between him and his client related to the case. Section 129 of the Indian evidence
Act 1872 also provides that no person can threaten an advocate to disclose the communication done between him and
his client.

Right to take the fee

Rule 11 of chapter 2 of part VI of bar council of India rules enables an advocate to take fees from his client. Any
advocate who has done something for his client or gives any service to any client for a person has the right to take a
fee from that person.

Right to refuse for a case

It is the right of an advocate that he can refuse to take the case which is dealing with illegal things.

Contempt of court,

pg. 7
 Procedure for filing leave petition
Meaning and Concept of Special Leave Petition (SLP)

Special Leave Petition (SLP) holds a chief place in the Judiciary of India. Supreme Court has been provided a residual
power that is to be exercised only in cases where arises a substantial question of law or gross injustice has been done.

Under this, the aggrieved party is provided a special permission to be heard in Apex Court in appeal against the order
or judgment of any court or tribunal in the territory of India. This is not an appeal but a petition filed for an appeal.
After the filing of SLP, the Supreme Court may hear the matter and if it deems fit may grant ‘leave’ and that petition
will be converted to appeal. After that SLP shall become an appeal and the court may hear the matter and accordingly
pass judgment.

Provision for Special Leave Petition (SLP) under Constitution of India

136. Special leave to appeal by the Supreme Court

Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from
any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India

Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces.

Article 136 of the Indian Constitution gives power to Supreme Court to grant special permission or leave to the
aggrieved party to appeal against the order or judgment passed by any court or any tribunal.

Time limit to file SLP

It can be filed against any judgment of High Court within 90 days from the date of judgment or

It can be filed within 60 days against the order of High Court refusing to grant the certificate of fitness for appeal to
Supreme Court.

Who can file SLP

SLP can be filed by aggrieved party against the judgment or order of refusal to grant certificate. SLP can be filed in a
case where a substantial question of law arises or gross injustice has been done. Under this, the aggrieved party is
provided a special permission to be heard in Apex Court in appeal against the order or judgment of any court or
tribunal in the territory of India. The aggrieved party has to give a brief synopsis of the facts and issues presented in
the case along with the list of dates.

The petitioner has to formulate questions of law to appeal against the judgment. Once SLP is registered and presented
in Supreme Court, the petitioner will get an opportunity of being heard before the court. Depending upon the merits
of the case, the Court will issue a notice to the opposite party and they will have to file a counter affidavit stating their
views. After this the court will decide whether to grant leave or not. If the leave is granted by Supreme Court then the
case is converted into a civil appeal and will be argued afresh in Supreme Court.

Case laws:

Laxmi & Co. v. Anand R Deshpande[3]

It was held by the Supreme Court that The court takes notice of subsequent events while hearing appeals under Article
136 of the Indian Constitution to shorten litigation, to preserve the rights of both the parties and to subserve the ends
of justice.

Kunhayammed v. State of Kerela[4]

It was held that The Court has a choice to grant SLP and if the court does not grant leave on its findings then the
appellate jurisdiction of the court does not come into existence.

pg. 8
 Duties of advocates towards court, client and Constitution
Advocate’s Duty Towards the Court
1. Act in a dignified manner.
During the presentation of his case and also while acting before a court, an advocate should act in a dignified manner.
He should at all times conduct himself with self-respect. However, whenever there is a proper ground for serious
complaint against a judicial officer, the advocate has a right and duty to submit his grievance to proper authorities.
2. Respect the court.
An advocate should always show respect towards the court. An advocate has to bear in mind that the dignity and
respect maintained towards the judicial office is essential for the survival of a free community.
3. Not communicate in private.
An advocate should not communicate in private to a judge with regard to any matter pending before the judge or any
other judge. An advocate should not influence the decision of a court in any matter using illegal or improper means
such as coercion, bribe, etc.
4. Refuse to act in an illegal manner towards the opposition.
An advocate should refuse to act in an illegal or improper manner towards the opposing counsel or the opposing
parties. He shall also use his best efforts to restrain and prevent his client from acting in any illegal, improper manner
or use unfair practices in any mater towards the judiciary, opposing counsel or the opposing parties.
5. Refuse to represent clients who insist on unfair means.
An advocate shall refuse to represent any client who insists on using unfair or improper means. An advocate shall
excise his own judgment in such matters. He shall not blindly follow the instructions of the client. He shall be dignified
in use of his language in correspondence and during arguments in court. He shall not scandalously damage the
reputation of the parties on false grounds during pleadings. He shall not use unparliamentary language during
arguments in the court.
6. Appear in proper dress code.
An advocate should appear in court at all times only in the dress prescribed under the Bar Council of India Rules and
his appearance should always be presentable.
7. Refuse to appear in front of relations.
An advocate should not enter an appearance, act, plead or practice in any way before a judicial authority if the sole or
any member of the bench is related to the advocate as the father, grandfather, son, grandson, uncle, brother, nephew,
first cousin, husband, wife, mother, daughter, sister, aunt, niece, father-in-law, mother-in-law, son-in-law, brother-in-
law, daughter-in-law, or sister-in-law.
8. Not to wear bands or gowns in public places.
An advocate should not wear bands or gowns in public places other than in courts, except on such ceremonial
occasions and at such places as the Bar Council of India or as the court may prescribe.
9. Not represent establishments of which he is a member.
An advocate should not appear in or before any judicial authority, for or against any establishment if he is a member
of the management of the establishment. This rule does not apply to a member appearing as “amicus curiae” or
without a fee on behalf of the Bar Council, Incorporated Law Society, or a Bar Association.
10. Not appear in matters of pecuniary interest.
An advocate should not act or plead in any matter in which he has financial interests. For instance, he should not act in
a bankruptcy petition when he is also a creditor of the bankrupt. He should also not accept a brief from a company of
which he is a Director.
11. Not stand as surety for the client.
An advocate should not stand as a surety or certify the soundness of a surety that his client requires for the purpose of
any legal proceedings.

pg. 9
Advocate’s Duty Towards the Client

1. Bound to accept briefs.

An advocate is bound to accept any brief in the courts or tribunals or before any other authority in or before which he
proposes to practice. He should levy fees that are at par with the fees collected by fellow advocates of his standing at
the Bar and the nature of the case. Special circumstances may justify his refusal to accept a particular brief.

2. Not withdraw from service.

An advocate should not ordinarily withdraw from serving a client once he has agreed to serve them. He can withdraw
only if he has a sufficient cause and by giving reasonable and sufficient notice to the client. Upon withdrawal, he shall
refund such part of the fee that has not accrued to the client.

3. Not appear in matters where he himself is a witness.

An advocate should not accept a brief or appear in a case in which he himself is a witness. If he has a reason to believe
that in due course of events he will be a witness, then he should not continue to appear for the client. He should retire
from the case without jeopardizing his client’s interests.

4. Full and frank disclosure to the client.

An advocate should, at the commencement of his engagement and during the continuance thereof, make all such full
and frank disclosure to his client relating to his connection with the parties and any interest in or about the
controversy as are likely to affect his client’s judgement in either engaging him or continuing the engagement.

5. Uphold the interest of the client.

It shall be the duty of an advocate fearlessly to uphold the interests of his client by all fair and honourable means. An
advocate shall do so without regard to any unpleasant consequences to himself or any other. He shall defend a person
accused of a crime regardless of his personal opinion as to the guilt of the accused. An advocate should always
remember that his loyalty is to the law, which requires that no man should be punished without adequate evidence.

6. Not suppress material or evidence.

An advocate appearing for the prosecution of a criminal trial should conduct the proceedings in a manner that does
not lead to the conviction of the innocent. An advocate shall by no means suppress any material or evidence, which
shall prove the innocence of the accused.

7. Not disclose the communications between the client and himself.

An advocate should not by any means, directly or indirectly, disclose the communications made by his client to him.
He also shall not disclose the advice given by him in the proceedings. However, he is liable to disclose if it violates
Section 126 of the Indian Evidence Act, 1872.

8. An advocate should not be a party to stir up or instigate litigation.

9. An advocate should not act on the instructions of any person other than his client or the client’s authorised agent.

10. Not charge depending on success of matters.

An advocate should not charge for his services depending on the success of the matter undertaken. He also shall not
charge for his services as a percentage of the amount or property received after the success of the matter.

11. Not receive interest in actionable claim.

An advocate should not trade or agree to receive any share or interest in any actionable claim. Nothing in this rule
shall apply to stock, shares, and debentures of government securities, or to any instruments, which are, for the time
being, by law or custom, negotiable or to any mercantile document of title to goods.

pg. 10
12. Not bid or purchase property arising of legal proceeding.
An advocate should not by any means bid for, or purchase, either in his own name or in any other name, for his own
benefit or for the benefit of any other person, any property sold in any legal proceeding in which he was in any way
professionally engaged. However, it does not prevent an advocate from bidding for or purchasing for his client any
property on behalf of the client provided the Advocate is expressly authorised in writing in this behalf.
13. Not bid or transfer property arising of legal proceeding.
An advocate should not by any means bid in court auction or acquire by way of sale, gift, exchange or any other mode
of transfer (either in his own name or in any other name for his own benefit or for the benefit of any other person),
any property which is the subject matter of any suit, appeal or other proceedings in which he is in any way
professionally engaged.
14. Not adjust fees against personal liability.
An advocate should not adjust fee payable to him by his client against his own personal liability to the client, which
does not arise in the course of his employment as an advocate.
15. An advocate should not misuse or take advantage of the confidence reposed in him by his client.
16. Keep proper accounts.
An advocate should always keep accounts of the clients’ money entrusted to him. The accounts should show the
amounts received from the client or on his behalf. The account should show along with the expenses incurred for him
and the deductions made on account of fees with respective dates and all other necessary particulars.
17. Divert money from accounts.
An advocate should mention in his accounts whether any monies received by him from the client are on account of
fees or expenses during the course of any proceeding or opinion. He shall not divert any part of the amounts received
for expenses as fees without written instruction from the client.
18. Intimate the client on amounts.
Where any amount is received or given to him on behalf of his client, the advocate must without any delay intimate
the client of the fact of such receipt.
19. Adjust fees after termination of proceedings.
An advocate shall after the termination of proceedings, be at liberty to adjust the fees due to him from the account of
the client. The balance in the account can be amount paid by client or an amount that has come in that proceeding.
Any amount left after the deduction of the fees and expenses from the account must be returned to the client.
20. Provide copy of accounts.
An advocate must provide the client with a copy of the client’s account maintained by him on demand, provided that
the necessary copying charge is paid.
21. An advocate shall not enter into arrangements whereby funds in his hands are converted into loans.
22. Not lend money to his client.
An advocate shall not lend money to his client for the purpose of any action or legal proceedings in which he is
engaged by such a client. An advocate cannot be held guilty for a breach of this rule, if in the course of a pending suit
or proceeding, and without any arrangement with the client in respect of the same, the advocate feels compelled by
reason of the rule of the Court to make a payment to the Court on account of the client for the progress of the suit or
proceeding.
23. Not appear for opposite parties.
An advocate who has advised a party in connection with the institution of a suit, appeal or other matter or has drawn
pleadings, or acted for a party, shall not act, appear or plead for the opposite party in the same matter.

pg. 11
Advocate’s Duty Towards the Opponents

1. Not to negotiate directly with opposing party.

An advocate shall not in any way communicate or negotiate or call for settlement upon the subject matter of
controversy with any party represented by an advocate except through the advocate representing the parties.

2. Carry out legitimate promises made.

An advocate shall do his best to carry out all legitimate promises made to the opposite party even though not reduced
to writing or enforceable under the rules of the Court.

Advocate’s Duty Towards Fellow Advocates

1. Not advertise or solicit work.

An advocate shall not solicit work or advertise in any manner. He shall not promote himself by circulars,
advertisements, touts, personal communications, interviews other than through personal relations, furnishing or
inspiring newspaper comments, or producing his photographs to be published in connection with cases in which he
has been engaged or concerned.

2. Sign-board and Name-plate.

An advocate’s sign-board or name-plate should be of a reasonable size. The sign-board or name-plate or stationery
should not indicate that he is or has been President or Member of a Bar Council or of any Association or that he has
been associated with any person or organisation or with any particular cause or matter or that he specialises in any
particular type of work or that he has been a Judge or an Advocate General.

3. Not promote unauthorised practice of law.

An advocate shall not permit his professional services or his name to be used for promoting or starting any
unauthorised practice of law.

4. An advocate shall not accept a fee less than the fee, which can be taxed under rules when the client is able to pay
more.

5. Consent of fellow advocate to appear.

An advocate should not appear in any matter where another advocate has filed a vakalt or memo for the same party.
However, the advocate can take the consent of the other advocate for appearing.

In case, an advocate is not able to present the consent of the advocate who has filed the matter for the same party,
then he should apply to the court for appearance. He shall in such an application mention the reason as to why he
could not obtain such consent. He shall appear only after obtaining the permission of the Court.

Duty towards public -

An advocate is a privileged member of the community and a gentleman beside being a citizen. He has greater
responsibility to protect the country and lead the community .

pg. 12
Duty towards country -

1) An advocate shall endeavor to make the laws suitable to the well being of the people .

2) An Advocate shall guard the liberty and freedom of the people.

3) An Advocate should protect the fundamental and human rights and respect the constitution of the nation.

4) An advocate should strive for social legislation's to accelerate the advent of socialistic pattern of society in India by
dedicating to the public service .

4)An advocate shall uphold the integrity and Unity of the nation .

5) An advocate shall educate the people to respect the law and respect for the courts and the judges .

Duty towards community -

1)An advocate shall establish Legal Aid Societies for the purpose of rendering legal assistance to really poor and
deserving persons free of any charge .

2) An advocate shall help the people local bodies such as panchayats in villages to function on sound lines, so that the
people may discharge their functions in an enlightened and responsible manner.

3) An advocate shall provide Legal education to the illiterate and working people by informing them for the rights and
legal provisions in simple language .

4)An advocate shall compose family differences and Settle petty Disputes and controversies by amicable settlement.

5) An advocate shall educate the masses on the right lines to come out of many social ills from which people are
suffering.

6) An advocate shall work with social welfare committees to promote social order in which justice ,political ,economic
and social will be assured to one and .

Ethics
Professional Ethics For Lawyer

Ethics is the activity of man directed to secure the inner perfection of his own personality. - Albert Schweitzer

Fundamental prerequisite of any profession is good ethics. Ethics denotes to human behaviour to make decisions
between what is correct and what is wrong. Professional ethics are those set code or moral principles that govern a
person's conduct in a professional workplace or work life. In the legal profession, a lawyer must obey to professional
codes for fair dealing with the client and uphold the self-possession. The Indian government has established a
statutory body known as The Bar council of India under the Advocate Act,1961.

Advocate Act, 1961

It was introduced to implement the recommendations of the All-India Bar Committee and taking into account the Law
Commission's recommendations relating to the legal profession. The Parliament has established The Bar Council of
India under section 4 of The Advocate Act,1961. As per section 7(1)(b) the council has to lay down standards of
professional conduct and etiquette for advocates. And section 49(1)(c) allows the bar council of India to make rules as
to suggest the standard of professional conduct to be observed by advocates.

Bar Council Of India Rules

Bar Council of India has framed the rules under part VI of chapter II dealing with the standard of professional conduct
of lawyers. This chapter state 39 rules or duties of the lawyer against court, client, opponent etc.
pg. 13
 Misconduct of advocates
Professional misconduct of lawyers in India

Advocacy is a noble profession and an advocate is the most accountable, privileged and erudite person of the society
and his act are role model for the society, which are necessary to be regulated. Professional misconduct is the
behaviour outside the bounds of what is considered acceptable or worthy of its membership by the governing body of
a profession. Professional misconduct refers to disgraceful or dishonourable conduct not befitting an advocat. Chapter
V of the Advocate Act, 1961, deals with the conduct of Advocates. It describes provisions relating to punishment for
professional and other misconducts. Section 35(1) of the Advocate Act, 1961, says, where on receipt of a complaint or
otherwise a State Bar Council has reason to believe that any advocate on its roll has been guilty of professional or
other misconduct, it shall refer the case for disposal to it disciplinary committee. Generally legal profession is not a
trade or business, it’s a gracious, noble, and decontaminated profession of the society. Members belonging to this
profession should not encourage deceitfulness and corruption, but they have to strive to secure justice to their clients.
The credibility and reputation of the profession depends upon the manner in which the members of the profession
conduct themselves. It’s a symbol of healthy relationship between Bar and Bench.

The Advocates Act, 1961 as well Indian Bar Council are silent in providing exact definition for professional misconduct
because of its wide scope, though under Advocates Act, 1961 to take disciplinary action punishments are prescribed
when the credibility and reputation on the profession comes under a clout on account of acts of omission and
commission by any member of the profession.

Meaning and Definition

Profession is a vocation requiring some significant body of knowledge that is applied with high degree of consistency in
the service of some relevant segment of society, by Hodge and Johnson. Occupation especially one requiring advanced
education and special training by A. S. Hornby. It is different from other types of jobs, in the sense that it requires skills
and these skills will be improved with experience.

The attributes of a profession as laid down by Dalton E. McFarland are;

1) The existence of a body of specialized knowledge or techniques

2) Formalized method of acquiring training and experience

3) The establishment of representative organization with professionalism as its goal.

4) The formation of ethical codes for the guidance of conduct.

5) The charging of fees based on services but with due regards for the priority of service over the desire for monetary
rewards.

A person who carries/undertakes the profession is called a professional. Depending on the profession a person
undertakes, he/she is identified with a special name relevant to the profession.

Misconduct, according to Oxford dictionary means a wrongful, improper, or unlawful conduct motivated by
premeditated act. It is a behavior not conforming to prevailing standards or laws, or dishonest or bad management,
especially by persons entrusted or engaged to act on another's behalf. The expression professional misconduct in the
simple sense means improper conduct. In law profession misconduct means an act done willfully with a wrong
intention by the people engaged in the profession. It means any activity or behaviour of an advocate in violation of
professional ethics for his selfish ends. If an act creates disrespect to his profession and makes him unworthy of being
in the profession, it amounts to professional misconduct. In other word an act which disqualifies an advocate to
continue in legal profession.

To understand the scope and implication of the term ‘misconduct’, the context of the role and responsibility of an
advocate should be kept in mind. Misconduct is a sufficiently wide expression, and need not necessarily imply the
involvement of moral turpitude. ‘Misconduct’ per se has been defined in the Black’s Law Dictionary to be “any
transgression of some established and definite rule of action, a forbidden act, unlawful or improper behavior, willful in
pg. 14
character, a dereliction of duty.” In a different context, the Supreme Court has opined that the word “misconduct” has
no precise meaning, and its scope and ambit has to be construed with reference to the subject matter and context
wherein the term occurs. In the context of misconduct of an advocate, any conduct that in any way renders an
advocate unfit for the exercise of his profession, or is likely to hamper or embarrass the administration of justice may
be considered to amount to misconduct, for which disciplinary action may be initiated.

Darling J, defined the expression professional misconduct in, In re A Solicitor ex parte the law society as, It is shown
that the advoate in the pursuit of his profession has done some thing with regard to it which would be reasonably
regarded as disgraceful or dishonourable by his professional brethren of good repute and competeny, then it is open
to say that he is guilty of professional misconduct.

Misconduct is sufficiently comprehensive to include misfeasance as well as malfeasance and is applied to the
professional people, it include unprofessional acts even though they are not inherently wrongful. The professional
misconduct may consist the fact in any conduct, which tends to bring reproach on the legal profession or to alienate
the favourable opinion which the public should entertain concerning it. In state of Punjab v Ram Singh the supreme
Court held that the term misconduct may involve moral turpitude, it must be improper or wrong behaviour, unlawful
behaviour, willful in character, a forbidden act, a transgression of established and definite rule of action or code of
conduct, but not mere error of judgement, carelessness or negligence in performance of duty.

The Supreme Court has, in some of its decisions, elucidated on the concept of ‘misconduct’, and its application. In
Sambhu Ram Yadav v. Hanuman Das Khatry, a complaint was filed by the appellant against an advocate to the Bar
Council of Rajasthan, that while appearing in a suit as a counsel, he wrote a letter stating that the concerned judge,
before whom the suit is pending accepts bribes, and asked for Rs. 10,000 to bribe and influence the judge to obtain a
favourable order. The Disciplinary Committee, holding that the advocate was guilty if “misconduct”, stated that such
an act made the advocate “totally unfit to be a lawyer.” The Supreme Court, upholding the finding of the Rajasthan Bar
Council held that the legal profession is not a trade or business. Members belonging to the profession have a particular
duty to uphold the integrity of the profession and to discourage corruption in order to ensure that justice is secured in
a legal manner. The act of the advocate was misconduct of the highest degree as it not only obstructed the
administration of justice, but eroded the reputation of the profession in the opinion of the public.

Section 35 in THE ADVOCATES ACT, 1961

35. Punishment of advocates for misconduct.—

(1) Where on receipt of a complaint or otherwise a State Bar Council has reason to believe that any advocate on its roll
has been guilty of professional or other misconduct, it shall refer the case for disposal to its disciplinary committee.
1[(1A) The State Bar Council may, either of its own motion or on application made to it by any person interested,
withdraw a proceeding pending before its disciplinary committee and direct the inquiry to be made by any other
disciplinary committee of that State Bar Council.]
(2) The disciplinary committee of a State Bar Council 2[***] shall fix a date for the hearing of the case and shall cause a
notice thereof to be given to the advocate concerned and to the Advocate-General of the State.
(3) The disciplinary committee of a State Bar Council after giving the advocate concerned and the Advocate-General an
opportunity of being heard, may make any of the following orders, namely:—
(a) dismiss the complaint or, where the proceedings were initiated at the instance of the State Bar Council, direct that
the proceedings be filed;
(b) reprimand the advocate;
(c) suspend the advocate from practice for such period as it may deem fit;
(d) remove the name of the advocate from the State roll of advocates.
(4) Where an advocate is suspended from practice under clause (c) of sub-section (3), he shall, during the period of
suspension, be debarred from practising in any court or before any authority or person in India.
(5) Where any notice is issued to the Advocate-General under sub-section (2), the Advocate-General may appear
before the disciplinary committee of the State Bar Council either in person or through any advocate appearing on his
behalf. 3[Explanation.—In this section, 4[section 37 and section 38], the expressions “Advocate-General” and
Advocate-General of the State” shall, in relation to the Union territory of Delhi, mean the Additional Solicitor General
of India.]
pg. 15
 The Jammu and Kashmir Registration Act

Object of the Registration Act

The purpose of the Registration Act, amongst other things, is to provide a method of public registration of documents
so as to give information to people regarding legal rights and obligations arising or affecting a particular property, and
to perpetuate documents which may afterwards be of legal importance, and also to prevent fraud. Registration lends
inviolability and importance to certain classes of documents.

Registration is deemed to prevent fraud. The object of registering a

document is to give notice to the world that such a document has been executed. Registration of a document does not
confer the title over the property as mentioned in the document registered, but provides an evidence of such
transactions being registered, based on which title over the property could be established. For registration of
documents relating to conveyance of properties belonging to Government, local bodies or religious institutions, “No
Objection Certificate” is required from the relevant authorities concerned.

Registration of a document is notice of all the facts stated in that document. The purpose of the Jammu and Kashmir
Registration Act, 1977, as disclosed in its provisions, is to provide information to people, who may deal with property
as to the nature and extent of rights which a person may have affecting that property. In other words it is to enable
people to find out whether any particular piece of property, with which they may be concerned, has been made
subject to some particular legal obligation.

Further registration gives solemnity/seeiousness of form and legal importance to certain classes of documents by
directing that they shall be registered. Another purpose is to perpetuate documents which may afterwards be of legal
importance; and the general purpose is to put on record and enquire what the particulars are and in case of land what
obligations exist with regard to it.

The provisions of the registration Act are very carefully designed to prevent forgeries, procurement of conveyances or
mortgages by fraud or undue influence - K. Roy and Bros v. Ramanthdas, AIR 1945, Cal 37. It must also be noticed that,
as observed by Supreme Court in the case of Lachhman Dass v. Ram Lal and Another, 1989 (3) SVV 99, that the real
purpose of registration is to secure that every person dealing with property, where such document requires
registration may rely with confidence upon statements contained in the document as a full and complete account of
all transactions, by which title may be affected.

The object of the Registration Act, 1908, has been succinctly putforth by
the Honourable Apex Court in SURAJ LAMP & INDUSTRIES (P) LTD. vs. STATE OF HARAYANA [(2009) 7 SCC 363] in the
following words:

“Registration provides safety and security to transactions relating to immovable property, even if the document is lost
or destroyed. It gives publicity and public exposure to documents thereby preventing forgeries and frauds in regard to
transactions and execution of documents. Registration provides information to people who may deal with a property,
as to the nature and extent of the rights which persons may have, affecting that property. In other words, it enables
people to find out whether any particular property with which they are concerned, has been subjected to any legal
obligation or liability and who is or are the person(s) presently having right, title, and interest in the property. It gives
solemnity of form and perpetuate documents which are of legal importance or relevance by recording them, where
people may see the record and enquire and ascertain what the particulars are and as far as land is concerned what
obligations exist with regard to them. It ensures that every person dealing with immovable property can rely with
confidence upon the statements contained in the registers (maintained under the said Act) as a full and complete
account of all transactions by which the title to the property may be affected and secure extracts/copies duly
certified.”

pg. 16
 The Jammu and Kashmir Registration Act
The Jammu and Kashmir Registration Act, was passed in 1920. Later, the Act was amended in 1977. It extended to the
whole of the Jammu and Kashmir and came into force in 1978. The Act is now called as the Registration Act, 1977.

The Registration Act, 1908 (which is a Central Act), now applicable to Jammu and Kashmir with effect from October 31,
the day the state will be formally bifurcated into two Union Territories.

The Jammu and Kashmir State Administrative Council (SAC) has after the JK Reorganisation Act,2019, approved
creation of a new Department of Registration to provide hassle free and speedy service to people for registration of
documents pertaining to property, mortgage etc. The new Department of Registration is being created under the
Registration Act, 1908 (which is a Central Act), now applicable to Jammu and Kashmir with effect from October 31, the
day the state will be formally bifurcated into two Union Territories.

The Department of Registration shall function under the overall administrative control of the Revenue Department.
SAC also approved appointment of Additional Deputy Commissioners and Sub-Divisional Magistrates/Assistant
Commissioners Revenue to exercise the powers of Registrars and Sub-Registrars, respectively, within such jurisdiction
to be notified by the Revenue Department for purposes of the Registration Act, 1908.

The new registration act also changes the authorities who control the registration of land transactions. Under the state
law, the registration of such transactions had to go through the judiciary.

Definitions [Section 2]

In this Act, unless there is anything repugnant in the subject or context-

(1) "addition" means the place of residence, and the profession, trade, of a person described, and, in the case of a
permanent resident of the state, his father's name, or where he is usually described as the son of his mother,
then his mother's name and in case of married women, her husband’s name;

(2) "book" includes a portion of a book and also any number of sheets connected together with a view of forming a
book or portion of a book and the information storage devices like floppy disc, hard disc or compact or any other
device;

(3) "district" and "sub-district" respectively means a district and subdistrict formed under this Act;

(4) omitted

(5) "endorsement" and "endorsed" include and apply to an entry in writing by a registering officer on a rider or
covering slip to any document tendered for registration under this Act;

(6) "immovable property" includes land, buildings, hereditary

allowances, rights to ways, lights, ferries, fisheries or any other benefit to arise out of land, and things attached to the
earth or permanently fastened to anything which is attached to the earth, but not standing timber, growing crops or
grass;

(7) "lease" includes a counterpart, kabuliyat, an undertaking to cultivate or occupy, and an agreement to lease;

(8) "minor" means a person who, according to the personal law to

which he is subject, has not attained majority;

pg. 17
(9) "movable property" includes standing timber, growing crops and grass, fruit upon and juice in trees, and
property of every other description, except immovable property; and

(10)"representative" includes the guardian of a minor and the

committee or other legal curator of a lunatic or idiot.

POWERS AND FUNCTIONS OF REGISTRAR

(1)Power to superintend and control Sub-Registrars

Every Sub-Registrar shall perform the duties of his office under the superintendence and control of the Registrar in
whose district the office of such Sub-Registrar is situate. [Section 68]

(2) Power to rectify any act or omission

Every Registrar shall have authority to issue (whether on complaint or otherwise) any order consistent with this Act
which he considers necessary in respect of any act or omission of any Sub-Registrar subordinate to him or in respect of
the rectification of any error regarding the book or the office in which any document has been registered. [Section 68]

4. Power to Hear Appeal

The registration work is carried out by the Sub-Registrars in their subareas according to their jurisdictional or territorial
sub-divisions in each district under the control of the Registrar posted for the aforesaid purpose at the district
headquarters. If the Sub-Registrar refuses the registration or lingers it for no cogent reason or the person affected
otherwise feels aggrieved from the treatment of the meted out to him at the office of the Sub-Registrar, then he may
make a complaint thereof to the Registrar of the district for redressal of his grievance.

In a case, it was held that, after a document is registered, the SubRegistrar ceases to have jurisdiction over the
matter. It is only before the registration of the document that, for reasons to be recorded, the SubRegistrar can refuse
to register the document within the mandate of
Section 71 of the Registration Act, 1908. However, such an order of the Sub-Registrar, refusing the registration of the
document in question can be appealed before the Registrar under Section 72 of the Registration Act, 1908. [Bina
Murlidhar Hemdev v. Kanhaiyalal Lokram Hemdev,
AIR 1999 SC 2171]

5. Registration by Registrars in certain cases

Any Registrar may in his discretion receive and register any document which might be registered by any Sub-Registrar
subordinate to him.[section 30]

6. Registration or acceptance for deposit at private residence

In ordinary cases the registration or deposit of documents under this Act, shall be made only at the office of the officer
authorized to accept the same for registration or deposit.

Provided that such officer may, on special case being shown, attend at the residence of any person desiring to present
a document for registration or to deposit a will, and accept for registration or deposit such document or will. [Section
31]

In the certain cases (viz; persons who by reason of bodily infirmity are unable without risk or serious inconvenience so
to attend ; persons who are in jail under civil or criminal process ; and persons exempt by law from personal
appearance in Court) ; the Registrar or Sub-Registrar, as the case may be, if satisfied that the power-of-attorney has

pg. 18
been voluntarily executed by the person purporting to be the principal, may attest the same without requiring his
personal attendance at the office.[section 33]

To obtain evidence as to the voluntary nature of the execution, the Registrar or Sub-Registrar may either himself go to
the house of the person purporting to be the principal, or to the Jail in which he is confined, and examine him, or issue
a commission for his
examination.[sec 33]

7. Enquiry before registration

No document shall be registered under this Act, unless the person executing such document, or their representatives,
assigns or agents authorised as aforesaid, appear before the registering officer.

Provided that, if owing to urgent necessity or unavoidable accident all such persons do not so appear, the Registrar, in
cases where the delay in appearing does not exceed four months, may direct that on payment of a fine not exceeding
five times the amount of the proper registration fee, in addition to the fine, if any payable under section 25, the
document may be registered.

8. Enforcing the Appearance of Executants and Witnesses

If any person presenting any document for registration or claiming under any document, which is capable of being so
presented, desires the appearance of any person whose presence or testimony is necessary for the registration of such
document, the registering officer may, in his discretion, issue a summons requiring him to appear at the registration
office, either in person or by duly authorised agent, as in the summons may be mentioned, and at a time named
therein.[section 36]

9. On registering any non-testamentary document relating to immovable property, the Registrar shall forward a
memorandum of such document to each Sub-Registrar subordinate to himself in whose sub-district any part of the
property is situate. The Registrar shall also forward a copy of such document, together with a copy of the map or
plan (if any) mentioned in section 21, to every other Registrar in whose district any part of such property is
situate.[section 66]

10. Powers of civil court

The Registrar may, for the purpose of any enquiry (under section 74), summon and enforce the attendance of
witnesses, and compel them to give evidence, as if he were a Civil Court, and he may also direct by whom the whole or
any part of the costs of any such enquiry shall be paid, and such costs shall be recoverable as if they had been awarded
in a suit under the Code of Civil Procedure.

PART III: OF REGISTRABLE DOCUMENTS

Section 17: Documents of which registration is compulsory:

Section 17 of the Indian Registration Act 1908, deals with the documents that are compulsory to be registered.

(1) The following documents shall be registered, namely:

(a) instruments of gift of immovable property:

The word gift is not defined in the Registration Act but in common parlance it is understood in much the same sense as
it is defined in section 122 of the Transfer of Property Act, Which reads: “Gift is the transfer of certain existing movable
or immovable property made voluntarily and without consideration, by one person called donor, to another called the
pg. 19
done and accepted by or on behalf of done”. Such acceptance must be made during the lifetime of the donor and
while he is still capable of giving. If the done dies before acceptance the gift is void. Section 123 of the Transfer of
Property Act requires that the transfer of immovable property by way of gift must be effected by a registered
instrument signed by or on behalf of the donor, and attested by at least two witnesses.

Thus, a document by which rights in immovable property are

surrendered without any consideration is in effect a deed of gift which under section 17 (a) requires registration – Hira
singh v. Punjab Singh, 1925 Lah 183. Section 17 (1) (a) is not attracted when the deed of gift relates to immovable
property , but all instruments of gift of immovable property must be registered whatever be the value of property –
Proto Kolitah v. Mottea Kolitah.

An unregistered gift deed, therefore, cannot be used to create a title to immovable property – Rup Narain Panday v.
Sheo Dagar Tewari, 1939. An instrument of gift which effect an immediate transfer of ownership falls under this
clause though the instrument provides that whatever called upon by the done, the donor would execute a registered
gift deed – S. Chinna Buddha Sahib v. Raja Subamma, 1954.

Muslim Gifts Not Compulsory Registrable:

All instruments of gift except those executed by a Muslim are compulsorily registrable under the Act. The Apex Court
in Hafeeza Bibi v. Shaikh Fareed, 2011, held that the position is well settled, which has been stated and restated time
and again, that the three essentials of a gift under Mohammadan Law are: 1. declaration of the gift by the donor; 2.
acceptance of the gift by the done and 3. delivery of possession.

Though, the rules of Mohammadan Law do not make writing essential to the validity of a gift; an oral gift fulfilling all
the essentials make the gift
complete and irrevocable. However, the donor may record the
transaction of gift in writing.

Asaf A. A. Fyzee in Outlines of Mohammadan Law, states in this regard that writing may be of two kinds: (i) it may
merely recite the fact of a prior gift; such a writing need not be registered. (ii) it may itself be the instrument of gift;
such a writing in certain circumstances requires registration. He further says that if there is a declaration, acceptance
and delivery of possession coupled with the formal instrument of a gift, it must be registered. Conversely, the author
says that registration, however, by itself without the other necessary conditions, is not sufficient. Thereupon the
Division Bench of the Court observed: “In our opinion, merely because the gift is reduced to writing by Mohammedan
instead of it having been made orally, such writing does not become a formal document or instrument of gift.

When a gift could be made by Mohammadan orally, its nature and character is not changed because of it having been
made by a written document. What is important for a valid gift under Mohammadan Law is that three essential
requisites must be fulfilled. The form is immaterial if all the three essential requisites are satisfied constituting valid
gift, the transaction of gift would not be rendered invalid because it has been written on a plain piece of paper. The
distinction that if a written deed of gift recites the factum of prior gift then such deed is not required to be registered
but when the writing is contemporaneous with the making of the gift, it must be registered, is inappropriate and does
not seem to us to be in conformity with the rules of gift in Mohammadan Law”.

The Apex Court further observed: “We find ourselves in express agreement with the statement of law from Mulla;
Principle of Mohammadan Law, page 120….(i.e.)……it is not the requirement that in all cases where the gift made is
contemporaneous to the making of the gift then such deed must be registered under section 17 of the Registration
Act. Each case would depend on its own facts”. In this case the Supreme Court approved the views of Calcutta High
Court in Nasib Ali case and the Gauhati High Court in Md. Hesabuddin case.

The Court further observed that the judgments delivered by Andhra

Pradesh High Court, Jammu and Kashmir High Court and Madras High
Court do not lay down the correct law - Hafeeza Bibi v. Shaikh Fareed, 2011.

pg. 20
 Contempt of court

Anything that curtails or impairs the freedom of limits of the judicial proceedings must of necessity result in hampering
of the administration of Law and in interfering with the due course of justice. This necessarily constitutes contempt of
court. Oswald defines contempt to be constituted by any conduct that tends to bring the authority and administration
of Law into disrespect or disregard or to interfere with or prejudice parties or their witnesses during litigation.
Halsbury defines contempt as consisting of words spoken or written which obstruct or tend to obstruct the
administration of justice. Black Odgers enunciates that it is contempt of court to publish words which tend to bring the
administration of Justice into contempt, to prejudice the fair trial of any cause or matter which is the subject of Civil or
Criminal proceeding or in anyway to obstruct the cause of Justice.

In case of India, under Section 2(a) of the Contempt of Courts Act of 1971 defines contempt of court as civil contempt
or criminal contempt, it is generally felt that the existing law relating to contempt of courts is somewhat uncertain,
undefined and unsatisfactory. The jurisdiction to punish for contempt touches upon two important fundamental rights
of the citizens, namely, the right to personal liberty and the right to freedom of expression. It was, therefore,
considered advisable to have the entire law on the subject scrutinized by a special committee.

In pursuance of this, a committee was set up in 1961 under the chairmanship of the late H N Sanyal, the then
additional solicitor general. The committee made a comprehensive examination of the law and problems relating to
contempt of court in the light of the position obtaining in our own country and various foreign countries. The
recommendations, which the committee made, took note of the importance given to freedom of speech in the
Constitution and of the need for safeguarding the status and dignity of courts and interests of administration of
justice.

The recommendations of the committee have been generally accepted by the government after considering the view
expressed on those recommendations by the state governments, union territory administrations, the Supreme Court,
the high courts and the judicial commissioners.

A case of contempt is C.K. Daphtary v. O.P. Gupta (1971 1 SCC 626), the respondent published and circulated a booklet
in public purporting to ascribe bias and dishonesty to Justice Shah while acting in his judicial capacity. Mr C.K.
Daphtary, along with others, filed a petition alleging that the booklet has scandalised the judges who participated in
the decision and brought into contempt the authority of the highest court of the land and thus weakened the
confidence of the people in it. The Supreme Court, in examining the scope of the contempt of court, laid down that the
test in each case is whether the impugned publication is a mere defamatory attack on the judge or whether it will
interfere with the due course of justice or the proper administration of law by the court.

Law Point

For the concept of Contempt of Court, the Contempt of Court Act, 1971 was passed which dealt with such a concept.
Article 129 and 215 of the Constitution of India empowers the Supreme Court and High Court respectively to punish
people for their respective contempt. Section 10 of The Contempt of Courts Act of 1971 defines the power of the High
Court to punish contempts of its subordinate courts. Power to punish for contempt of court under Articles 129 and
215 is not subject to Article 19(1)(a).

Essentials

The elements generally needed to establish a contempt are:

1. the making of a valid court order,

2. knowledge of the order by respondent,

pg. 21
3. ability of the respondent to render compliance, and

4. wilful disobedience of the order.

Types
According to Lord Hardwick, there is a three-fold classification of Contempt:
1. Scandalizing the court itself.
2. Abusing parties who are concerned in the cause, in the presence of court.
3. Prejudicing the public before the cause is heard.
However in India contempt of court is of two types:
1. Civil Contempt
Under Section 2(b) of the Contempt of Courts Act of 1971, civil contempt has been defined as wilful disobedience to
any judgment, decree, direction, order, writ or other process of a court or wilful breach of an undertaking given to a
court.
2. Criminal Contempt
Under Section 2(c) of the Contempt of Courts Act of 1971, criminal contempt has been defined as the publication
(whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the
doing of any other act whatsoever which:
(i) Scandalises or tends to scandalise, or lowers or tends to lower the authority of, any court, or

(ii) Prejudices, or interferes or tends to interfere with the due course of any judicial proceeding, or

(iii) Interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other
manner.

(a) 'High Court' means the high court for a state or a union territory and includes the court of the judicial commissioner
in any union territory.

Object

There can be no doubt that the purpose of contempt jurisdiction is to uphold the majesty and dignity of law courts and
their image in the minds of the public is no way whittled down. If by contumacious words or writings the common man
is led to lose his respect for the judge acting in the discharge of his judicial duties, then the confidence reposed in the
courts is rudely shaken and the offender needs to be punished. In essence of law of contempt is the protector of the
seat of justice more than the person sitting of the judge sitting in that seat.

Third Party

A third party to the proceeding may be guilty of contempt of court if they have a part to play in the offence. In LED
Builders Pty Ltd v Eagles Homes Pty Ltd ([1999] FCA 1213) Lindgren J stated:

"It is not necessary to show that a person who has aided and abetted a contempt of court was served with the order
breached. It is necessary to show only that the person sought to be made liable knew of the order."

Limitation

The Limitation period for actions of contempt has been discussed under Section 20 of the Contempt of Courts Act of
1971 and is a period of one year from the date on which the contempt is alleged to have been committed.

pg. 22
Punishment for Contempt of Court:

According to Section 12 of the Contempt of Courts Act, 1971, a contempt of court may be punished with simple
imprisonment for a term which may extend to six months, or with fine which may extend to two thousand rupees, or
with both.

Provided that the accused may be discharged or the punishment awarded may be remitted on apology being made to
the satisfaction of the court. Explanation - An apology shall not be rejected merely on the ground that it is qualified or
conditional if the accused makes it bona fide.

Sub-Section (2) provides that notwithstanding anything contained in any law for the time being in force, no court shall
impose a sentence in excess of that specified in sub section for any contempt either in respect of itself or of a court
subordinate to it.

Sub-Section (3) provides that notwithstanding anything contained in this section, where a person is found guilty of a
civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of
imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that the he be detained in a
civil prison for such period not exceeding six months as it may think fit.

Sub-Section (4) provides that, where the person found guilty of contempt of court in respect of any undertaking given
to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was
responsible to, the company for the conduct of business of the company, as well as the company, shall be deemed to
be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil
prison of each such person.

Provided that nothing contained in this sub section shall render any such person liable to such punishment if he proves
that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its
commission.

Sub-Section (5) provides that, notwithstanding anything contained in sub section (4) where the contempt of court
referred to therein has been committed by a company and it is provided that the contempt has been committed with
the consent or connivance of, or is attributable to any neglect on the part of, any director, manger, secretary or other
officer of the company, such director, manager , secretary or other officer shall also be deemed to be guilty of the be
contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of such
director, manager, secretary or other officer.

Leading Case on contempt of court:

In Re: 1. Shri Sanjiv Datta, Deputy Secretary, Ministry of Information & Broadcasting [1995 Scc (3) 619], a Suo moto
contempt notice issued to a public servant and his advocates. Affidavit was filed in the Supreme Court containing
allegations against the Court. Allegations made with intention of casting aspersions on the Court and attributing
motives to it. Accusing the Court of making mockery of established policy of Government of India by permitting a
foreign agency to undertake broadcasting from India, against national interest thereby undermining sovereignty of the
nation. Unconditional apology of public servant not accepted. Allegations made by the contemnor were intentional.
Made with full knowledge of its grave implications and therefore has potentiality of mischief. If not curbed firmly, may
assume proportion grave enough to sabotage the rule of law. Unconditional apology of advocates, Accepted for want
of knowledge of allegations.
(Officers-let your mind and not the heart speak).

III. CONSTITUTIONAL VALIDITY OF CONTEMPT LAW:

pg. 23
Power to punish for contempt is inherent in Court of Records. This was with a view to maintain the due administration
of justice. It is pertinent to mention that prior to the enactment of the Constitution of India, 1950 the statutory
recognition of this position has been formulated as early as in 1935 in section 220(1) of the Government of India Act,
1935. It declared that every High shall be a Court of Record. Finally, we see the inclusion of this section in Article 215 of
the Constitution of India, 1950 which reads as under:-
Article 215, “High Courts to be Court of Record-Every High court shall be a Court of Record and shall have all powers of
such a court including the power to punish for contempt of Court itself”.

The Supreme Court being an Apex Court recognised as a Court of Record and has inherent power to punish for
contempt in relation thereto, as provided in Article 129 of the Constitution which reads as under: “129 Supreme Court
shall be a Court of Record and shall have all the powers of such a court including the power to punish for contempt of
itself.
Parliament and the State Legislature both have power to make laws with respect to any of the subject enumerated in
list III (concurrent list) of the seventh schedule of the Constitution. The parliament has exclusive power to make laws
with respect to any of the matters are subjects enumerated in list -I (Union list) of the 7th of the Constitution. The
state legislature has exclusive power to make laws with respect of any of the matter or subjects enumerated in list II
(State list) of the seventh scheduled of the Constitution. Entry 77 of the list is as follows, “Constitution, organization,
jurisdiction and powers of the Supreme Court (including contempt for such a court) and the fees taken therein;
persons entitled to practise before the Supreme Court. Entry15 of list II is as follows "contempt of court but not
including contempt of Supreme Court.”
On the basis of these provisions, the Sanyal Committee has derived a conclusion that the legislature is fully competent
to legislate with respect to competent of court subject only to the qualification that the legislature cannot take away
the power of the Supreme Court or the High Court to punish for contempt or vest that power in some other court.
Besides, the Sanyal Committee has observed that Article 142 (2) of the Constitution of India provides that the Supreme
Court shall have all and every power to make any order for the purpose of securing the attendance of any person, the
discovery or production of any document, or the investigation or punishment of any contempt of itself. However, an
important limitation on the legislative power is that it should not be so exercised as to stultify the status and dignity of
the superior Courts.
According to article 372 (1) of Constitution of India, all the laws in force in the territory of India immediately before the
commencement of this
Constitution shall continue in force therein until altered or repealed or amended by a competent legislature or other
competent authority. That is why section 22 of the competent of Courts Act 1971, it makes it clear that the provision
of this Act shall be in Addition to and not in derogation of the provision of any other law relating to contempt of
courts.
The Constitution (Jammu and Kashmir) Order, 1954, makes it clear that entry 14 is not applicable to the State of
Jammu and Kashmir. Consequently, the provisions of contempt law enacted by the legislature are not applicable to the
State of Jammu and Kashmir except the provisions relating to the contempt of the Supreme Court. With this object a
proviso added to Section 1 of the Contempt of Courts Act, 1971, which provides that the Act shall not apply to the
State of Jammu and Kashmir except to the extent to which the provisions of this Act relate to the contempt of the
Supreme Court.

CONTEMPT LAW IN J&K: THE JAMMU AND KASHMIR CONTEMPT OF COURTS ACT, 1997

Object of the Act: The Jammu and Kashmir Contempt of Courts Act,
1997, was enacted by the Jammu and Kashmir State Legislature in the forty eight year of the Republic of India to
define and limit the power of certain Courts in punishing contempt of Courts and to regulate their procedure in
relation thereto. The Act received assent of the Governor on 29th September, 1997 and published in Government
Gazette, dated 1st October, 1997. The Contempt of Courts Act, 1971, enacted by Parliament, applies to the State of
Jammu and Kashmir only in so far it relates to the Contempt of the Supreme Court as Parliament has not legislative
competence to enact on this subject in respect of the High Court and the Courts subordinate to it. The State
Legislature has not so far enacted any law to define and regulate the contempt proceedings on the analogy of the
pg. 24
 Central Act of 1971. Even the Hon’ble Chief Justice of the High Court has desired that State should have contempt of
courts Act. The matter was considered in secretaries meeting and it was decided to have a compressive law on the
Contempt of Courts in the State. Accordingly, the draft bill titled the Jammu and Kashmir contempt of courts Bill, 1995
has been prepared on the analogy of the contempt of courts Act, 1971. The object of the proposed legislation is to
regulate the law on the subject keeping in view the provisions of Section 94 and 157(2) of the constitution of Jammu
and Kashmir and clause 23 of the letters patent which at present confer power on the High Court to punish for its
contempt and for contempt of courts subordinate to it. In view of the fundamental rights guaranteed to the citizens it
has become imperative to have the statutory law on contempt so as to strike a harmony between the rights
guaranteed to an individual under the constitution and the power of the courts to punish for its contempt. The draft
bill envisages a detailed and comprehensive procedure for conduct of contempt proceedings. Finally, the Bill was
passed in the year 1997. The Act contains 23 Sections.

1. Short title and extent - (l) This Act may be called The Jammu and Kashmir Contempt of Courts Act, 1997.

2. Definitions - In this Act, unless the context otherwise requires,-

(a) "Contempt of Court" means civil contempt or criminal contempt;

(b) "civil contempt" means willful disobedience to any judgment, decree; direction, order, writ or other process of a
Court or willful breach of an undertaking given to a Court;

(c) "criminal contempt" means the publication (whether by words, spoken or written, or by sings, or by visible
representations, or otherwise) of any matter or the doing of any other act whatsoever which –

(i) scandalises, or tends to scandalise, or lowers or tends to lower the authority of, any Court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct; the administration of justice in any
other manner;

(d) High Court means the High Court of the State of Jammu and Kashmir.

Bench Bar Relation:

Bar-Bench Relation in law refers to the cordial relationship between the Advocates and the Judges. The Bar
(Advocates) and Bench (Judges) play an important role in the administration of justice. The judges administer the law
with the assistance of the lawyers. The lawyers are the officers of the court. They are expected to assist the court in
the administration of justice. As the officers of the court the lawyers are required to maintain respectful attitude
toward the court bearing in mind that the dignity of the judicial office is essential for the survival of the society.
Mutual respect is necessary for the maintenance of the cordial relations between the Bench and Bar.

The opinion of our Supreme Court in the context of Bench- Bar Relation has been clearly laid down in P.D. Gupta v.
Ram Murti and Others1 as follows: "A lawyer owes a duty to be fair not only to his client but also to the court as well
as to the opposite party in the conduct of the case. Administration of justice is a stream which has to be kept pure and
clean. It has to be kept unpolluted. Administration of justice is not something which concerns the Bench only. It
concerns the Bar as well. The Bar is the principal ground for recruiting judges. Nobody should be able to raise a finger
about the conduct of a lawyer. Actually judges and lawyers are complementary to each other. The primary duty of the
lawyer is to inform the court as to the law and facts of the case and to aid the court to do justice by arriving at the
correct conclusions. Good and strong advocacy by the counsel is necessary for the good administration of justice.
Consequently, the counsel must have freedom to present his case fully 1 AIR 1998 SC 283. and properly and should not
be interrupted by the judges unless the interruption is necessary."

pg. 25
 JAMMU & KASHMIR LIMITATION ACT

The Jammu & Kashmir Limitation Act, was passed in 1938. At present, the Jammu & Kashmir Limitation Act, 1995 is in
operation.

Significance and object of Law of Limitation:

The object of the limitation Act is to restraint the claimants who opt to invoke their rights belatedly and do not seek
justice in time. Unlimited and perpetual litigation disturbs the peace of society and leads to disorder and confusion. A
constant dread of judicial process and a feeling of insecurity retard the growth and prosperity of a nation. The law of
limitation prescribes this limit. The Romans, therefore, had the maxim “interest republicae ut sit fines litum” (the
interest of the state requires that a period should be put to litigation). The law of limitation prevents persons from
enforcing their own rights, and disputing the rights of others, after a certain period of time, and thus quits titles and
enhances the value of property. It enables men to reckon upon security from further claim and to act upon it. The
necessity for putting a limit to litigation arises also from the perishable nature of man and all that belongs to him.

The limitation Act lays down definite rules of law, giving to the people for whose benefit they have been framed a
guarantee that after a lapse of certain period they may rest in peace and rely upon titles or other rights which they
have acquired. Law of limitation enjoys alertness upon the citizen by making a citizen who delays too long to lose his
right altogether. The law assists the vigilant and not those who sleep over their rights -”Vigilantibus non dermentibus
jura subvenient”.

The law of limitation only bars the remedy of a person by means of a suit, it does not deprive him of his right if it can
be exercised in any other manner than by means of a suit. Thus, where a suit or debt is barred by limitation, the debt
nevertheless remains; it is open to the debtor to pay the barred debt and the payment cannot be recalled on the
ground of failure of consideration.

Section 28 of the J&K Limitation Act, creates an exception to the aforesaid principle. It provides that at the
determination of the period hereby limited to any person for instituting a suit for possession of any property, his right
to such property shall be extinguished.

Law of Limitation is statute of repose, peace and justice:

Law of limitation can well be described as statute of repose because it extinguishes disputes and settles rival claims
within limited period. It secures peace as it ensures security of rights, and it secures justice, as by lapse of time,
evidence in support of rights may have been destroyed. Of late years the desire has been general, both on the part of
the legal profession and on the part of the public, to abridge the length of the time during which actions may be
commenced, and there can be little (if any) doubt that the policy of the statutes of limitation is good, and is one to be
encouraged. They are such legislative enactments as prescribed by the periods within which actions may be brought
upon certain claims, or within which certain rights may be enforced.

The law of limitation is founded on public policy, its aim being to secure quiet of the community, to suppress fraud and
perjury, to quicken diligence and prevent oppression.

Definitions (section 2)

In the Act the definitions have been given under section 2 which inter alia state as under:

(1) "applicant" includes any person from or through whom an applicant derives his right to apply;

(2) "bill of exchange" includes a hundi, brat and a cheque;

(3) "bond" includes any instrument whereby a person obliges himself to pay money to another, on condition that
the obligation shall be void if a specified act is performed, or is not performed, as the case may be;

pg. 26
(4) "defendant" includes any person from or through whom a defendant derives his liability to be sued;

(5) Omitted;

(6) "foreign country" means any country other than India;

(7) "good faith" nothing shall be deemed to be done in good faith which is not done with due care and attention;

(8) "plaintiff" includes any person from or through whom a plaintiff derives his right to sue;

(9) "promissory note" means any instrument whereby the maker engages absolutely to pay a specified sum of
money to another at a time therein limited, or on demand, or at sight;

(10) "suit" does not include an appeal or an application;

(11) "trustee" does not include a benamindar, a mortgagee remaining in possession after the mortgage has been
satisfied, or a wrongdoer in the possession without title.

pg. 27